ON REHEARING.
Brace, J.— On rehearing by the court in lane all the judges agree in reversing and remanding the cause for new trial; Sherwood and Macfablane, JJ., concurring in the foregoing opinion; Gantt, J., also, except in paragraph 2; Black, C. J., and Burgess and Barclay, JJ., expressing their views in separate opinions.
Black, C. J.— 1. It is the duty of persons operating a train of cars along or across a highway to use ordinary care to avoid injuring persons, traveling thereon, and this duty requires such operatives to be vigilant and watchful whether there is or is not an ordinance or law regulating the rate of speed. A negligent failure to perform this duty, causing injury to another is actionable.
2. The running of cars at a rate of speed prohibited by a municipal ordinance is negligence per se. The defendant is liable for injuries caused by running its cars at a prohibited rate of speed though the operatives did all in their power to avoid the injury after the peril of the injured party was discovered by them; for inability to stop the train in time to avoid the injury is no excuse, if the inability to stop in time to avert the calamity was due to the prohibited rate of speed at which the train was running. In other words the defendant is liable if the accident could have been avoided by the use of ordinary care had the cars been running at a rate of speed not prohibited by ordinance.
*2273. The foregoing propositions relate to the negligence of the defendant. The following rules relate to contributory negligence: There can be no recovery where the injured party and the defendant are both at fault, and the negligence of each contributed proxinaately and directly to the injury. But where the negligence of the defendant is the proximate cause of the injury, while the negligence of the injured party is ■only a remote cause or a mere condition, the plaintiff may recover; such negligence of the injured person is no defense. Again, “The plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains 'was proximately caused by the omission of the defendant, after having such notice of the plaintiff’s danger as would put a prudent man upon his guard, to use ■ordinary care for the purpose of avoiding such injury.” 1 Shearman & Redñeld on Negligence [4 Ed.], section 99.
4. The court at the request of the defendant told the jury that if the deceased was negligent at the time and place she was killed, and that such' negligence directly contributed to her death, then the plaintiff could not recover, although the defendant was also negligent. The same' principle is recognized in the first insruction given at the request of the plaintiff. It follows from the principles of law before stated that these instructions were proper.
The difficulty in the case arises out of the fifth Instruction given at the request of the plaintiff, which •contains these propositions: First, though the deceased was guilty of negligence in stepping upon the track, yet if thereafter the servants in charge of the train discovered, or by the exercise of ordinary care could have discovered her peril, and by the use of ordinary care could have avoided the injury, then such negligence on her part *228constitutes no defense; second, if the inability of the persons in charge of the train to stop it in time to avoid the injury, after they saw the deceased in a dangerous position, was due to the fact that they were running the train at a prohibited rate of speed, then the negligence of the' deceased in stepping upon the track in front of the train is no defense.
It was held in Scoville v. Railroad, 81 Mo. 434, citing prior cases in this court, that to make the defendant liable,, where both parties were negligent, the negligence of the defendant must occur after the defendant knew, or, by the exercise of ordinary care might have known of the danger of the deceased. And it was said in Hilz v. Railroad, 101 Mo. 36, “If the failure to so discover him was the result of the omission of that measure of duty, which the. law requires, in view of the locality, circumstances and dangers to be anticipated, and due observance thereof would have enabled the persons in control of dangerous agencies of this sort to have avoided the injury by the use of reasonable care,, then and in such case, such omission and want of reasonable care is, under the law, held the proximate cause of the injury, and liability for the resulting damage may then exist, notwithstanding the negligence of the person injured.” It was certainly the duty of the defendant here to obey the ordinance regulating the rate of speed. The principle of these cases applied to this one is this: If after the defendant knew, or by obeying the command of the ordinance regulating the rate of speed might have known, of the danger of the deceased in time to have avoided the injury, then the defendant, is liable notwithstanding the negligence of the deceased. It seems to me the instruction, in both of its branches, conforms to the rule stated in the above cases as well as that stated in Shearman & Redfield on Negligence. The second *229branch of the instruction is but a specific application of the “might have seen” doctrine set out in the first.
While the instruction states facts amounting to negligence on the part of the defendant, which was an immediate and proximate cause of the injury, and while it, is unobjectionable so far as it defines negligence of the defendant, and while it would be a correct statement of the law in some cases, still I think it is inapplicable to the case in hand. It was designed to and does take the question of contributory negligence away from the jury. It is a conceded fact that the deceased actually saw the approaching cars just before she stepped upon the track. She voluntarily and knowingly placed herself in this position. It was a position of obvious and manifest danger, unless the cars were so far from her that she had time to cross the track in safety, had the train been running at a lawful rate of speed. In view of the fact that the deceased knowingly placed herself on the track in front of an approaching train, I think the question of contributory negligence should have been left to the jury to be determined in view of all the circumstances. To sustain the instruction we must pronounce the conclusion from the facts therein recited that the injury was wilfully inflicted by the servants of the defendent, or that the negligence of the deceased was a mere remote contributing cause of the injury. If all the facts stated in the instruction be found for the plaintiff, it would' not necessarily follow that the injury was wilfully inflicted; nor do I see how it can be said, as a conclusion of law from the facts recited in the instruction, that her negligence was remote in the chain of causation, when we attach to those facts the further conceded fact that she knowingly stepped upon the track in front of a train which she knew was approaching her.' Surely she *230ought to be required to take that care of herself which others are required to take of her.
The circumstances of this case are such that in my opinion the questions whether deceased was negligent, and whether her negligence was an immediate and proximate contributing cause should be submitted to the jury on all the circumstances of the case. The questions are: Did she act as a prudent person would
have acted under the same circumstances? and did her want of such care contribute directly and proximately to the injury? I regard the case of Railroad v. Ives, 144 U. S. 408, as an authority for, not against, the proposition that the question of contributory negligence here is one for the jury to determine on all, not a part, of the circumstances in evidence.
To avoid any misunderstanding, I repeat, there is-no objection to this fifth instruction given at the request of the plaintiff, so far as it defines negligence on the part of the defendant. The error *in it is that it cuts-out the defense of contributory negligence, a defense, which, in my opinion, under the facts of this case, should have been submitted to the jury for them to-determine upon all the evidence. The court, I agree, did not err in giving the plaintiff’s fourth instruction.
SEPARATE OPINION.
Barclay, J.— Finding myself unable to agree to some of the propositions asserted in the opinion of my learned brother Brace, it seems appropriate to indicate distinctly the points of difference.
1. What force should be given to reasonable municipal regulations of the speed of railway trains, and to similar local enactments for the protection of life and property, is the question of first consideration. Its importance is obvious.
*231The facts of the case have been already stated and need not be repeated.
The judgment against the railway company is to be set aside because the circuit judge gave the fifth instruction quoted. It deals with the liability of defendant on the assumption that plaintiff was negligent in stepping on the track before she fell. The majority of my brethren concede that the first half of the instruction is entirely correct. That concession is satisfactory as far as it goes.
The doctrine it recognizes was announced in Missouri more than thirty years ago, following the leading English case of Davies v. Mann (1842), 10 M. & W. 546. It has since been often applied; though there are, nevertheless, instances in the reports (some of which are referred to, with approval, in the leading opinion here) in which it has been wholly ignored. That doctrine bears so directly on the merits of this case that its full meaning should be appreciated. It has been formulated by the highest court in England, thus:
“The plaintiff in an action for negligence cannot succeed, if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him” (the defendant). Radley v. London, etc., Co. (1876), L. R. 1 App. cases, 759.
*232The supreme court of the United States ip recent cases has approved and followed the same rule: Coasting Co. v. Tolson (1891), 139 U. S. 551; Railroad v. Ives (1892), 144 U. S. 408. It is universally recognized wherever the principles of the modern common law prevail, though it is not necessary here to mention more than a few more precedents applying it, outside of this state. Scott v. Dublin, etc., Co. (1861), 11 Irish C. L. 377; Silliman v. Lewis (1872), 49 N. Y. 379; Reis v. Wendell (1884), 5 Hawaii, 140; Beckett, v. Grand Trunk, etc., Co. (1885), 8 Ontario, 601; Pierce v. Cunard Co. (1891), 153 Mass. 87; Valin v. Milwaukee, etc., Co. (1892), 82 Wis. 1.
It is a serious error to suppose that the proper application of that rule would “practically abrogate the doctrine of contributory negligence.”
As was pointed out with great clearness by Judge Scott in Adams v. Wiggins Ferry Co. (1858), 27 Mo. 95, the negligence of plaintiff, which will defeat his recovery must be such as “actively” (or as some other judges say, “directly”) contributes to the injury “at the time of its commission;” and “where there is a mere passive fault or negligence on the part of the plaintiff, the defendant is bound to the observance of ordinary care and prudence in order to avoid doing him>a wrong.”
This distinction has been well expressed in a distant quarter of the globe by Sir Georg-e Innes in Brown v. Com'r for Railways (1887), 9 New South Wales, L. R. 92, thus: “The two rules perhaps may appear to conflict, but are really not in any way inconsistent when it is borne in mind that the negligence' on the part of the plaintiff, which is to preclude him from recovering, must be negligence immediately and proximately conducing to the injury.”
*233So that the negligence of the injured party is a defense, in a case like this, only when it enters into the result as a direct or efficient cause thereof; but where that negligence distinctly precedes the final act producing the injury, and that act might have been avoided by defendant’s exercise of reasonable care, the prior negligence is not to be regarded, juridically, as the proximate or direct cause of the damage. Fitch v. Pac. R’y Co. (1870), 45 Mo. 322; Brown v. Hannibal, etc., Co. (1872), 50 Mo. 461; Werner v. Citizens, etc., Co. (1884), 81 Mo. 368.
This rule does not nullify the other proposition that where negligence of the injured party directly contributes to the result, there can be no recovery, under the principles of the common law.
Sometimes it is a question of fact whether the negligence, just mentioned, directly contributed to the injury, or whether it was so remote as to be a mere condition, and not a proximate cause. Meyer v. Pac. R’y Co. (1867), 40 Mo. 151; Morrissey v. Wiggins Ferry Co. (1869), 43 Mo. 380; Karle v. Kansas City, etc., Co. (1874), 55 Mo. 476.
On the other hand, the admitted facts may at times tend so plainly to an inference of negligence, directly contributing to the result, as to exclude any other reasonable conclusion; and in such case the court may so declare by virtue of its right to determine the evidential force of facts submitted for its action.
That these priciples are frequently difficult of practical application, goes without saying. But that furnishes no sufficient reason to discard the valuable rule of Davies v. Mann, 10 M. & W. 546 (of which Adams v. Wiggins Ferry Co., 27 Mo. 95, is the counterpart in Missouri), in order to save the doctrine of contributory negligence from its supposed peril. Each has its proper, useful and just place in our jurisprudence; and *234the efforts of those who strive to apply the law with a, due regard to its vital principles, will, no doubt, in time secure a more general understanding of the proper part that each of those rules should play in the administration of justice.
Some of my associates (acknowledging in a measure the force of the doctrine of Davies v. Mann) admit, in the leading opinion, that the circumstances of the present case are such that, notwithstanding Mrs. Sullivan may have been negligent in going on the track, yet defendant would be liable if it failed to exercise ordinary care to discover and to avert her peril when there, as stated in the first part of instruction 5. This rule is conceded to be established law. Why? Becaúse the principles of general jurisprudence, deduced by the judges from the precepts of the common law, are held to impose on defendant a duty to use reasonable care to avoid the consequences of Mrs. Sullivan’s prior negligence.
Now just at this point my view of the case, with due deference to the judgment of my associates, differs from that given in the opinion of my learned brother Beace.
If, in such circumstances, defendant is liable for negligence resulting from the breach of a duty imposed upon it by the general principles of law (as construed by the courts), why should not defendant be held liable, on the same facts, for breach of a duty imposed upon it by positive law, namely, the ordinance regulating the speed of trains in Kansas City? It has heretofore been often held, in this state, that the failure to observe such municipal regulations is of itself negligence. Liddy v. St. Louis R’y Co. (1867), 40 Mo. 507; Dahlstrom v. St. Louis, etc., Co. (1892), 108 Mo. 525. Yet in the leading opinion now delivered the position is taken *235that, for negligence of that kind, defendant is not liable, if prior negligence of Mrs. Sullivan existed, but that her negligence was sufficiently remote to warrant a recovery if defendant had been guilty of negligence of a different sort, namely, failing to use reasonable care to discover her peril and to avert it.
This distinction between different sorts of negligent acts of the defendant seems to be entirely artificial, and untenable on principle. Worse than that, its application has the effect to excuse the defendant from performing one duty (said to rest upon it by reason of common law principles) because of its failure to observe another duty enjoined on it by the ordinance.
These ordinances contemplate that persons are likely to be upon the public streets where defendant has its tracks, and their design is to protect the lives, limbs and property of citizens lawfully using the highway, concurrently with the railway company. If a train is moving slowly,'that care which its managers are bound to use, to avoid*running people down, will be far more effective than if the train is going at a great speed.
It appears in evidence that if the train had been running at the ordinance rate, it could have been stopped within about ten feet; but, in point of fact, it was stopped “about a block” after passing the place of accident. All the evidence establishes that it was running at a higher rate of speed than the ordinance permitted.
To hold that defendant was bound only by the duty to use ordinary care to discover and avert injury to Mrs. Sullivan, however fast' the speed of the train might be, is, in my opinion, to take the life out of the ordinance, and to put a premium on its violation.
Such a ruling practically gives defendant a great advantage from its own wrong and seems to me to be out of harmony with the reason and spirit of the law of negligence. Under that ruling, the greater the speed, *236the less the capacity to use care to avoid danger to persons on the street, and hence the less the liability. To' such a conclusion my dissent is respectfully but earnestly interposed.
In my judgment the duty to obey the ordinance was as imperative as that of using care to discover and avert peril to Mrs. Sullivan; the violation of either was negligence; and if the breach of the ordinance prevented the defendant from performing its further duty to use reasonable care to avoid injury to her, then, it should be held liable for that breach.
That proposition was distinctly laid down in Maher v. Atlantic, etc., Co. (1876), 64 Mo. 267. It was repeated with emphasis in Dunkman v. Wabash, etc., Co., (1888), 95 Mo. 232, a case which has since been often cited as authority; and, upon a careful, reading of the opinion and of the instructions in Kelly v. Union Railway, etc. Co. (1888), 95 Mo. 279, it will be seen that this precise question was involved 'in that case and was decided, without dissent, in the same way. Those decisions appear to me to be sound in principle and should not be overruled.
In Prewitt v. Eddy (1893), 115 Mo. 283; 21 S. W. Rep. 742, it was declared by the second division that “after a careful review of the doctrine of contributory negligence we find no warrant in authority or in reason for making any distinction in the character of defendant’s negligence whether it is the violation of some statutory provision or municipal ordinance or is such by virtue of the common law.” It is neither here nor there now whether that theory was correctly applied to the facts of that litigation. The principle, at least, was plainly laid down and it is applicable to the case here in hand.
Along with the fifth instruction the court (in plaintiff’s first instruction) required the jury to find, as *237essential to a verdict against defendant, “that said Ellen Sullivan was not, at the said time and place, guilty of negligence directly contributing to the injury.7 7 The same idea was repeated in the seventh instruction given for the defendant, as follows:
“7. Thó court instructs the jury, that if they shall believe from the evidence in the case, that the deceased was herself negligent, at the time and place she was killed, and that such negligence directly contributed to her death, then the plaintiff cannot recover, although you may believe that the defendant was also negligent.77
It is the settled rule in Missouri that all the instructions should be considered together and read as an entirety. Dougherty v. Railroad (1888), 97 Mo. 647; Owens v. Railroad (1888), 95 Mo. 169. The fifth instruction authorizes a finding in plaintiff’s favor on the facts ’ stated, notwithstanding Mrs. Sullivan was negligent “in stepping upon the track;77 but under the other instructions it was necessary to the verdict that the jury should further find that her negligence did not directly contribute to her death. Taking these statements together, the legal effect of the verdict is to ,decide that her negligence in “stepping on the track77 was negligence that did not directly contribute to her injury, but was sufficiently remote to justify the submission of the issue, whether or not the defendant, by the exercise of ordinary care (including therein the observance of the duties imposed by ordinance) could have avoided injuring her. • ■
Furthermore, it will be seen that the language, in respect of her negligence, is precisely the same in the first half of the fifth instruction as that used in the latter half; yet the former is held (in the principal opinion, delivered by Judge Bkace) to be a correct declaration, while the latter half' is condemned as failing to properly state the law of contributory negligence.
*238In my opinion the fifth instruction, when read along with the others of the series, was right on principle and the judgment should not be reversed because of it.
2. But a careful examination of the plaintiff’s fourth instruction, already quoted, leads me to consider it faulty. No doubt it correctly states a general rule in respect of Mrs. Sullivan’s right, at the outset, to presume (if she knew no better), that the train was running at a speed not exceeding that allowed by law. But the statement of that rule is of doubtful utility and correctness as part of the instructions in a case of this sort, where the evidence is such as to warrant an inference and a finding either way on the question whether the injured party was guilty of negligence directly contributing to her own misfortune. This was held in Myers v. Kansas City (1892), 108 Mo. 480, and it seems to me that that opinion should not be abandoned;
But the instruction went further and proceeded to comment on the evidence on the point to which it referred. Mrs. Sullivan was certainly bound to use ordinary care. With the facts in proof when the cause was submitted, it was not proper to tell the jury that she had the right to act on the presumption that the train was hot running at an unlawful rate of speed, when there was room for the inference that ordinary vigilance would have informed her that it was moving at a much greater speed.
It is true that, by the other instructions, already noted, the issue whether or not her negligence directly contributed to her death was submitted, and the jury found in plaintiff’s favor on that issue. But it is impossible to reasonably say that that result may not have been influenced'by the fiat of the court that she had the *239right to “act on the presumption” that the train was going at a lawful rate of speed.
In the shape the case finally assumed upon the evidence; that instruction amounted to an announcement that her act in stepping on the track was rightful, as a matter of law, if she did not know the speed of the train, irrespective of the question whether or not' the jury considered that act negligent on her part, and directly contributory to her death.
That declaration was, in our judgment, erroneous.
It was a question for the triers of fact whether she used ordinary care to observe the train and its speed, and whether, in going forward, she acted as a reasonably prudent person in the circumstances. To announce that she had the right to act on the presumption mentioned, was for the court to declare, in effect, as a rule of law, that her act was not negligence, and to exclude any inference of negligence based on that act.
Viewing the case broadly on its merits, it cannot fairly be said that this error was harmless. Eor that reason a new trial should be granted. Gantt, J. concurs in the second paragraph of this opinion.