(dissenting). — The judgment proposed in the opinion prepared by my learned brother, Chief Justice Black (approved now by a majority of the court in banc) seems, with due respect, not in harmony with, certain principles which, it appears to me, should, govern the case. S'o my concurrence is not given to it.
His statement of the facts in judgment exhibits the chief outlines of the scene in which Mr. McDonald, the husband of plaintiff, unfortunately met his death.
But yet some other points in the testimony appear to me worthy of attention. In order to bring them out clearly, and to show their bearing on the result of the controversy, it may be well to repeat the substance of the case,
*45Plaintiff’s relationship to Mr. McDonald was shown. They resided at Evanston Park, and had lived there about five years before his death. Their residence was about 'a block east of Evanston station, and a block from the defendant’s railway track. Prom their house a full view of the trains was to be had. Mr. McDonald frequently rode upon them. He was forty-three years of age at the time he died. He had often been engaged in railroad work as a contractor. He had taken part in the original construction of the roadbed of the line at the place where he was killed. He was familiar with the road, and the movement of the trains upon it.
The line was a short one from Kansas City to Independence, and was commonly called the “dummy” line, descriptive of the motive power used. It had a double track. The tracks were from three to five feet apart. At the place of the accident the tracks were straight for a considerable distance; for a quarter of a mile at least.
The general direction of the road is east and west, though at this point the tracks are somewhat deflected toward the south. But, for convenience in the description, we will treat the line according to its general course. About a quarter of a mile further east, the tracks curved toward the north.
The train on which Mr. McDonald was riding, before his mishap, was a regular train, going east. He was hit by a similar train going west. The east bound train was on the south track, and the west bound one on the north track.
Ths night of the accident, Mr. McDonald left home about 7 o’clock to go to Sheffield, the next station west of Evanston. He was in good health. On the return trip he was seen by several witnesses, who gave the particulars of his death.
He was observed talking in a friendly way to the *46conductor, near the front end of the rear coach, where both were seated. When the train reached a point a short distance east of Evanston station, it began to slacken speed. (This distance varies, according to the versions of different witnesses, from about one hundred to six hundred feet.) The conductor and Mr. McDonald then went to'the platform at the forward end of the car. The conductor had a lantern on his arm. It was dark, about 8 o’clock p. m., September 14, 1890. As the train was running slowly, the conductor held up his lantern while Mr. McDonald stepped from the car to the ground on the side toward the other track. A moment later he was struck by a west bound train on the north track, and was killed.
The plaintiff’s witnesses, who describe the scene, all agree on this point. One (Mr. Golden) said:
UQ. After they went out on the platform what did you see or hear! A. I went to look out of the window to see how he was going to get off, and I saw the flash of a headlight and felt the jar; the engineer throwed the engine over, I suppose; and the conductor came in and says, ‘McDonald is killed.’
“Q. Did you see the man get off the train! A. I saw him when he was going to get off, and I pulled my head in; I saw the flash of the light.
UQ. How long was it after you pulled your head in that you heard this noise! A. Almost immediately.
“Q. How far was the headlight from the train you were on at the time you saw it! A. Well, the tracks were very close together, and I don’t know what rate of speed they were running at.
“ Q. About what distance would you say it was when you looked out the window! A. Well, I couldn’t say; I just put my head out and saw the flash of light and pulled it in again.
*47“Q. McDonald had not alighted at that time? A. I couldn’t say; I hardly think he was; August Gick, the man I was working for at the time, asked me to open the window.
“Q. State whether the train you were on had come to a standstill or not? A. It was moving slowly when he got off.
“Q. Did you go out; did the train stop after that? A. Yes, sir; it stopped to pick him up.”
Another witness (Mr. Gick) gave this version:
‘•Q. Now, from where he got off, down in this direction there is no obstruction, as that train goes up there, to prevent you from seeing that headlight? A. I think not. * * *
“Q. * * * What side did he get off on? A. He got off between the tracks * * *.
“Q. Now after Golden put his head out of the window, about how long was it — one, two, three or four seconds — how long was it afterwards that, you heard that explosion or noise? A. It was almost immediately afterwards.
“Q. Do you mean it was in a second or two? A. Yes, sir.”
Both of the witnesses above quoted were in the rear car in which Mr.’ McDonald had been sitting before he started to get off.
Another witness (Mr. Crisp) was in the car next in front. He was sitting in the rear corner on the side toward which the accident occurred.
He said that the west bound train had a headlight.
On the question of interval of time between McDonald’s leaving the car and “the explosion” (which is the term he, as well as another witness, used to describe the noise of the reversal of the west bound engine, at or immediately after it hit Mr. McDonald) this witness testified as follows:
*48“Q. After you saw the conductor light McDonald down the steps, how long was it before you felt the passage of the train? A. As quick as I turned my back the train was by me.
11Q. At what time was it that you heard the explosion? A. A second or two afterwards.”
All the facts above noted were given in evidence by witnesses produced by the plaintiff.
The defendant offered no testimony. The trial court then ruled that the finding must be for the defendant under the pleadings and evidence, giving an instruction to the jury to that effect. Accordingly, a verdict for defendant was rendered, and there was a judgment thereon, later.
Plaintiff appealed.
1. In the state of the record above described, plaintiff is entitled to have her case viewed as favorably as the facts in evidence will permit, and to have the benefit of every reasonable inference from them.
2. Whether the facts shown by plaintiff tend to make out a case is a question of law to be decided by the court, before reaching the point of submitting the evidence of those facts to the jury to pass upon its credibility.
3. The burden of proving that defendant’s negligence was a proximate cause of the death of her husband, rested upon the plaintiff under the pleadings. If, in endeavoring to discharge herself of that burden, she developed, as part of her case, facts which conclusively showed that Mr. McDonald was wanting in reasonable or ordinary care for his owm safety, and that such want of care directly contributed to his death, then the court was in duty bound to rule that she could not recover.
The facts must be held to conclusively establish such want of care when the court is of opinion th^t *49they reasonably permit no other fair inference in the circumstances of the particular case.
While contributory negligence is (speaking generally) an affirmative defense, the burden of proving ■which devolves upon defendant in this class of actions, yet the defendant may avail itself of the evidence introduced by plaintiff, when it tends to sustain that defense. The court is bound to rule upon the legal effect of such evidence, when properly invoked to do so.
4. The principles just stated are familiar.
Applying them to the case in hand, was the plaintiff entitled to go to the jury?
The evidence fairly warrants the inference that Mr. McDonald was a passenger on the defendant’s train. As such, the defendant owed him the duty to use, toward him, the highest practical care which capable and faithful railroad men should, in the opinion of the court, take in like circumstances.
The evidence also warrants the inference that the conductor was in the act of holding his lantern to give Mr. McDonald light, when he left the train. But the cars were in motion when McDonald got off. They had not come to a halt. The place was nearer to McDonald’s residence than to the station. McDonald knew quite as much about the locality as the conductor. He was on friendly terms with the latter. He obviously chose the spot at which to alight when he was ready to do so. He knew that he was getting out on the side nearest the other track; that there was no platform at that point for passengers to alight upon; and that it was not an appointed place to discharge passengers, but an unusual one.
The railway company owed him a high degree ■ of care, but he was himself also bound to use reasonable care to avoid obvious danger.
*50Now, looking at the immediate facts of his conduct, just before the catastrophe, would they reasonably justify the inference that he used such care?
The tracks were straight for a long distance at the point of the mishap. The west bound train had a headlight, which people in the car saw before McDonald was struck. As he stood upon the last step of the car, before leaving it, he could have seen the headlight of the coming train, had he looked in that direction. To step from the car while in motion, he naturally faced in that direction. Even if he faced straight toward the north, the column, of light should have been within his view, as it was cast from the headlight for some distance in front of the locomotive, and he was struck immediately on leaving the train.
He either saw the other train and stepped off ahead of it, hoping that the last car, on which he had been riding, would pass in time for him to step aside and avoid the west bound engine, or else he did not see the approaching train or notice its light until he left the car step, and then escape was impossible.
The light of the train that hit him was obviously in plain view of a person standing where he stood before leaving the car.
There is nothing in the circumstances to excuse his omission to look out for the other train (if such was the fact), before stepping down so nearly in front of it. Still less would the circumstances excuse his move in leaving the car when he did, if he had previously observed the headlight of the other train, so near at hand.
However his act be viewed, it can not be considered consistent with the care which a person of ordinary prudence should take in such circumstances.
The facts that he was a passenger and that the conductor was “lighting him off” (as some of the wit*51nesses describe it) do not furnish any warrant for his leaving one moving train to step into such dangerous proximity to another, as he evidently did.
We do not say that it was negligence, as a matter of law, to descend from the car which was in motion. Such an act may, or may not, be negligent according to the circumstances of the special case. In those now ■appearing, we think Mr. McDonald could not be held to have been negligent, as a conclusion of law, merely because the car he left was moving.
But when the time and manner of his leaving the train are considered, it seems to me impossible to sanction his conduct as coming up to that standard of reasonable care which the courts are bound to maintain, and to apply to the acts of persons of full age, nnder the law of the land.
The case would seem to me too clear to require resort to precedents to support the conclusion foreshadowed by the foregoing remarks, were it not for the different opinion of my colleagues which alone gives me some misgivings as to the correctness of my ■own.
A few cases from our home reports may, however, be mentioned as illustrating the principle which should govern the present appeal.
Weber v. Railroad (1890), 100 Mo. 194, was a case in which a passenger was held fatally neglectful of the requirements of ordinary care, in leaving a street car at a regular street crossing where passengers were expected to alight, but he descended in such a way as to encounter another car going in the opposite direction on a parallel track, and was forced to a nonsuit on that account.
And in other instances nonsuits have been compelled or sustained where parties have ■ stepped in front of moving trains, in circumstances which seemed, *52to the court, to furnish no excuse for the failure to notice their coming. Boyd v. Railroad (1891), 105 Mo. 371; Maxey v. Railroad (1892), 20 S. W. Rep. 651.
These cases all prove that, where the court is of opinion that the conduct of the party in question shows plain and obvious negligence, directly leading to the catastrophe, there remains no issue to try. The law pronounces judgment on the probative force of the facts.
In the case in hand, no action of the conductor can reasonably be regarded as having absolved or excused Mr. McDonald from the duty to look out for the other train before stepping down from the car in the manner already narrated.
Upon the plaintiff’s own showing, it could not reasonably be held that Mr. McDonald used ordinary vigilance for his own safety, at the time of his dreadful mishap. On the contrary, the evidence excludes the possibility of any just or reasonable inference or finding that he took reasonable care to avoid danger in acting as has been described by the witnesses called on behalf of plaintiff. .
The trial judge, in obedience to the inexorable rules of law, declared that plaintiff was not entitled to recover. In so doing he was, in my opinion, entirely right.
Hence this respectful dissent to the judgment pronounced, reversing that ruling. It appears to me that the judgment of the circuit court should be affirmed.
Sherwood and Robinson, JJ., concur in this opinion.