(dissenting) — Action for $10,000 damages for injuries resulting to Mrs. Lamb, the beneficial plaintiff herein, by being struck by a tender which was attached to an engine belonging to defendant company and which knocked plaintiff down, bruising her about the head, face and limbs, and the engine and tender ran over and crushed the heel and under portion of her left foot.
The answer of defendant-was a general denial, coupled with a plea of contributory negligence; the reply was a general denial. The petition counted on the night -of the occurrence of the injury being “dark and cloudy.” In her original petition “smoke” was alleged as an additional ingredient of injury, but this element was eliminated from the amended petition, because of an instruction given at the instance of defendant to the effect that if plaintiff’s view was obstructed by smoke or otherwise, it was her duty to have waited until such smoke or other obstruction had been removed before attempting to cross the track, and a failure to do so would preclude a right of recovery.
The accident occurred on the sixteenth day of June, 1893, about 8:20 o’clock in the evening of that day, in the city of Pleasant Hill (a city of over two thousand inhabitants), at a public crossing of Wyoming- street where that street crosses the railroad track of defendant company, which track runs through the city from the southeast in a northwesterly direction, and divides the business from the residence portion of the city. Wyoming street runs north and south through the city and across the tracks, two in number af that crossing. A plat and photographs which will accompany this opinion will give an accurate idea of the scene of the accident and its surroundings. It will be noted in this connection, that the two tracks involved in the evidence preserved in the record, are parallel, and for a long-distance, entirely straight for a distance of a quarter of a mile to the east, and there are no obstructions to the vision along the lines
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of the first and second tracks. Along those tracks a great many trains were accustomed daily to pass backwards and forwards. Mrs. Lamb was. twenty-six years of age; was born and reared in Pleasant Bull; was perfectly familiar with the crossing and with the running of the trains, and living, as she did, north of the railroad tracks, was accustomed to cross them at this same crossing two or three times a day, and a great many trains were passing as plaintiff usually went over the crossing, and this had been the case with her for years. This crossing was west of the depot about two thirds of a block or about three hundred and twenty-two
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feet. There is a sidewalk on the west side of Wyoming street, which crosses these tracks. At this point the first track is a switch track, on the south, and the passenger track is next to it on the north. It is thirteen feet and eight inches from the south rail of the second or passenger track to the south rail of the first or switch track, and each track is four feet eight inches wide. On the evening in question, she had been over on the south side of the railroad to Rayburn’s grocery store, about one hundred and seventy-five feet to the south of the first railroad track, and left there for the purpose of returning home; accordingly, she walked north on the sidewalk on the west side of Wyoming street, until she approached within four or five feet of the south rail of the first, south or switch track. There she stood for three or four minutes, waiting, as she says for the passenger train then about due, to come in from the west, or Kansas City, and go on east across the sidewalk on the west side of Wyoming street before she would venture to cross. Pretty soon the expected passenger train came in view, the engine *194whistled at the usual place west of the Wyoming street crossing, eighty rods or one thousand three hundred and twent feet from the place where plaintiff was standing. This passenger train traveled on the second track north of plaintiff, proceeding east to the depot. While this was occurring, and when the passenger train, the cars of which were brilliantly lighted, had almost crossed over the crossing at Wyoming street, the last car having gotten about east of that street, an engine and tender came from the east along the first, south or switch track, on the immediate south of which plaintiff was then expectantly standing. This engine and tender running backwards, was going west and crossed Wyoming street, running at a rate of speed variously estimated at six to twenty miles per hour. It is asserted in plaintiff’s behalf that no signals were given by the engine going west, but on this there is the usual conflict. She testifies that before she stepped on the first or nearest track to her, she looked both ways up and down the track and did not see or hear the engine, and then stepped on the first or switch track, when “almost instantly” she heard the engine whistle, and then the tender immediately struck her, knocking her twenty-five or thirty feet westward, etc., and that no bell was sounded on the engine in question. And she also testifies that just before the passenger train came down, she looked to the west and saw some box. cara there some fifty yards, distant on the first track, and that her vision was equally unobstructed towards the east; and that she could have seen the engine and tender fifty yards to the east when she looked in that direction had it not been for the smoke and dust between her and the engine and tender, and that there was no other obstruction that she knew of to have prevented her, when standing four or five feet from the first track, from seeing an engine on that track clear down to the depot, and that the smoke came from the passenger train. Further on she testifies that the smoke and the dusky even*195ing, and the darkness of the night prevented her from seeing the engine and tender, and that when she first went down to the track, and as the passenger train was coming in, she looked down east and saw Duncan’s building, the depot, and the lights in the windows, and that if there had been no smoke or dust sbe could have seen an engine and tender fifty feet to tbe east as they came' toward ber. Asked further with reference to tbe crossing of tbe passenger train, sbe says when sbe last saw it, it was still moving down; that •thenshelooked east;but saw only tbe passenger train; that immediately after tbe passenger train passed by ber, sbe looked east and then west and then stepped on tbe track. Asked whether at that juncture sbe could see tbe engine, sbe answered, “I do not know whether I noticed whether I could see the engine or notj I saw the passenger lights.” In no place in ber testimony does it appear that sbe looked down the first track, near which sbe was standing. Sbe may have looked east, that is let ber eye follow tbe passenger train and the second track on which it was moving, without looking at the first track at all. Sbe also testifies that as sbe was standing at tbe place beside tbe track, at which sbe stopped, and before tbe passenger train pulled in, that there was nothing to have prevented ber from crossing tbe tracks in safety; sbe says, indeed, that even after tbe passenger train got within one hundred yards of tbe crossing, sbe bad time to have made tbe crossing, but sbe felt safer waiting, although it was less than twenty-five feet from where sbe wTas standing, to tbe north rail of tbe passenger track, and although nigbt was approaching. In addition to plaintiff’s testimony already set forth, ber testimony bad been preserved as given at tbe last or second mistrial. Asked at that time if sbe bad seen tbe engine before it struck ber, sbe said, “I do not remember seeing it until it struck me. I beard tbe sound of the whistle.” Asked bow far it was when it whistled, whether sis, eight or ten feet, sbe said it *196seems it was closer than that; it may have struck me right at once; I do not know. Asked again if it might have been off eight or ten feet when it whistled, she said no, if it had she could have gotten off the track. On that former trial she was also questioned about the smoke about which she had testified, and stated that it settled in the direction where she was, right close to her. Upon this, being asked if the smoke remained clear up to the time she was hurt, she said she did not remember whether it did or not, and that she did not pay any more attention to it after she first looked and saw it was there. On a former occasion the deposition of plaintiff had been taken, and she stated that when the passenger train had gone by, she started to cross. Asked how far she had gotten before being struck, she answered “one step, one foot on the track.”
Mundy, a negro, came along as plaintiff was standing where she had stopped; saw her there and then crossed over, and looking back saw her still standing there, looking toward the passenger train as it was coming in. This witness says that as he crossed over the tracks, he looked east and saw the engine and tender that afterwards struck plaintiff coming back, that is coming west; they were about the lower crossing (Commercial street), a block distant; that this was east of the depot; that there was no obstruction at this time between plaintiff and the engine and tender, or between witness and those objects; “that any body that was looking that way and watching for anything to look at could have seen it.”
Hayes, another witness who crossed the tracks with Mundy, says that he and Mundy crossed the tracks together in front of plaintiff, and that in crossing, he looked east towards the depot and saw the engine and tender down back of Duncan’s and moving west and that it was in plain view from where witness was, and that there was nothing in the way to obstruct plaintiff’s view of the engine and tender; *197■that they ran up to the crossing just at tlie same time the passenger train went by; both of them passing the same point where the accident occurred at the same time; that the bell on the passenger train was ringing, but whether the bell was ringing on the approaching engine witness could not say.
G-oudy, another witness, says he was a passenger on the Nansas City incoming train, was in the middle or chair car; there were three coaches on the train, all of them lighted; the window was up and he sitting on the south side, saw plaintiff as the train was crossing Wyoming street; she was ■standing on the sidewalk, and looking toward the passenger train, and witness recognized her when passing; that the engine and tender which he supposed struck-plaintiff passed the rear end of the passenger train about the middle of Wyoming street; that both the engine and train were moving at the time, the train going east and the engine going west; that the engine passed witness about the middle of Wyoming street, a street ninety-eight feet between sidewalks, and plaintiff was then on the sidewalk; that in the judgment of witness, who had been depot agent for over sixteen years, and was consequently familiar with the lo■cality, a person standing four or five feet south of the south track, could see as far east as beyond Commercial street and perhaps as far as the tank.
Barnes, another witness, says: On the evening of the accident, he was sitting at the corner of Dunn’s drugstore, which is on the west side of Wyoming street, and about one hundred and twenty feet south of the railroad tracks and the next door north of the postoffice, when he observed the passenger train coming in from Kansas City, and saw the engine and tender which struck plaintiff. The ringing of the bell first attracted his attention that way, and he saw plaintiff walking slowly down the sidewalk toward the track, .and she seemed to pause before she got to the track, and *198though her back was toward witness, she seemed to be looking toward the passenger train, and up into the cars as the train ran up to the crossing; that as the last car moved out of the way going east, and the engine and tender came out from behind Duncan’s and was about fifteen or twenty feet of plaintiff when witness first discovered it; that as the last car moved out of the way, plaintiff stepped forward, and as the engine and tender were backing up at a pretty rapid rate, witness raised to his feet because plaintiff seemed not to be looking at them and they did not seem to attract her attention, and just as he rose to his feet they struck her, and that plaintiff and the engine and tender were both in plain view of witness just before the collision occurred.
Another witness, Dunn, was in front of the Pleasant Ilill Company's drug store on the evening of the accident, a little northwest of Duncan’s store and also on the west side of Wyoming street; he did not witness the accident, but he saw the engine and tender as it went toward the crossing where plaintiff was struck, and they were in plain view from where-plaintiff stood at the crossing; that immediately after the accident, witness had no difficulty in distinguishing an object, one hundred and fifty yards or so, and that immediately after the occurrence he had no trouble in distinguishing a man from a woman that far as they came up to the crossing from the depot.
Hubbard was standing at the rear of Duncan’s store, within ten feet of the south track on the east side of' Wyoming street and about to cross the track there, when his attention was directed to the engine and tender by the noise of the wheels and the puffing of the smokestack; casting his eye to the east, he saw them coming and about fifty feet distant, and though he says he saw no lights on them,, yet it «loes not appear that he had the slightest difficulty in seeing them. At that time he states he saw plaintiff on the-opposite or west side of Wyoming street ( a street ninety-*199eight feet wide between sidewalks), just to the railroad when lie saw her, and though plaintiff was an entire stranger to him at that time, he had no trouble in recognizing her, and then he says he heard two or three sharp whistles and the accident occurred at the same time, though he says he did not see plaintiff struck. Belmont who was with Hubbard, gave similar testimony, and says that although the evening was dusky, not dark, you could see a person across the street, not able perhaps to recognize him unless personally acquainted with him.
Thomas was on the west side of Wyoming street one hundred and thirty feet south of plaintiff, near the post-office, and saw the engine and tender that struck plaintiff come out from behind Duncan’s, saw it very plainly, saw it on up to where plaintiff was struck and heard’ her scream.
McArthur was with Thomas at the postoffice, which he states is about one hundred and sixty feet from Duncan’s corner, and saw the engine and tender come from behind that corner up to where plaintiff was standing.
Hughes, also near the postoffice, says he saw the engine .and tender come from behind Duncan’s store and that they would have to come between plaintiff and the lights of the passenger train when moving west to the crossing.
York, was about fifteen or twenty feet south of plaintiff when the accident occurred, and saw engine and tender when they were about fifteen feet from plaintiff and a person with her, and said if they do not see that train they will .get run over, and about that time it struck her; he also says he first saw the engine and tender about forty feet off; that the passenger coaches were brilliantly lighted, and that standing where plaintiff was, the engine and tender would be bound to pass between her and the lights of the passenger train.
Bailey, was sitting on the sidewalk almost due south of the west line of Duncan’s store, and about one hundred and *200seventy-five feet from the point of the accident and saw the engine and tender as they crossed Wyoming street; that the passenger coaches were brilliantly lighted, and that from that position occupied by plaintiff, there was nothing to obstruct her view, and no reason why she should not have seen the engine and tender by the lights of the passenger train.
The testimony of all the witnesses is to the effect that the engine and tender passed the rear portion of the passenger train about on Wyoming street. Davis, a negro, was, when the accident occurred, at the water tank west of the depot and on the north side of the railroad tracks; that he could then see objects about the width of a block, very plainly; that he first saw the engine and tender about one hundred and fifty feet from where the plaintiff was injured. The last witness, as well as seven others who preceded him,, were witnesses for plaintiffs; the others were for defendant.
McGrath for defendant testified that he was the engineer on the engine and tender that struck plaintiff. He-saw plaintiff standing near the track when he got within sixty feet of her. She was standing still, with her face to-the north, and did not appear to look toward him. He thought she was going to remain standing until the crossing-was made. He was on the east side of the plaintiff, there was no obstruction between the plaintiff and him; that she-was about six feet from the track and remained there up to the time when he got within ten or twelve feet of her when she started across the track; that immediately he tooted the-whistle and reversed the engine; that it was impossible to-have stopped the engine after he saw that plaintiff was going on the track; that she was facing the north and looking that way, and that he did not see her looking toward him. He also states that the bell on the engine was rung continuously from the time they left the elevator two hundred or-more feet east of the depot, until the west sidewalk of Wyoming street was reached.
*201Gilbert, was standing one hundred yards west of where plaintiff was injured, and giving signals to the engineer on the engine and tender, and that there were several lights on the engine, and that he could see and distinguish them before plaintiff was struck; heard several blasts of the whistle before the engine stopped. Asked how far he could see the engine and tender before it got to the crossing, he replied he could see it as far as the tank east of the depot.
Mrs. Edmonson standing on the east sidewalk which crosses the track north of Duncan’s store, and standing there hoard the bell of the engine ringing, and looking around, saw the engine and tender; that she heard the bell before she saw the engine and tender and that the bell on the engine continued to ring after it passed her, and that she saw the tender strike plaintiff who was standing on the opposite sidewalk, and that she saw and recognized plaintiff.
Several other witnesses testified in a similar strain as to the facility with which men and women could be seen and recognized at considerable distances on the evening in question, but it is quite unnecessary to quote from therri all.
At the close of the testimony, defendant asked an instruction in the nature of a demurrer to the evidence, which was denied. The jury returned a verdict for plaintiff for $3,000.
The evidence already recited, conclusively shows that this case falls -within that category of cases which ¿nnounce these principles: That in like circumstances to those here presented, the contributory negligence of plaintiff precludes her from recovery, and that the well established physical facts disclosed by this record, are an all-sufficient answer to plaintiff’s assertion that she filled the measure of ordinary care by looking in the proper direction before she stepped upon the track. These principles will be found announced and elaborated in the following cases: Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Lane v. Rail*202road, 132 Mo. 4; Maxey v. Railroad, 113 Mo. 1; Payne v. Railroad, 136 Mo. 562; Huggart v. Railroad, 134 Mo. 673; Vogg v. Railroad, 138 Mo. 172; 3 Elliott on R. R., secs. 1165 and 1166 and cases cited.
And under the authorities cited, even if defendant company failed to give the customary signals, this would not justify plaintiff in failing to use all proper precautions.
If a traveler could have seen the train by looking, the presumption is that he did not look, or if he did look, did not heed what he saw. [Elliott on Railroads and Payne’s case, supra.]
Now as to the ringing of the bell; as before remarked, the testimony is conflicting on this point; several witnesses were positive that the bell was properly rung; some others deny this, while others did not hear it. Section 2608 is the statute (R. S. 1889) on which such duty, speaking in a general way, is bottomed. The provisions of that section, so far as necessary to quote them, are as follows: “A bell shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, and be kept ringing until it shall have crossed such road or street, or a steam whistle shall be attached to such engine and be sounded at least eighty rods from the place where the railroad shall cross any such road or street, except in cities, and be sounded at intervals until it shall have crossed such road or street, under a penalty of $20 for every neglect of the provisions of this section, to be paid by the corporation owning the railroad.”
Under the theory that this section was applicable to cities, this instruction was given at plaintiff’s instance: “The court instructs the jury that under the law in this state it was the duty of the defendant’s servants and agents, in running, conducting and managing defendant’s locomotive engine and tender when approaching any traveled public road or. *203street, .to ring its bell on such locomotive engine, at a distance of at least eighty rods from the place where its railroad crossed any public traveled street or road, and to keep the bell ringing until it crossed said street or road, and a failure on the part of the servants and employees of any railroad company running and managing its locomotive engine and tender, to ring such bell, as herein above described, at such times and places as herein above specified, is negligence.”
A careful, or even a cursory reading of section 2608, should convince any one that the statute is impossible of application to switching engines when operating in cities. If it should be held thus applicable, it would block the progress of railroad trains throughout the State, indeed over the continent of North America, because it would require that a switching engine about to cross a street should ring its bell for eighty rods before doing so. Now it is a fact of such common knowledge that city streets are not a quarter of a mile apart, and that city blocks are not eighty rods long, that we may take judicial notice of it. But even if they were that far apart, still this would not help the matter; because even then if switching engines attempted to do intermediate switching, they could not comply with the statute. This is too plain for serious discussion. In our judgment, the statute applies, and was only intended to apply to passenger or freight trains when regularly made up when approaching a country crossing, or crossing on the boundary line between city and country. Any other conclusion than this leads to manifest absurdity, and when this is so, the letter of a statute may be enlarged or restrained according to the true intent of the framers of the law, for “the letter killeth, but the spirit maketh alive.” Under this conservative rule general terms are so limited and restrained as not to lead to injustice, oppression, or absurd consequences, the presumption being indulged that no such anomalous consequence *204was intended by the framers of the law. [Ex parte Marmaduke, 91 Mo. loc. cit. 244, and cases cited; Sutherland on Stat. Const., sec. 218.]
But while we say this, at the same time we say that outside of the statute, and under the principles of the common law, a railroad corporation would not perform its full duty of ordinary care, unless those employed on a switching engine, engaged in its customary avocation, should ring its bell, or if necessary, take any other precaution adapted to the exigency of the situation. It is this exigency which, like the mercury in the thermometer, determines to what degree prudence shall rise in order to reach the mark of ordinary care.
And when the engineer approached with the engine and tender to within sixty feet of where plaintiff was standing on the sidewalk, and saw her there, he had the right to presume that she would not be guilty of such reckless folly as to attempt to cross in front of the moving tender. [Purl v. Railroad, 12 Mo. loc. cit. 172, and cases cited.]
In addition to the testimony of plaintiff and. others adduced at the trial, there are preserved her admissions made at a former trial and in a deposition. Such admissions, though they could not be admissible in the case of an ordinary witness, except for the purpose of impeachment, yet it is otherwise where, as here, the witness is a party to the suit. In such case, such admissions constitute evidence not only of an impeaching nature, but evidence also of a substantial and probative character.
In Bogie v. Nolan, 96 Mo. 85, such evidence was held admissible, overruling an aberrant decision in Priest v. Way, 81 Mo. 16, and following the dissenting opinion in that case (a circumstance not infrequent in this latitude).
Eor the reasons aforesaid, the demurrer to the evidence should have prevailed.
Marshall and Robinson, JJ., concur in this opinion.