Upon a rehearing the following opinion' by Vallianí, J., in Division One, is concurred in by Brace and Gantt, JJ.:
*592VALLIANT, J.This is an action for damages for the killing of plaintiff’s minor son in a collision between defendant’s train and a wagon driven by plaintiff, in which the child was riding, at a public crossing in or near the city of Lexington. The ease was tried by court and jury. There was a verdict and judgment for plaintiff for $5,000; after unsuccessful motions for new trial the defendant brings the cause here by appeal.
There is no question raised as to the sufficiency of the pleadings. The crossing on which the collision occurred was admitted, on the trial, to be a traveled public road. The negligence charged in the petition is a failure to observe the statutory requirements to sound a whistle or ring a bell as specified in section 2608, Revised Statutes 1889. The answer is a general denial and contributory negligence on the part of the plaintiff. The answer does not specify in what the alleged negligence of the plaintiff consisted, but no objection on that ground was made to the answer. The case was tried as if the issue was properly presented in the pleadings. The issue was marked out in the instructions, and for the purposes of this appeal that is sufficient.
The testimony on the issue as to whether or not the defendant’s servants in charge of the engine drawing the train sounded the whistle or rang the bell, was conflicting. But the verdict of the jury was for the plaintiff on that issue. There was substantial evidence to support it and it is not now a subject for review. It is contended by the counsel for appellant that although the testimony on this point was conflicting, it “so overwhelmingly preponderated in defendant’s favor that the verdict of the jury evinces the fact that they were actuated by prejudice and passion.” In view of that contention we have not dismissed the subject after merely looking to see if there was some evidence on which to base the finding, but have ex*593amined also to see if, on the whole, the evidence was of such character as to justify the charge that the verdict was the result of prejudice or passion. The plaintiff testified that he heard a faint whistle in the direction of Myrick, which was about a quarter of a mile distant to the west. The defendant’s evidence showed that its east-bound train was due to arrive at Myrick just at that time, so it was not unreasonable to conclude that it was the whistle of that train which the plaintiff heard, and perhaps it was that whistle also which some of defendant’s witnesses thought they heard. It was, however, not that train, but the west-bound train that collided with plaintiff’s wagon. Myrick was the point at which these two trains were to pass each other. There was a good deal of evidence on this issue, and whilst that for the defendant was sufficient to have sustained a verdict if it had been for the defendant, yet the evidence for the plaintiff was of both character and quantity ample to sustain the verdict and to justify the jury against the charge of prejudice or passion. The verdict being for 'the plaintiff on that question and beyond impeachment, we must, in com sidering the further question in this case, assume it to be a fact that the whistle was not sounded nor the bell rung.
The question, then, is, was the plaintiff guilty of negligence that contributed to the injury ? And since that was submitted to the jury under instructions as favorable to respondent as it could ask, the form that the question here assumes is, does that evidence on this point make out such a ease of negligence on the part of plaintiff as that the court should have so declared as a matter of law, and should not have submitted the question to the jury; or does the verdict of the jury, in the light of the evidence, show that it was the result of passion or prejudice ?
This is the form in which the learned counsel for respon*594dent have presented the case in their argument and brief.
The collision occurred at what is called Hoffman’s crossing, which is where the public road, indicated on the plat as West Mill street, crosses the respondent’s railroad, and seems to be just at the western limit of the' city of Lexington. There the railroad runs nearly east and west, and this public road, running nearly north and south, crosses it at right angles. Approaching the railroad crossing from the north, as the plaintiff was On the morning in question, there is a bluff to your left, which prevents a view of the railroad to the east. This bluff is about forty-five feet high, but it slopes from its highest point at an angle of forty-five degrees to the bottom of the railroad cut. The distance between the foot of this slope and the railroad track is about eight feet. The plaintiff’s testimony tended to show that at the crossing a ridge or tongue of land ran down from the bluff to the railroad track, and the bluff, and this tongue or ridge of land was covered with a thick growth of weeds and sunflower stalks from six to nine feet high, so that one approaching the crossing from the north could not see the railroad to the east until he was within six or eight feet of the track, or, as some of the witnesses said, until he was up to the track. There was some conflict between the testimony for plaintiff and that for defendant on this point. One witness for defendant, who was on the ground the morning of the accident, shortly after it occurred, testified that sitting on his wagon twenty-five or thirty feet from the track he could see up the track to the east for a distance of about a hundred and fifty yards. Other witnesses for defendant made measurements, and from those testified that they could see to much greater distances up the track. But those witnesses made their observations just before the trial and after the ground had been cleared of the weeds and sunflowers. On the proposition that the view of the track was so obstructed that it could not be seen *595to the east until one approached within at least six or eight feet of it, the preponderance of the evidence is with the plaintiff. In fact, the testimony of the defendant’s engineer and fireman, who were in a better position than any of the witnesses, even than the plaintiff himself, to see and judge, leaves no room to doubt that the plaintiff’s testimony on that point is correct. The engineer was at his post and on the lookout; this is the way he described it: “Q. What occurred at the crossing, describe it in your own language? A. Well, we struck that team on the crossing going down there, down the grade at the rate of about thirty miles an hour; and we could not, we did not see the team until they were to the track; I think I was about fifty, probably sixty feet when the horses’ heads came by the corner so that I could see them, and I did not have time to do anything but just simply put the air on before we struck them. I reached for the whistle but before I could reach it we had struck the team.”
The fireman testified that he was on the left side of the engine and on the lookout and could not see the horses until they were on the track. The engineer who stood on the right side.and looking ahead had a better view than any one else, yet he did not see them until it was too late. The whole testimony on this point leaves no room to doubt that the situation was such that the plaintiff could not have seen the approaching train unless he had left his wagon and walked forward to within at least six or eight feet of the track.
The testimony showed that on the morning of the accident the plaintiff was driving a two-horse wagon-with his two children on the driver’s seat beside him, going for a load of sand, Their course was southwest on Third street to its terminus, thence west for a short distance over a macadam road to West Mill street, thence turning south down a short steep declivity into West Mill street at a point about a hundred and thirty *596feet from the railroad crossing. From this point onward West Mill street was a dirt road. There was another wagon and team driven by Spencer Lewis, a witness, following behind that in which the plaintiff was driving. When the plaintiff arrived at a point, estimated by him to be from twenty to thirty-five feet of the crossing, he stopped his wagon to listen for a train. Spencer Lewis stopped his wagon about twenty-five feet behind that of plaintiff. According to Lewis the place where the plaintiff stopped was about eighteen or nineteen feet of the crossing. The plaintiff was familiar with the crossing, and knew the time the train was due there; when he stopped he consulted his watch to see if the train had passed, and finding that it was three or four minutes past that time, and hearing no whistle or bell, concluded the train had passed, and drove on to the crossing. His testimony was that he drove slowly on, looking as best he could and listening for the train; that the first he saw or heard of the engine was just as his horses reached the north rail of the track, he tried to check them but it was too late. The horses were thrown to the left and the wagon to the right of the track, the plaintiff and his two boys were thrown out, the elder of the two boys, Harry, was killed and the other injured.
A railroad crossing is itself a sign of danger, and one going upon it is esteemed negligent if he does so without first exercising that degree of care to ascertain if a train is approaching that a man of ordinary common sense and prudence in like situation would exercise. There are no prescribed acts to be performed as constituting a fulfillment of this requirement of the law, but whether or not such care has been observed in a particular- case is a question of fact to be answered in the light of all the surrounding circumstances. It has frequently been held that a person going upon a railroad track without first looking and listening for an approaching train, is guilty of *597negligence. But even that rule which is usually applicable, is not absolute. “It is well settled that the person traveling on the highway, is not guilty of contributory negligence because of a failure to look and listen when the surroundings are such that he can not see or hear an approaching train. * * * Though the circumstances are such as to render looking and listening of no avail, it is still the duty of the traveler to use care and caution. But when the view of the railroad is obstructed so as to render it difficult or impossible to see an approaching train, the question whether the traveler was wanting in due care is one for the jury to determine; and it is also a question for the jury, under complicated circumstances, calculated to deceive and throw a traveler off his guard.” [Baker v. K. C. etc., Ry. Co., 122 Mo. 533, 1. c. 544.]
Cases involving this doctrine have been so often before this court that we are at no loss for precedents, and the briefs of counsel are full of well-chosen and apt decisions. Those cases all seem to show the application of the general rule above stated to the varied conditions presented, and they also serve to show the impossibility of reducing the general rule to one of specifications.
In Hayden v. Railway, 124 Mo. 566, a demurrer to the evidence was sustained. In that case, as the plaintiff’s husband, who was killed in the collision, approached the crossing, there was corn in a field to his right, which for some distance obstructed his view of the railroad, but after passing the cornfield there was a space estimated at from fifteen to thirty feet wide through which his road went when he could have had a clear view of the train if he had looked. The court held that-failing to’ look under those circumstances was a failure to use ordinary care.
In Kelsay v. Railroad, 129 Mo. 362, the court held that the plaintiff was guilty of contributory negligence under these *598conditions: “The evidence is conclusive that the embankment was not nearer the track than twenty-five feet on the north and extended west about to the line of the county road. There were no weeds or other obstructions between this embankment and the railroad towards the southeast. The railroad was substantially straight. It is therefore established by these undisputed physical facts that plaintiff had, for a space of twenty-five feet, an unobstructed view of the track for some considerable distance, and a space in which she could have safely waited, with a gentle horse such as she was driving, until a train passed. It was also shown that the road ran in a cut, four feet deep next the highway, for a distance of about four hundred feet. This distance, at least, the plaintiff could have seen along the road.” [L. c. 372-3.] Maoearlane, J., who delivered the opinion in that case, quotes from the opinion of Brace, C. J., who delivered the opinion in Hayden v. Ry., supra, as follows: “It will thus be seen that it was a physical impossibility for the deceased to have failed to see the approaching train, if he looked in that direction, as it was his duty to do, while yet in a place of safety, and before entering upon the line of danger. Had he done so, there can be no question that he could, and would, have stopped his team until the train passed, and then crossed over in safety. But for some unexplained reason he failed to do so.”
Counsel for appellant rely with much confidence on those two cases as precedents to justify a judgment for defendant in this ease. But the facts in this case are quite different from the facts in either of those cases.
In Kelsay v. Railroad, supra, at the conclusion of the opinion, the court say: “This ruling does not disturb, in the least, the decision of this court in Kenney v. Railroad, 105 Mo. 270, which we think correctly decided.” That ease is *599very much more like the case at bar than either the Hayden or the Kelsay ease.
In Kenney v. Railroad, supra, Barclay, J., for the court, said:
“The case before us, in its present form, calls for an expression of opinion whether the plaintiff’s conduct in approaching and crossing the track was negligent as a matter of law. To warrant us in reversing the finding (by the trial court) that he was not, we must be satisfied that no other conclusion than that of plaintiff’s negligence in the premises is fairly deducible from the evidence, giving him the benefit of every reasonable inference that may be drawn from it. [Huhn v. Railroad (1877), 92 Mo. 440; Mauerman v. Siemerts (1879), 71 Mo. 101.] * * * It will be noted that the plaintiff stopped twice to listen for a train: first, at a distance of one hundred and twenty feet, and, afterwards, at ninety feet from the track. He heard nothing. Assuming the truth of his evidence (as the present status of the litigation requires), it is obvious that, had the signal been given by defendant, he would have been warned of the coming train in time to escape harm. His course, after his second stop, lay along a line which did not permit a view of a train until very near the track; according to his personal evidence, until within a few feet of it, and, according to other evidence on his behalf, until twenty-one feet from it. When he, seated in the buggy, drawn by a double team, was at that distance, the horses necessarily were much closer to (probably within ten feet of) the rails, and moving forward at a brisk walk. He turned toward the west, looking for a train, and, seeing none, turned eastward and discovered the engine close upon him. His horses were then nearly across the rails, so he struck them at once to hurry them forward, but the buggy did not clear the track in time to escape disaster, and the injuries followed as stated. Here plaintiff seems to *600have been looking and listening for danger at various points along the road. He could not look both ways at the same time when he reached the first point of clear observation. It so happened that he looked west, first, on reaching it, instead of east, and that when he looked east, in passing over the short space to the track, it was too late to be of any avail; but his action in the premises was not such as to indicate such recklessness or want of caution as would constitute negligence as a matter of law. We are not prepared to say that his conduct was different from what the man of average prudence would do in the same circumstances. He was under no legal obligation to shape his action on the theory that the defendant would disregard the plain requirements of law respecting a signal of its coming train. He was confronted with peculiar conditions, shown by the topography of the crossing, and was bound to use such care as would ordinarily be exercised by an intelligent man amid such surroundings. Whether he did so or not, was a question of fact on the case here made. [Johnson v. Railroad (1883), 77 Mo. 546; Kellogg v. Railroad, (1879), 79 N. Y. 72; Greany v. Railroad (1886), 101 N. Y. 419; Davis v. New York Cent. etc. Co. (1872), 47 N. Y. 400; Randall v. Railroad (1882), 132 Mass. 269; Tyler v. Railroad (1884), 137 Mass. 238.] The trial court did not err in refusing to give an instruction that plaintiff could not recover.”
The case at bar is a stronger one for the plaintiff than the case last cited. There, there was space after passing the obstruction in which the plaintiff could have sat in his buggy and seen the train before it was upon him if he had looked to the east first, or if he had stopped again after reaching that space. But having stopped and listened before reaching that point and hearing no signal he drove on, and when he reached the clear space he looked first to the west and seeing no train in that direction he looked to the east, but it was too late. In *601the case at bar, there was no space, according to the plaintiff’s testimony, between the obstruction and the track, where he could have sat in his wagon and seen the train coming from the east; the only way for him to have obtained a view of the track eastward would have been to leave his wagon and go forward, on foot, close to the track. Before we could declare as a proposition of law that the plaintiff was guilty of contributory negligence under those circumstances, we would have to say not only that in our opinion ordinary care demanded that he should have left his wagon and gone forward on foot as close to the track as might be necessary to enable him to see, but also that course was so manifestly the only one that an ordinarily prudent man would have taken, that reasonable minds could not differ about it. But that can not be said.
The testimony of the engineer in the case last cited is strikingly like that of the engineer in this. He said: “When we got almost to the road crossing, I saw a team coming right on the rails, the horses’ forefeet just inside the north rail. When first I saw them we were about thirty feet from the crossing, and were running about twenty-five miles an hour. .;.. The first I saw he was coming on the track. I immediately shut my engine off and called for brakes.” Commenting on this evidence the court said: “The engineer was at his post, on the side of the cab from which the plaintiff was approaching, and if he could not see the buggy until five-sixths of a second before reaching the point of crossing, it is measurably clear that the man in the buggy could not have seen the engine much sooner.”
In Henze v. Railroad, 71 Mo. 636, cited in appellant’s brief, it was held that plaintiff’s husband was guilty of negligence which barred her recovery. The court per Henry, J., said, l. c. 639: “Henze stopped neither to look nor listen, but drove on to the track without taking any precaution what*602ever to guard against danger.....If he had stopped to look and listen when near the track, and could neither see nor hear the approaching train on account of the cut or other obstructions, and no signal was given from the train, he would have been justifiable in attempting to cross, and no negligence would have been imputable to him.”
In Kelly v. Railroad, 88 Mo. 534, also cited by appellant, the court held plaintiff’s driver guilty of contributory negligence. It seems that the driver’s view of the track was obstructed by cars on a side track, and he was driving a wagon loaded with rock, which made noise that interfered with his hearing, yet he drove heedlessly on without stopping to listen. The court, per Ray, J., said, l. c. 547: “We do not understand the law to be, nor do we so hold, that it is the duty of the traveler, where the highway crosses the railroad track, absolutely and always to stop, or to fasten his team and go forward on foot to a point where he can look up and down the track, but as applied and limited to the facts of this case at such crossings and at such hours when trains are passing and liable to pass at any time, as was well known to said Coleman, we think it does require of him, where he can not see the track, to listen, and, if necessary for that purpose, on account of the noise made by his wagon, to stop and listen for the train before venturing blindly upon it. This does not, we think, exact or require any unreasonable or extraordinary prudence or precaution on the part of the traveler, but is only such prudence as a reasonable man would take for the protection of his own person and property under such circumstances.”
In Petty v. Railroad, 88 Mo. 306, l. c. 318, the court, per Norton, J., said: “But assuming that he could, at the distance of two hundred yards west of the crossing, have heard the rumbling noise of a train, and that in fact he did hear it, it does not follow that he was guilty of negligence in proceed*603ing on his way, and for these reasons: The deceased might well have concluded that the approaching train was more than eighty rods from the crossing, and that it was safe for him to proceed on his way, relying on the presumption that the defendant would not disobey the law, in failing to notify him of its approach by ringing its bell or sounding its whistle, when it came within a quarter of a mile of the crossing, to which notice he was by law entitled, and which it was the duty of defendant to give.” And further on in the same opinion, referring to the statute requiring the whistle to be sounded or the bell rung when approaching a public road, it is' said: “Its observance is a reasonable requirement, and for its non-observance railroad companies should be held to a strict accountability. Where it is not observed and injury results, in an action to recover damages therefor, a clear case of contributory negligence must be established before the courts, as a matter of law, exempt them from liability on that ground.”
But the decision in that case is not to be interpreted to mean that one may so implicitly rely on the performance of its duty by the railroad company as to neglect his own duty under the circumstances. The rule is well stated in Weller v. Railroad, 120 Mo. 635, l. c. 652, by Maceaklane, I.: “Railroad tracks are places of danger, though trains are run under the most careful observance of the strictest regulation; and the duty rests upon a traveler on approaching a track, to use reasonable care to ascertain if there be danger. If he use such reasonable precaution for his own safety as the law or common prudence enjoins, he has the right, in the absence of information to the contrary, in determining whether the way is open and safe, to rely upon the presumption that the corporation wilj. perform its duty, and observe the precautions imposed upon it.”
But we have already referred to and quoted from enough *604cases to show what the law of this State is on this subject.
There was ample evidence to support a finding by the jury that the plaintiff approached this crossing with reasonable care, all the conditions considered. There is nothing in the evidence to suggest that he was either unmindful or heedless of the danger. His own testimony, and that of the man who was driving the wagon that followed his, is unequivocally to the effect that he stopped, listened, and consulted his watch with reference to the schedule time of that train; finding that it was three or four minutes past train time, and hearing no bell or whistle he thought the train had passed, but still drove slowly on, listening and looking as best he could. Under those circumstances, as held in the case last cited, he had a right to rely on the defendant’s observance of the law and it was not negligence for him to do so. But even conceding that a fair mind might conclude that he had not used ordinary care as tested by common experience, yet it would be impossible to say that other fair minds might not reach a different conclusion, and that being the case it is a question for the jury. As to the charge that the verdict is the result of prejudice or passion, we see nothing in the evidence to support it.
The case is presented in the brief of the appellant’s learned counsel under the one general proposition that the court erred in refusing to instruct the jury at the close of all the evidence that the plaintiff was not entitled to recover. The several points discussed in the brief are subdivisions of that proposition, and have been considered by us under that head. The appellant has nothing to complain of in the instruction nor in other rulings of the trial court.
There is no error in the record and the judgment of the circuit court should be affirmed.