*673SEPARATE CONCURRING OPINION.
GRAVES, J.I concur in the result reached by my Brother Woodson, but for reasons somewhat different. That is to say, I do not follow all of his reasoning. Nor upon reflection and further consideration do I concur in all that was said in the course of the reasoning in the fourth paragraph of the opinion in Hof v. Railroad, 213 Mo. 445.
My views in the Hof case were thus: There was evidence in that case strongly tending to show contributory negligence on the part of the plaintiff. There was no evidence tending to show that there was any independent cause contributing to the injury. In other words the injury must have occurred (1) by reason of defendant’s negligence, or (2) by reason of plaintiff’s negligence, or (3). by reason of both contributing to produce the injury. I was of the opinion then and am of such opinion now, that in a case wherein there is no evidence of any outside cause which tended to produce the injury in conjunction •with the negligence of the defendant, it is error to give an instruction using the words “contributed to cause the injury” or words of similar import, because such an instruction is liable to be very misleading to the average jury. It would not be to lawyers, but instructions are not given for the benefit of lawyers. In such case, a jury unlearned in the law might well ask, What does the court mean by the words “contributed to cause?” The jury might argue thus: ‘ ‘ The court would not have used the word ‘ contributed’ had it meant for us to find that the negligence of the defendant was the sole cause of the injury. Then if it did not so mean, it must have meant that if the negligence of defendant ‘contributed to cause the injury’ such contribution must have been one made to the contributory negligence of plaintiff, *674because there is no evidence in the record that any other than these two causes or causal acts contributed to the result.”
So that we repeat that in a case like the ITof case, where there is no cause shown for the injury, save and except the negligence of the defendant on the one hand or the negligence of plaintiff on the other hand, then in submitting the negligence of the defendant, by instruction, it is error to use the words “contributed to cause,” because it renders the instruction misleading. And this was what the writer had in mind when concurring in the Hof case. There can be no question that a defendant may be liable where his negligence has concurred with some outside cause to produce the injury, which injury would not have been produced by the outside cause alone.
By outside cause, of course, we exclude from view the negligence of the plaintiff himself. We are inclined to think that some things said arguendo in the fourth paragraph of the Hof case go further than this, and hence my reference to it at this time. The result in the Hof case was right and the instruction in that case was properly condemned.
Now to the case at bar. There is evidence that the track was slippery and that this tended to prevent the stopping of cars as readily as they otherwise could have been stopped. So that in this case it might be said that there was a cause, other than the negligence of defendant, and other than the negligence of the plaintiff that contributed to the injury. Under such circumstances there is less reason to condemn the instruction in question than in the Hof case, supra. The instruction would at least be less misleading, and perhaps not misleading at all. Because in the case at bar, the jury could not be forced to say that the negligence of defendant contributed to the negligence of plaintiff and jointly produced the injury, as they practically had to do in the Hof case, if they by their *675reasoning gave the word “contributed” any meaning whatever, but the jury might say that the court meant by the word “contributed” that the negligence of defendant and the slippery track produced the injury. In the use of the words “contributed to cause” in an instruction they should always be so safeguarded as to exclude the idea that the concurring negligence of plaintiff and defendant will permit a recovery. What I have said will indicate how far I concur in the reasoning of the opinion in the present case. Such words were early condemned by this court. [Smith v. Hardesty, 31 Mo. 411.]
So much for outside questions. Now to the reasons for my concurrence in the result reached by my Brother Woodson.
I. Plaintiff asked and received three long instructions covering different phases of alleged negligence upon the part of the defendant, outside of that character of negligence usually charged to a defendant in a case wherein the humanitarian doctrine is relied upon. This alleged negligence of the defendant was placed to the jury in a fourth long instruction. Each of the first three instructions mentioned contains in the close thereof the following or a very similar clause, “and that in attempting to cross said track and in crossing it and while crossing it, plaintiff was exercising ordinary care to avoid injury to himself, then and in that case the plaintiff is entitled to recover against the defendant St. Louis Transit Company. ’ ’
The effect of this clause was to submit the alleged contributory negligence of the plaintiff to the jury:
Plaintiff briefly described the occurrence thus: “Q. State how that occurred, in your own language? A. Well, when I came up to the building line I looked both ways; I always done that “when I crossed a street; I saw the car on the west side of Fourteenth street; *676it was three hundred feet or more out west further, but I kept going on, and I thought sure I had plenty of time to get across the track; and then I looked again, and I saw the car about the middle of the block and my first part of the wagon was in the track; and after that I could not see any more of it on account of the boxes, for I never thought the ear was going to hit around me, for when I saw it, it was far enough away; but when the car struck I could not see the motorman and he could not see me. Q. Were your horses going fast or slow? At what gait were the horses going? A. They were going about two miles per hour.”
The evidence shows that the street car line was in the center of Carr street, and that Carr street was (Sixty feet in width. Carr street runs east and west. Plaintiff approached from the north and was going south. When he approached on a high-seated wagon there was nothing to obstruct his view of the street car line after he passed the building line on the north side of Carr street. He says that he then looked and saw this car, as he says three hundred feet away. One of his witnesses says, two car-lengths or sixty feet away. He was familiar with the crossing, having used it almost daily for several years. The incline was downward at the rate of seven feet to the hundred. His witnesses say the car was going nearly twenty miles an hour. What they saw he must have seen, for they were in no better position to see and know than he. He saw this rapidly moving car coming down a grade of that character just as he passed the building line, yet with his horses moving only two miles an hour he drives forward, and according to his own statement never looked again until the front wheels of his wagon were in the tracks. Knowing that a car was coming and rapidly coming, he made no attempt to see the position of the car at the time his horses reached the track, and *677before they went upon the tract. Had he looted then he would have no doubt seen that he could not make it across. Under the evidence of the plaintiff and his own admissions the court should have declared as a matter of law that plaintiff was guilty of contributory negligence and there was therefore error in instructions numbered 1, 2 and 3, given at his request. This, of course, would leave for submission only such negligence of the defendant as was involved in a proper instruction under the. humanitarian rule.
We cannot determine upon what theory the verdict was returned. At any rate the defendant was entitled to have instructions based upon the theory that plaintiff was guilty of contributory negligence, and to have the case confined to the humanitarian doctrine alone. For this error the judgment must be reversed and the cause remanded.
II. There is also another reason why this ver'dict should not be allowed to stand, a matter not particularly discussed by counsel and not mentioned in either of the opinions filed. The defendant asked and the court refused the following instruction:
“The court instructs the jury that while it is the duty of those operating street cars operated by electric power along the streets of a city, to avoid injuring persons using such streets, yet it is also the duty of persons using such streets to themselves exercise care to avoid being injured by such cars.
“If, therefore, the jury find from the evidence that plaintiff, driving a wagon drawn by a pair of horses and loaded with boxes, drove along Thirteenth street toward Carr street, and drove into Carr street, and that as he so drove into Carr street he looked to the West and saw that such a car was approaching from the west and was then about one block from Thirteenth street, and that plaintiff without paying any attention to the speed at which such car was so *678approaching, ceased to observe the car, and drove onto the street railway track along which the car was approaching, paying no attention to the car; and that after having so driven onto such track in front of such approaching car, plaintiff again looked for the car, and saw it, and saw that it had reduced its distance from plaintiff to about one-half of the distance at which plaintiff had before seen it, and that it was still approaching him; and that thereupon plaintiff; heedless of the danger of his situation, again turned his attention from the car, misjudged his situation, and assumed that there was no danger of the wagon he drove being struck by the car, and did not increase, or attempt to increase the speed at which he was driving, and that he was driving at a walk, and that by reason of the failure of the motorman in charge of said ear to stop the same, and by reason of such failure of plaintiff to recognize the danger of the situation, and of his failure and neglect to make any effort to avoid a collision of said car and wagon, the plaintiff received the injuries sued for in this action, then the jury will find that plaintiff was guilty of negligence directly contributing to his said injuries, and in that event the verdict of the jury will be for the defendants.”
This instruction is one fairly predicated upon the facts and circumstances in the case, and is the only instruction asked by the defendants, barring of course the demurrer to the evidence. If the court was going to submit the question of contributory negligence at all, as it did attempt to do in instructions numbered 1, 2 and 3, for the plaintiff, the defendants were clearly entitled to have an instruction upon contributory negligence covering their theory under the facts, and its refusal was clear error, if the question was to be submitted at all.
Considering that plaintiff was fifty-six years old, with an earning capacity of only eleven dollars per *679week, the sum of fifteen thousand dollars for the amputation of a leg just above the ankle looks exceedingly large, but defendants have not urged that in the motion for new trial, and it is not a question here. We mention it, that so far as we are concerned, such may not be considered as precedent in future cases.
For these reasons the judgment against the defendant transit company should be reversed and remanded. As to the judgment against the other defendant, we understand that all agree it should be reversed outright.