DISSENTING OPINION.
VALLIANT, J.I do not concur in the result reached by the majority opinion for reasons fully assigned in my opinion filed in Division One, which I have hereunto attached and filed as and for my dissenting opinion in this court.
In my dissent I am joined by Gantt and Lamm, JJ.Plaintiff recovered a judgment for $15,000' against both the defendants as damages for personal injuries suffered by him in consequence of a wagon, in which he was riding as driver of the team of horses, being struck by a street car which was being operated at the time by the St. Louis Transit Company on a street railway track belonging to the United Railways Company. From that judgment both defendants have appealed.
The petition charges that the defendants owned and operated the street railway and cars.. The acts of negligence charged are: 1. Running the car at a speed in' excess of eight miles an hour in'violation of a city ordinance. 2. Operating the car at a rate of speed that was negligent under the circumstances. 3. Failing to sound the gong. 4. Negligently failing to stop the car to avoid the collision *680after the motorman saw the position of peril in which the plaintiff was.
The answer was' a general denial and a plea of contributory negligence.
There is not much, if any, dispute about the facts. The plaintiff was driving a two-horse wagon loaded with empty boxes. He was sitting on the driver’s seat in the wagon directly over the front wheels and about four feet behind the horses. There were flanges on the sides of the wagon; the boxes were piled up high behind the driver and on each side of him, extending above his head about two feet, intercepting his view on either side. The length of the outfit, from the rear of the wagon to front of the horses, was about twenty-five feet.
Carr street runs east and west. There was a single-track street railway in Carr street, on which the cars were operated from west to east. Going east a car would cross in succession Fifteenth, Fourteenth and Thirteenth streets. This accident occurred at the intersection of Thirteenth street. From Fourteenth to Thirteenth street the distance is 310.7 feet. Half way between Fourteenth and Thirteenth is an alley. Carr street, is sixty feet wide, with a sidewalk twelve feet wide on each side, leaving a roadway from curb to curb thirty-six feet wide. The houses on the north side of the street come out to the building line.
Thirteenth street was at that time the only street between Fifteenth and Broadway (which by its number would be Fifth street) on which there was no railway track, and it was. a much traveled street. The plaintiff was coming from a point north of Carr street driving south on Thirteenth. When he got to the building line on the north side of Carr street he looked to the east and to the west, and he saw a street car at Fourteenth street coming east, his horses were going at a walk and he testified that he thought he *681had time to cross the track in safety, therefore proceeded on his “way. When the front part of his wagon was on the track he again saw the car, it was then at the alley in the middle of the block between Fourteenth and Thirteenth streets, about one hundred and fifty feet distant; after that, because the boxes were piled up on both sides of him, he could not see the car again, hut he still thought, as he testified, that he would cross in safety. But before the wagon had cleared the track the car struck the rear part of the hind wheel with such force that the plaintiff was thrown to the street and some of the boxes fell on him. He was seriously injured.
The testimony tended to show that the car was going unusually fast, that it was going twice as fast as usual at that point; the rate was estimated at fifteen to eighteen miles an hour. The testimony was that it was going with such momentum that after striking the wagon it went a considerable distance into the next block.
The plaintiff called the defendant’s motorman as a witness, presumably to prove that it was a car of the transit company and that he was in the service of that company, hut he was also asked about the equipment of the car and to give his understanding as to how the accident occurred. He'testified that the car was well equipped, brake, sandbox, reverse and all in good order. He testified that when he first saw the wagon and team they were just coming into Carr street and he was about two car-lengths distant, that is, about sixty-four feet; he sounded the gong and then the plaintiff looked at him, the horses had got into the street and about ten or fifteen feet from the track. “I was sounding the gong; and I saw he was going to strike the car; I already had the brake partly set; I saw the car was sliding and I reversed the power and shoved the lever down and then the car slid into the wagon.” He had already stated that the *682track was muddy and slippery and that there was a downgrade. “Q. When yon were two car-lengths away, I understand you to say you then realized there would he a collision and then you set your brakes? A. Yes, sir. ... I could not have stopped the car quicker than I did. Q'. How many feet more would have been required? A. It would have taken about three feet more.” The testimony of plaintiff’s other witnesses was to the effect that the speed of the car was not reduced any from Fourteenth street to the point of collision, and that after the collision it ran a considerable distance into the next block.
The city ordinance limiting the speed of the car to eight miles an hour was read in evidence, also the Vigilant Watch Ordinance. Á lease from the United Railways Company to the transit company of its tracks and equipments ‘was read in evidence. This was the same lease that was in question in the case of Moorshead v. United Railways Co., 203 Mo. 121.
At the close of the plaintiff’s case each of the defendants asked an instruction in the nature of a demurrer to the evidence which was refused and exception taken. Defendants introduced no evidence.
In three of the instructions given for the plaintiff the jury were authorized to find the defendant guilty of negligence based on the speed of the car; in the first instruction it was said that if the car was going faster than eight miles an hour it was going in violation of the city ordinance and it was therefore negligence on the part of the transit company; in the second and third it was said that if the car was going at a rate of speed which under the circumstances was dangerous the act was negligence. And in those three instructions if the jury should find the defendant transit company guilty of negligence in the particulars there mentioned and that such negligence caused (or, as said in the first and third instruction, contributed to cause) the accident, and if the jury should find that *683the plaintiff was at the time exercising ordinary care to avoid injury to himself, the verdict should be for the plaintiff against the transit company.'
The fourth instruction was given on the humanitarian doctrine. It was in effect that if the motorman saw the plaintiff in a condition of peril, likely to be struck by the car, in time by the exercise of ordinary care to have avoided the collision and failed to do so, the plaintiff was entitled to recover, notwithstanding the jury might find that the plaintiff was guilty of negligence in attempting to cross the track at the time and under the circumstances.
The instructions are long and it is unnecessary to copy them in full because their substance is sufficiently stated above to enable us to appreciate the points presented by appellant transit company in relation to them.
I. Appellants’ first point is that by asking instruction numbered 4, on the humanitarian doctrine, the plaintiff confessed that he was guilty of negligence, therefore he had no right to instructions 1, 2, and 3 which authorized a verdict in his favor only on a finding by the jury that he was not guilty of negligence.
The position assumed by the plaintiff in asking instructions 1, 2 and 3 is-not inconsistent with his position assumed in instruction 4. In his first three instructions he asks a verdict based on a finding that the accident occurred by reason of the unlawful or dangerous speed of the car.. He was entitled to instructions on that theory because his evidence tended to prove it, but if that was all the complaint that he had to make against the defendant he could not recover on that alone if the jury should also find that he was guilty of negligence that contributed to the accident; therefore he qualified his demand for a verdict on that theory by inserting in his instructions *684that the jury should also find that he was exercising ordinary care. But whilst he was entitled to go to the jury on that theory he was not limited to that, because his pleading and proof went beyond that and were broad enough to give him another theory on which the jury, if the facts were so found, might give him a verdict. Not in contradiction to the first theory, but entirely consistent therewith and in addition thereto, he charges that the defendant not only ran its car at an unlawful or dangerous speed but also that after the motorman saw him in peril he could, by the exercise of ordinary care, have averted the injury, yet failed to do so, and the law as declared in the instructions is to the effect that whilst his own negligence would defeat a recovery on the one state of facts, yet if in addition to those facts the other facts are found he would be entitled to recover even if he was guilty of negligence.
The humanity rule proceeds on the principle that human life is so precious the law will not justify or excuse its destruction if, by the exercise of ordinary care, the destroyer could have avoided it even though the man had not taken the care that he should to protect himself, and in such case the courts refuse, to apply the ordinary law of contributory negligence. The humanitarian rule is simply an exception to the general rule concerning contributory negligence; it means that under certain conditions the law that a plaintiff cannot recover when he has been guilty of contributory negligence does not apply. That is what this court said in Kellny v. Railroad, 101 Mo. 67. In that case the judgment was reversed for errors in the instructions, one of which undertook to state but did not correctly state the humanitarian rule. There was also an instruction given which declared as a matter of law that the plaintiff had been guilty of contributory negligence. This court held that under the evidence in that case the question of whether the plain*685tiffs bad been guilty of contributory negligence was one of fact for tbe jury and in remanding tbe cause to be tried again tbe court, at page 79, said: “An instruction ought to have been given submitting to tbe jury tbe question of tbe plaintiff’s alleged contributory negligence, and one submitting tbe question of whether tbe defendant’s employees could, by tbe exercise of reasonable care, have discovered bis situation, and thereafter have stopped tbe train in time to have prevented tbe accident.” Tbe court reversed tbe judgment and remanded tbe cause to be retried on exactly tbe kind of instructions that were given in tbe case now before us.
Tbe question of whether a plaintiff has been guilty of contributory negligence is often a close one and tbe question of whether, conceding such negligence, tbe defendant saw him in time to have saved him is likewise often a close question. A plaintiff may well believe that be bad exercised due care, and, so believing, be has a right to present bis case to tbe court on that •theory, but be may also well believe that whether guilty of negligence himself or not, tbe defendant could have saved him from injury if be would, but would not, and so believing be has a right to present that theory of bis case to tbe court.
We bold that tbe plaintiff was not precluded from submitting to tbe jury tbe question of whether or not be was guilty of contributory negligence, by reason of bis asking also an instruction on tbe humanitarian rule.
II. Appellants’ next point is that the instructions 1, 2 and 3 were erroneous because they submitted tbe question of tbe plaintiff’s contributory negligence,’ to the jury, whereas tbe court ought to have declared as a matter of law that tbe plaintiff was guilty. In support of that contention appellant in its brief says: “He drove upon tbe track immediately in front of *686the car which he saw was bearing down upon him, when by stopping his horses he could have let it pass and thereby have averted the collision.” If that were a correct summary of the evidence then the court should have declared that the plaintiff was guilty of contributory negligence. But in that summary appellant overlooks all the evidence except that of the motorman, and overlooks some of the inaccuracies of his testimony. He testified that he did not see the wagon until he was within two car-lengths of it, that is, sixty-four feet; that he then realized that there would be a collision, or as he expressed it that the wagon was going to strike the car, and he did everything in his power to stop before colliding, but did not succeed.
The testimony of all the other witnesses to the scene Vas to the effect that when the plaintiff drove into Carr street, the street car was as far west as Fourteenth street, that it was going unusually fast and did not slacken speed until it struck the wagon. The motorman was called by the plaintiff and therefore plaintiff cannot question his veracity, but plaintiff is not bound by everything his witness says and may show by other witnesses that this witness was mistaken. It was for the jury to decide which witnesses were most probably correct. If the testimony of the plaintiff and that of his witnesses, other than the motorman, was true, the court could not as a matter of law say that he did not exercise reasonable care, and whether that testimony was true was a question for the jury.
We must bear in mind that this was not a crossing of a steam railroad in the country. If a man seeing an engine and train coming on a steam railroad in the country three hundred feet distant, and if he should, in the face of the approaching train, attempt to drive a team of horses with wagon at a walk across *687the track, there would he presented a very different case from the one we have before ns.
The public has as much right to use a public street in the city as has the street car company and each must yield reasonable regard for the right of the other. If every person about to drive across a street railway in the city should be compelled, when he sees a street car coming three hundred feet away, to stop and wait until the car passes there would be an unreasonable hindrance in ordinary street traffic. Thq plaintiff testified that when he cleared the building line coming into Carr street he looked and saw this car coming, it Vas then at Fourteenth street, which by measurement was shown to be three hundred and ten feet from Thirteenth street; he had then about thirty-five or forty to go to get on the other side of the track; if the ear had been going, as plaintiff had a right to presume it was, within the speed limit prescribed by the ordinance he could reasonably have calculated that he could have passed over before the car reached him, and if the motorman was conscious that he was going faster than he should, or than was usual, it was his duty, seeing the wagon, as he must have seen it if he was looking, to have reduced his speed, and the court could not say as a matter of law that under those circumstances the plaintiff was guilty of contributory negligence if he took into his calculation the presumption that the motorman would do his duty. This is the account of it given by the plaintiff himself: “Well, when I came to the budding line I looked both ways. I always done that when I crossed a street; and I saw the car on the Vest side of Fourteenth street; it was three' hundred feet or more out west further. I kept going on; I thought sure I had plenty of time to get across the track; when I looked again! I saw the car about the middle of the block; the first part of my wagon was in the tracks, and after that I could not see any more of- it on ac*688count of the boxes, but I never thought the car was going to hit around me, for when I saw it it was far enough away, and when the car struck I could not see the motorman and he could not see me.”
According to this testimony when the plaintiff’s .team had advanced far enough into Carr street to enable him from his position in the wagon to look for a car he saw the car three hundred feet or more distant and believing he had ample time to cross he drove on; when part of his wagon was in the tracks he looked again and the car was in the middle of the block, one hundred and fifty feet distant; he had then probably only ten or fifteen feet to go before clearing the track, while the car had ten times that space to travel. Plaintiff was then in a position in which he could not stop and from which he could not retreat, he could only go ahead, but he was in plain view of the motorman and there was evidence that the car could have been stopped in half the distance with safety. If that was the condition, then, even if the plaintiff was negligent in putting himself in it, the defendant would be liable under the humanity rule and whether or not that was the condition was a question for the jury. In a case very like this our St. Louis Court of Appeals in an opinion by Judge Bland very clearly expounds the law. [Heintz v. Railroad, 115 Mo. App. 667.] The trial court did not err in submitting the question of plaintiff’s contributory negligence to the jury.
III. It is insisted that instructions 1 and 3 are erroneous because they authorized a finding for the plaintiff if the negligent acts therein hypothesized *‘contributed to cause his injuries;” the contention is that the instructions should have said “caused” the injuries.
As we have already seen, those two instructions authorized the jury to find for the plaintiff only if *689besides finding that defendant was guilty of the negligent acts therein mentioned they should also find that the plaintiff was exercising ordinary care for his own safety, therefore, it is not contended that the instructions are susceptible of the meaning that plaintiff could recover if defendant’s negligence contributed with plaintiff’s negligence to cause the accident, hut the contention is that they authorized a recovery if the defendant’s negligence only contributed with other conditions, not named, to cause the accident.
If the proposition of the learned counsel is that in order to establish the liability of a tortfeasor it must be shown that his act alone caused the injury complained of it is contrary to all our reading on that subject.
1 Thompson on Negligence, sec. 75: “If the concurrent or successive negligence pf two persons, combined together, results in an injury to a third person, he may recover damages from either or both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury. ’ ’
29 Cye. 487: “If the concurrent negligence of two or more persons combined together results in an injury to a third person he may recover from either or all. And in determining the liability of either of two persons whose concurrent negligence results in injury, the comparative degrees of negligence are not to be considered, each being liable for the whole, even though the other was equally culpable, or contributed in a greater degree to the injury, and the proportion in which the negligence of each contributed to the injury, or the degrees of care used, is not to be considered.” And at page 496 the same text-writer says: “As a general rule it may be said that negligence *690to render a person liable need not be tbe sole cause of an injury. It is sufficient that Ms negligence concurring with one or more efficient causes, other than the plaintiff’s fault, is the proximate cause of the injury.” And at page 504 the author says: “Where the proximate cause of the injury was the act of God defendant “will not be liable, although he was negligent. Where the vis major is- of so overwhelming a character that it would have produced the injury independently of such negligence it will relieve the defendant from liability. Nevertheless, the rule imposing liability on defendant, although another efficient cause concurs with defendant’s negligence, applies where an accident or act of God is the concurring cause.”
Cooley on Torts (3 Éd.), p. 226: “When contributory action of all accomplishes a particular result, it is unimportant to the party injured that one contributed much to the injury and another little; the one least guilty is liable for all because he aided in accomplishing all.”
The above quotations from standard text-writers are but a few that might be cited, all to the same effect; if there is any authority to the contrary it has not come under our notice.
According to the text-writers above referred to a defendant may be sued alone and held liable for the result of concurrent causes of which his negligence is one whether the other causes were acts of other persons or a condition of circumstances or an act of God. And if sued alone for a result of concurrent acts of negligence of himself and others he cannot escape liability on the plea that others equally or more guilty than he are not made parties or if sued for a result of his negligence concurring with physical conditions or an act of God, he cannot escape on the plea that his act only contributed to the result. If then a defendant is liable under such conditions when his act only *691directly contributed to tbe result, why should not the jury trying tbe case be so instructed?
Tbe law as laid down by tbe authors above named has always been recognized as correct by this court.-
In Bassett v. St. Joseph, 53 Mo. 290, plaintiff ‘was injured by falling into an excavation in or adjoining" a street of tbe city; tbe evidence tended to show that when tbe plaintiff was on tbe brink of tbe excavation a mule either kicked her into tbe excavation or she jumped into it to avoid being kicked. Tbe trial court instructed tbe jury that if they found certain facts indicating negligence on tbe part of tbe city in respect to tbe excavation they should find for tbe plaintiff unless they should find that her fall was caused solely by being kicked or jumping to avoid being kicked, in which event she could not recover. Tbe verdict and judgment were for the defendant city and tbe plaintiff appealed. This court reversed tbe judgment on tbe ground that tbe instruction was erroneous, in as much as it did not present to tbe jury tbe théory of tbe liability of tbe city for its concurrent act of negligence contributing, with tbe kicking by tbe mule, to tbe result. Tbe court said: “She would have,a right to recover, notwithstanding tbe cause contributing to tbe injury was tbe attempt of tbe mule to kick tbe plaintiff,” etc. The judgment in that case seems to have been reversed because tbe instruction did not tell tbe jury that defendant was liable if its negligent act “contributed to cause the injury,whereas in tbe ease at bar we are asked to reverse tbe judgment because tbe trial court did instruct tbe jury as in that case this court said tbe trial court should have done. That decision was rendered in 1873 and tbe courts of this State have been trying cases of this kind on that theory from that day to this.
In Brennan v. St. Louis, 92 Mo. 482, it was contended on tbe part of tbe defendant city that tbe defective condition of tbe street was not tbe sole cause *692of the injury to the plaintiff hut that the stumbling of another girl was the immediate cause; but this court said: “Cases are to be found, where it seems to be held, under like circumstances, that in order to recover, it must be proven that the injury was occasioned solely by the neglect of the defendant, and not the neglect of the defendant, combined with some accidental cause. But this court, in discussing a like question in Bassett v. St. Joseph, 53 Mo. 290, l. c. 300; said: then follows a quotation from the decision in the Bassett case. Continuing the court in the Brennan ease said: “The same principle, that the plaintiff may recover, where he is in the exercise of ordinary care and prudence, and the injury is attributable to the defective street, with some accidental cause, was again asserted in Hull v. Kansas City, 54 Mo. 598, and must be taken as established law of this State.” The instructions under which the Brennan case was given to the jury are not copied in the report, hut. from the comment on them by-the court we infer they contained words similar to those now complained of by appellant in the case at bar. The court’s comment was: “By the instructions, upon which the case went to the jury, the plaintiff was allowed to recover, though the stumbling of the other girl in some degree contributed to the injury, but if that was the sole cause, the jury Were told the plaintiff could not recover. These instructions present the law of the case fairly enough.”
In Brash v. St. Louis, 161 Mo. 433, the plaintiff had been damaged by the bursting of a sewer belonging to the city, the bursting had immediately followed a rainstorm of unprecedented violence, there was evidence also of a defect in the sewer. The defense was that the bursting of the sewer was caused by the unusual rainstorm and an instruction was asked and refused to the effect that if the bursting of the sewer was caused by a storm of unusual force and violence the plaintiff could not recover. This court said: “Al*693though, the unusual rainfall may have been one of the causes of the bursting of the sewer, yet if the defects in the sewer were also a concurring cause, producing that effect, the defendant is nevertheless liable, hence the court committed no error in refusing defendant’s instruction numbered 6.”
In Straub v. St. Louis, 175 Mo. 413, the Bassett case and the Brennan case above cited are referred to as announcing the correct doctrine.
In Riska v. Railroad, 180 Mo. 168, instructions couched in the very same words of the instruction now assailed, that is, “directly contributed to cause the injury,” were there assailed for that reason, but the instructions were held to be right, the court saying: “It ‘would be difficult to couch an instruction in plainer or more pointed language than the parts of these instructions with reference to the cause of the injury.”
In Newcomb v. Railroad, 169 Mo. 409, an instruction given at the request of the defendant told the jury that plaintiff could not recover unless it appeared from the evidence that “his injury was caused solely by the negligence of defendant, without any fault, neglect, or want of ordinary care and prudence on his part.” The judgment was reversed because of the error in that instruction in using the word “solely” in connection with the causal negligence of the dedefendant. Thus in the line of our decisions we not only have cases which approve the term “directly contributed to cause”, but cases which condemn the term “solely caused”. There is really no difference in the meaning of the word “caused” in the sense in which it is contended by appellant in the case at bar that it should have been used, and the term “solely caused” in the sense.in which it was used in the Newcomb case. The term “caused” in contrast with the term “contributed to cause ’ ’ means solely caused.
*694In Zeis v. Brewing Assn., 205 Mo. 638, l. c. 654, this court approved the action of the trial court in refusing an instruction which said that plaintiff could not recover unless the jury should find that the condition of the box in question in that case was “the direct cause of the injury”. This court commenting on that instruction said: “The weak condition of the box was but one of several facts taken together which caused the injury. The falling of the bottle, its breaking, the flying glass and its striking the eye were all .contributing causes of the injury.” In that case the only negligence charged in the petition or attempted to be proven by the evidence was the defective condition of the box, yet it was held in effect that it would have been error if the trial court had instructed that the plaintiff could not recover unless the defective box caused the injury.
There are other cases in our books in which the law as declared in the cases above cited is recognized, but the cases cited are sufficient to show the invariable ruling of this court on this subject. We have felt justified in making the somewhat lengthy review of our judicial history on this subject because in the brief of appellant We are confronted with a recent decision of this court which seems to hold to the contrary of what we have hitherto held. [Hof v. Railroad, 213 Mo. 445.] In looking back now over our course from 1873, when the case of Bassett v. St. Joseph was decided, down to 1907, when Zeis v. Brewing Assn. was decided, we are convinced that we fell into error when we reversed the judgment in Hof v. Railroad on the ground that the instruction in that case was erroneous because it contained the words “directly contributed to cause” instead of “caused” the injury, and we therefore overrule the case.
It is nearly always the case that the negligent act of the defendant is only a concurring cause of the injury, sometimes it concurs with the acts of others, *695sometimes (and perhaps almost always) with physical conditions for the existence of which defendant may not he responsible, sometimes there are joint tortfeasors, sometimes it is the act of God in the wind and waves, bnt whatever the concurring act or thing may be (unless of course it be the negligence of the party injured himself), if it would not have caused the injury but for the concurrence of the act of the defendant, the defendant is liable. In the case at bar we have a down grade and a muddy, slippery track, which very likely were contributing causes to this accident, but, if the testimony of the plaintiff and his witnesses be true, those conditions would not have caused the injury in question if the defendant had exercised reasonable care.
If, therefore, the defendant is liable because his .negligence directly contributed with the conditions surrounding to cause the injury, what error can there be in so directing the jury? It is argued that the instruction is vague in that it leaves the jury to speculate as to other causes that might have contributed to produce the result. But, whatever causes might run through the minds of the jury, the instruction authorizes them to hold the defendant liable only when they find that his negligent act directly contributed to cause the injury. If the defendant’s negligent act did directly contribute to cause the injury then the injury would not have occurred without his negligent act, and the defendant is held liable not' because of the acts of others or of conditions for whose existence it is not responsible, but because of its own negligence. If defendant’s own act contributed to the result by concurring with other acts or conditions and the result would not have occurred but for his contribution, he is liable no matter what other possible causes might have existed, provided of course that the negligence of the plaintiff himself was not one of the causes. We hold that there was no error in those instructions.
*696IV. The last point presented by the appellant transit company is that plaintiff’s instruction number 4 is erroneous because it permitted a finding for plaintiff if the jury believed the motorman could have averted the collision by stopping the car, instead of' directing a finding for the plaintiff, as it should have done, in the event the jury believed the car could have been stopped with safety to the passengers, in time to have avoided the collision.”
The motorman’s first duty, of course, was to his passengers, and if there had been any evidence tending to show that a quicker stop could have been made but for hazard to the passengers, or any circumstances to indicate to the trial court that the motorman was slower in stopping because of his guardianship over his passengers than he otherwise would have been, the trial court Would have put that question in the instruction, but there was nothing in the case to suggest such a question. The motorman testified that he did stop as quickly as he could, using the brake, the reverse and sand, the other witnesses testified that he did not try to stop at all. The only mention of passengers by the motorman was when he was asked how many he had, he answered that there were “quite a few,” whatever that may mean. The court committed no error in omitting that question from the instruction.
V. All that is above said is in reference to the appeal of the transit company. "We come now to the appeal of the United Railways Company.
The only evidence to connect the United Railways Company with the plaintiff’s injury is to the effect that it owned the street railway and its equipment and had before the accident, leased it to the transit company, which last named company alone was in possession and operating it. The lease Was in evidence and it appears that it is the same lease that was before us in the case of Moorshead v. United Rys. Co., *697203 Mo. 121. Following our decision in that case we now hold that the United Eailways Company is not liable to the plaintiff in this action and the instruction asked by it in the nature of a demurrer to the evidence should have been given.
The judgment is affirmed as against the St. Louis Transit Company end reversed as against the United Eailways Company.
Lamm, P. J., concurs; Woodson and Graves, JJ., dissent from all except paragraph V, as to which they concur. A majority of the judges not concurring, the cause is transferred to Court in Banc.