*474IN DIVISION ONE.
GRAVES, J.Plaintiff sues for personal injuries in the sum of ten thousand dollars. Verdict haying been returned against her by a jury in the court below, she has appealed to this court. Complaint is. chiefly lodged against some of the instructions given for the defendant. In fact, the assignments of error go to the giving of six instructions nisi for defendants, and the overruling of the motion for new trial. The motion for new trial preserved these matters raised in the assignment of errors. This assignment requires, however, an outline of the pleadings and proof. As to the several given instructions the proof can best be discussed with the points made.
In her petition the plaintiff makes charges which can perhaps be somewhat summarized. To so do, pleading and proof can well he considered together to a certain extent. Defendant E. I. Harris was a contractor under defendant Kansas City. His business cognomen was the Missouri Sidewalk Company. The alleged 'accident to plaintiff occurred on the west side of Main street, between Thirty-ninth street and Westport avenue. Such street was admittedly under the control of the city, one of the defendants herein, and was a public thoroughfare of said city. It is admitted that under contract with the city, defendant Harris, contracting under the cognomen aforesaid, .excavated on the west side of Main street in said city, and between Thirty-ninth street and Westport avenue, for the purpose of putting in a new sidewalk, a place about five feet wide, seventy-five feet long and one and one-half feet deep. This is charged to have been unsafe, hut of course not admitted. As the gravamen of her charge against both defendants, the plaintiff, with proof of a dark and' rainy night, plants herself upon sections 861 and 862, of article 6 of chapter 14, of the Revised Ordinances of said city, which read:
*475“Lights ancl Barriers. Every person who shall for any purpose, make or cause to he made, any excavation in, upon, under or near or adjoining any street, avenue, sidewalk, alley or other public place, and shall leave any part or portion thereof open, or shall leave any part or portion thereof obstructed with rubbish, building or other material, during the nighttime, shall cause the same to be enclosed with good, substantial and sufficient barriers not less than three feet high, and shall also place a red light at each end thereof in' such a position as to shed its light upon such excavation or obstruction, and shall keep such lights burning from sunset to sunrise.
“Every person who shall in any manner render or cause to be dangerous any street, avenue, sidewalk, alley or other public place, shall from sunset to sunrise provide and properly place such barriers and lights around such dangerous place as are in the preceding section required.”
After specifically charging in her petition a violation of these two sections of the ordinances, and that such violation constituted negligence, she then proceeds :
“Plaintiff further states that on or about the 30th day of September, 1905, at about 8:30 p. m., it was very dark and’ raining very hard, and plaintiff at said time in the exercise of ordinary care and diligence at about the hour of 8:30 p. m., between sunset and sunrise, was walking along the sidewalk on the west side of Main street and at a point on said sidewalk where the said excavation begun, and on the north end of said excavation, stepped off said sidewalk into said excavation in said sidewalk which was then partially filled, with water and was thrown violently down into said excavation, and plaintiff thereby sustained severe injuries to her back, spine and womb; that plaintiff’s womb was displaced and plaintiff suffered .concussion of the spine and spinal column, injuring the nerves of the *476spine, spinal cord and brain, causing curvature of' the spine, spraining her back and causing her nervous system to become severely shocked and prostrated, injuring plaintiff’s brain and eyesight, all of said injuries being permanent.”
After charging that all such injuries were due to the negligence of the two defendants, she asked for damages in the sum of ten thousand dollars, as aforesaid.
Defendant Kansas City answered thus: (1) It admitted that it was a municipal corporation, and denied all other matters, and (2) set up a plea of contributory negligence.
Defendant Harris answered (1) by a plea of general denial, and (2) by a plea of contributory negligence.
Replies to both answers were general denials.
Thus stand some of the admitted facts and the pleadings. The disputed facts, if any, can best be discussed in connection with the questions raised upon the instructions which are challenged. It should be said at this point that it is not seriously questioned that the two defendants occupy the position of contractor and contractee. Nor was it seriously questioned that plaintiff was a servant- girl earning some five dollars per week prior to her alleged injury. The alleged accident occurred at or about 8:30 p. m. on September 30, 1905. It was raining at the time and the depression made by the excavation was filled with water. It is not denied that the lights and barriers required by the ordinance were not there at the time of the alleged injury. For defendants it was shown that there were numerous other lights in the neighborhood by which plaintiff in the exercise of ordinary care could have seen the unprotected place where she fell, but plaintiff in person says that at the time it was raining very hard and very dark and that there was “no light of any kind at the excavation, neither was *477there any barrier, and I did not see that an excavation had been made where the sidewalk should have.been.” There are a great number of witnesses for defendants who testify to the lighted condition of the place from other lights. One of the chief contests seems to have been upon the question of plaintiff’s injury, if any. The diverse testimony upon this question need not now be considered. Further facts bearing upon the questioned instructions will be discussed in the course of the opinion. This sufficiently states the case.
I. Of the instructions complained of, five of them possess the same alleged fault. Instruction “4-D” will serve to illustrate and reads:
“The court instructs the jury that if you believe from the evidence that there were lights along the street burning on the night in question and the light cast from them was sufficient to light the place where plaintiff claims to have fallen so that plaintiff by the exercise of ordinary care and the use of her eyes and other senses ought to have known of the excavation, if any, in the sidewalk and ought by the exercise of ordinary care to have avoided the same, then the plaintiff cannot recover and your verdict must be for defendant Kansas City.”
It will be observed that this instruction requires of the plaintiff the use of ordinary care to discover defects in the sidewalk upon which she was traveling and the use of ordinary care to avoid danger if she discovered defects. To the first requirement plaintiff objects. She contends that unless she knew that there was a defect in the sidewalk she had a right to assume that the city had performed its duty and such sidewalk was in a reasonably safe condition for travel, and thus this instruction placed upon her a burden she did not have to carry. Among other cases, the plaintiff plants herself behind the doctrine of Heberling v. Warrensburg, 204 Mo. 604. The rule announced in the *478Heberling ease to onr mind sustains her contention. In that case the plaintiff was defeated before a jury, but the trial court set aside the verdict because it was impressed with the idea that error had been committed against plaintiff in giving an instruction thus worded: “The court instructs the jury that if you find and believe from the evidence that the plaintiff knew, or by the exercise of ordinary care could have known of the rut or depression in the street at the place where plaintiff claims to have been injured, and by the exercise of ordinary care could have avoided it, then yóur verdict will be for the defendant.”
This instruction was condemned by our brothers in Division Two, and the trial court sustained in granting the plaintiff a new trial. There is an attempt to harmonize the Heberling case with the previous case of Coffey v. Carthage, 186 Mo. 573, but to my mind they do not harmonize. In the Coffey case, supra, Fox, J., said:
‘ ‘ If, by the exercise of a reasonable degree of care and caution, she could have discovered the defect or hole in the sidewalk, and avoided the injury, it was incumbent upon her to do so, and if she failed to comply with this duty that every citizen owes the city, and proceeded carelessly and without paying any attention to where she was walking, then there can be no recovery. [Wheat v. St. Louis, 179 Mo. 572, and cases cited; Phelps v. Salisbury, 161 Mo. 1; Jackson v. Kansas City, 106 Mo. App. 52; Churchman v. Kansas City, 44 Mo. App. 665.]
“In Wheat v. St. Louis, supra, after a careful, thorough and exhaustive review of all the authorities, the rule was thus very aptly and tersely stated: ‘While the city owes the citizen the duty to keep the highways reasonably safe for persons to pass over, the citizen owes the city the duty to use his God-given senses, and not to run into obstructions that he is fa*479miliar with or which by the exercise of ordinary care he conld discover and easily avoid.’ ”
It is clear that Judge Fox was following the case of Wheat v. St. Louis, 179 Mo. 572. In the Wheat case, Marshall, J., speaking for Division One of this court said: “In short the rule is supported not only by the almost universal trend of authority, both English and American, but also by the plainest principles of right- and justice. While the city owes the citizen the duty to keep the highways reasonably safe for persons to pass over, the citizen owes the city the duty to use his God-given senses, and not to run into obstructions that he is familiar with or which by the exercise of ordinary care he could discover and easily avoid. And while the city may be negligent in the discharge of it's duty, the citizen may also be negligent in the discharge of his duty. And if both are negligent and their negligence contributes to the injury, there can be no recovery.”
The italics in this quotation are ours. It may be that there was no necessity in that case for the use of all the language used,' inasmuch as the evidence in Wheat’s case showed that the plaintiff in fact did have knowledge of the defect, but to our mind it was purposely used by the court.
In Woodson v. Met. St. Ry. Co., 224 Mo. 685, the writer was confronted with this exact question, and reviewing the authorities, said this:
“In the case of Wheat v. St. Louis, 179 Mo. l. c. 581-2, this court said: ‘In short the rule is supported not only by the almost universal trend of authority, both English and American, but also by' the plainest principles of right and justice. While the city owes the citizen the duty to keep the highways reasonably safe for persons to pass over, the citizen owes the city the duty to use his God-given senses, and not to run into obstructions that he is familiar with or which by the exercise of ordinary care he could discover and easily avoid. And while the city may be negligent in the dis*480charge of its duty, the citizen may also be negligent in the discharge of his duty. And if both are negligent and their negligence contributes to the injury, there can be no recovery. And if the plaintiff’s negligence necessarily contributes to the happening of the injury, there can be no recovery.’
“To a like effect is Kaiser v. St. Louis, 185 Mo. l. c. 374: ‘Moreover, the plaintiff had driven along that particular part of the street every day for at least ten days, and he therefore knew or could have known by the exercise of ordinary "we, that the pile of earth was there, and as it was no larger than a bucket, he could have easily avoided it, if he had used his senses and the degree of care that is required of one who drives a wagon on a public highway.’ Tbe italics in the foregoing quotations are ours. We simply desire to impress that it is the duty of a traveler to exercise ordinary care in traveling upon the public highways.
“Again in Coffey v. Carthage, 186 Mo. l. c. 585, the rule of conduct of a traveler upon the highway or sidewalk (in that case a sidewalk) is thus stated: ‘ The law upon this proposition may thus be briefly stated: If plaintiff had no knowledge of the defect or hole in the sidewalk, then she had the right to assume that the sidewalk was in a reasonably safe condition. But while she was entitled to act upon this assumption, still she must exercise that degree of care and caution in walking on said sidewalk which a prudent person ordinarily employs under similar circumstances. If, by the exercise of a reasonable degree of care and caution, she could have discovered the defect or hole in the sidewalk, and avoided the injury, it was incumbent upon her to do so, and if she failed to comply with this duty that every citizen owes the city, and proceeded carelessly and without paying any attention to where she was walking, then there can be no recovery. ’
“In Cohn v. City of Kansas, 108 Mo. l. c. 393, Judge Black said.: ‘While in general it is for the jury to say *481whether the plaintiff used ordinary care,- and this question they are to determine from all the circumstances, still it often occurs that the court may declare the plaintiff wanting in due care on given facts. One who attempts to cross over a sidewalk as part of a road, known to him to he dangerous, when the dangerous place could have been easily avoided, as by passing around it, or taking another side of the road, is wanting in due care, and the court may so say as a matter of law.’
“The Iowa court puts the rule thus in the case of Yahn v. City of Ottumwa, 60 Iowa l. c. 433: ‘It was not claimed that the husband’s attention was in any manner diverted from properly driving the team after he took his seat in the wagon. The accident happened in broad daylight. Now, if the stone was in full view of the husband when he started the team, it was his plain duty to have seen and avoided it. The defendant requested the court to instruct the jury, “that it was the duty of the plaintiff’s husband to use care in driving, and to look where he was driving, and to avoid all obstacles which were dangerous in their character and which were plainly visible and not obscured, and if he failed to do so, and the plaintiff was thereby injured, then she cannot recover. ’ ’ This instruction was refused. We think this, or some other explicit instruction applicable to this view of the facts of the case, should have been given. Where an obstruction is in the street in plain view of the driver of a vehicle, and his attention is in no manner diverted so as to excuse him for not seeing the obstruction, and he drives against it or into it, he is clearly guilty of contributing proximately to any injury which may result.’
“It is not worth while going to other States for authority. The rule could not be more clearly stated than in the Coffey case, supra, as to the duty of travelers to exercise ordinary care in walking over side*482walks. Now plaintiff’s testimony shows that these rails were easily seen, and that deceased was leaving the usual pathway, to go upon that part of the space not especially prepared for travel, although deceased had the right to travel it. We. are satisfied that if deceased was at himself at the time, the exercise of ordinary care upon his part would have avoided the accident. The cases supra are the latest utterances of this court upon the question, and it would serve no good purpose to further review the case law of the State, or of other States. To the mind of the writer it would appear that these last expressions of the court lose sight of the idea that a pedestrian can assume whilst walking over a sidewalk that the city has performed its duty and that the sidewalk is reasonably safe for travel. But both divisions of the court have concurred in the doctrine of these late cases and we feel that they should be followed.”
We did not have before us at .that time the Heberling case. It was not cited in the briefs and our investigation did not bring it to our consideration. It will be observed that we expressed some doubt as to the rule announced in the Wheat and Coffey cases. The last few lines of the quotation would so indicate. Whether that doubt is or was well founded is immaterial here. If the Wheat Case and those following it announced the law, then there is a conflict between our own opinions. The Heberling Case is not in line. Under the Heberling case these several instructions in the case at bar are erroneous. Under the other cases they are not erroneous. Upon more mature reflection I am of the opinion that the rule, announced in -the Wheat Case and its successors is correct: The city is not an insurer of its sidewalks nor of the safety of pedestrians. The law only imposes the duty of having sidewalk's reasonably safe for travel. The law does not say they must be safe, and thus insure the pedestrian. To say that the city must keep its sidewalks reasonably *483safe, and that the pedestrian may assume that such duty has been performed, does not mean that the pedestrian may walk thereon studying the stars, or blinded as a bat. Reasonably safe means that such walks can be used by a person in the exercise of ordinary and usual care. It means that whilst they are not absolutely safe, yet the pedestrian can use them with safety to himself, if he uses ordinary and usual care for his own safety. As stated above the pedestrian cannot be engaged in the study of astronomy and blindly fall into a ditch when the light of day, or its substitute, arc lights at night, would show the danger if such there was. Nor does it mean that the pedestrian must keep his eyes riveted upon the sidewalk at each step of his progress. Ordinarily prudent and careful persons do neither. Such persons are not star-gazing nor are they guarding each individual step they take. They do, however, use their senses to see that they do not encounter danger, and this without considering that they may assume that the city has fully performed its duty.
"We are of the opinion that these several instructions properly declare the law upon this point, but believe that the ease should be certified to the Court in Banc to the end that there may be no .question as to the rule of law announced by this court. The present status of our opinions on the point cannot be satisfactory to either bench or bar.
II. The next contention is that there was error in giving instruction numbered “3-D,” which reads:
‘‘ The court instructs the jury that the ordinances of Kansas City relating to lights and barriers read in evidence of themselves create no liability in favor of persons injured by their violations as against defendant, Kansas City, and that therefore the failure, if any, on the part of Kansas City, to enforce the ordinances requiring red lights and good and sufficient barriers *484not less than three feet high, to be placed at night upon the excavation in the sidewalk space at the time and place in question was not in itself negligence on the part of the defendant, Kansas City, and that you must only consider the same against the defendant, Kansas City, in conjunction with all the other facts and circumstances in making up your verdict.”
This instruction was given on behalf of the defendant city. It does not include the individual defendant. These ordinances are but police regulations adopted by the city for the purposes of protecting its citizens. A city may be liable for negligence, but is not liable for the mere failure to enforce its own" police regulations.
In Moran v. Pullman Palace Car Co., 134 Mo. l. c. 651, Sherwood, J., said: “In the third place, a city is not liable for damages resulting from a failure to enforce such police regulations as are the ordinances in question. [15 Am. and Eng. Ency. Law, 1154, and note 3, and cases cited.]”
One section of the ordinance discussed in the Moran Case is substantially the ordinance involved here. The doctrine of the Moran Case is approved in the following more recent cases: Harman v. St. Louis, 137 Mo. 494; Loth v. Columbia Theatre Co., 197 Mo. l. c. 358; Mehan v. St. Louis, 217 Mo. 35.
None of these cases are exact parallels of the one at bar, however. In the case at bar, under the testimony of the defendant Harris, which is the only testimony upon the subject, the relationship of contractor and contractee exists. In other words, the city in this case had contracted with Harris to do this work. This, however, we hardly think should change the rule. The ordinances within themselves do not appear to include the city. They appear to be pure police regulations enacted by the city for the guidance of the conduct of the citizen rather than the conduct of the city itself.
The city, having authorized and directed the work, *485may be liable for the failure to have barriers and danger signals, but this would be upon the theory that to fail to have such would be negligence, and would depend upon proof of the question rather than upon the ordinance. As to defendant Harris, proof of the ordinances and proof of a failure to comply therewith, make out a prima facie case of negligence. This instruction does nothing more than to Say, that as against the city, the ordinances themselves do not make a prima facie ease, but may be considered with other facts in determining the question of negligence or no negligence upon the part of the city. This contention of plaintiff should be disallowed upon the law.
But there is another matter which forces the dis-allowance of plaintiff’s contention. Plaintiffs below adopted the theory of the law just above announced. She by her instruction “1-P” tells the jury that if there was a failure to comply with these ordinances, and the plaintiff was injured by reason of such failure, the same would be negligence as to defendant Harris and he would be liable. By her instruction “2-P” the case is put to the jury upon the theory that if there was a failure to put up barriers and lights, and that an ordinarily careful and prudent person would have used such precautions, then both defendants were negligent, and if plaintiff’s injury was due to such negligence she could recover as against both defendants. From this it appears that she adopted this theory of the law below, and the instruction given for defendant city, last above set out, is in line with the theory that plaintiff had in the trial nisi. Plaintiff can’t shift positions in this court. It is true that the motion for a new trial suggests that the court erred in modifying the two instructions of the plaintiff above mentioned, but the record elsewhere fails to so show. The record simply says, “And thereupon the following instructions were given for the plaintiff.” Following this, are the two instructions discussed, and a third one which re*486lates solely to the measure of damages. So that upon this theory we would not he in position to condemn the lower court for giving an instruction for the defendant which accorded with the theory of the case pressed upon the court by-the plaintiff.
The question discussed in paragraph one, and the one herein discussed, are the only ones seriously urged by counsel. If we are right in the conclusions reached in paragraph one, and we think we are, this case should be affirmed. Yet, we are of opinion that there is a conflict between our own cases upon the question discussed in paragraph one, and for that reason this 'cause should be certified to the Court in Banc for final ■determination. It is therefore ordered that the cause be certified to the Court In Banc.
All concur upon the question that this cause should be certified to the Court in Banc.
IN BANC.
GRAVES, J.The foregoing opinion in Division One is adopted as the opinion of the Court in Banc.
Ferriss, J., concurs; Lamm, J., concurs in separate opinion filed; Brown, J., concurs in result; Woodson and Kennish, JJ., dissent in opinion to be filed; Valliant, G. J., absent.