SEPARATE CONCURRING OPINION.
LAMM, J.I agree to the first paragraph and to the result reached by my learned brother Woodson. but not to the doctrine that a case under the humanity rule and one for “common-law negligence” are inconsistent or cannot be stated in one count of a petition.
It is deemed best to state the grounds of concurrence and dissent.
In the Murphy Case, 228 Mo. l. c. 123, it was said *645that a plaintiff “must plead his. own negligence in order to invoke this doctrine” — meaning thereby the humanity doctrine — and the Krehmeyer Case, 220 Mo. l. c. 659, was cited as authority for that'proposition. But the proposition announced in the Murphy Case was a blow leveled, arguendo, at the very life of the humanity rule in the minority opinion of my learned brother. It was not intended as in aid of the rule, nor was it intended as a formulation of the scope of the rule in its entirety as announced by this court.
Recurring to the Krehmeyer Case, what was decided by it (as contradistinguished from what was said in the principal or dissenting opinion) must be sought in the guarded language of the concurring opinion of our brother Graves, who cast the deciding vote as umpire and only agreed to the result on the grounds put by him in his concurrence. The crux of the, Krehmeyer Case was in the instructions, not in the pleadings. Therefore, that case is no authority on pleading. The judgment in the Krehmeyer Case was reversed and the cause remanded as to one. defendant, The Transit Company, because of error in ruling on instructions; and the concurring opinion of Graves, J., may be searched in vain for any pronouncement on the question of commingling in one pleading, or count, ‘‘ common-law negligence ’ ’ and facts constituting a cause of action under the humanity rule. His vote was to the effect that plaintiff’s contributory negligence in that case was so well established that' the jury should have been told he was guilty as a matter of law. Further, that the humanity doctrine should have been put to the jury, and, further, that if the court was “going’ to submit the question of contributory negligence at all,” as it did do, then it should have given defendant’s instruction on that head.
A petition may contain allegations so inconsistent and self-destructive that a motion to elect lies. [Jordan v. Transit Co., 202 Mo. 418; Behen v. Railroad, *646186 Mo. 430; White v. Railroad, 202 Mo. l. c. 557, et seq.] But to plead common law and statutory negligence and negligence predicated of the violation of an ordinance, and negligence arising from the last chance or humanity doctrine in one count, does not necessarily make a case of felo de se. See the White Case, supra, and authorities cited.
The contrary argument may he summed up in this way:
The humanity doctrine runs on the theory that plaintiff is negligent, hut avoids the effect of his negligence by showing conditions bringing his case within the humanity rule. Therefore, there is such irreconcilable inconsistency between a cause of action based on the latter theory and one based on the theory that plaintiff was not negligent at all, that the two cannot stand together in the same count. But I can see no inconsistency at all in A saying to B, “You were negligent and I was not negligent; you hurt me, therefore I want damages; hut if I were negligent, yet you saw my peril (or in certain cases where you owed a duty to look for me, you should have seen my peril), therefore, you are still liable to me for damages.” There is no more inconsistency there than there is in A saying to B, “I signed no note to you, hut if I did, I paid it off;” yet that was held a good plea. It is believed cases have always been disposed of in this court on the theory that it is good pleading to plead the wrong suffered (that is, the injuria) and then assign as many specifications of negligence as the pleader has — subject always to a motion to elect if they are inconsistent, and subject to a motion in arrest or for a new trial if a general verdict come in on two radically inconsistent grounds.
A fair test of a matter is to put the shoe on the other foot, or see if the other ox is gored. Attending to that: If defendant deny (as this very defendant did) its own negligence and then plead (as it also did) plain*647tiff’s contributory negligence, shall we also hold that the plea of contributory negligence is bad when coupled with such denial, or that when contributory negligence is pleaded by defendant coupled with a denial of negligence, that those two pleas are inconsistent and cannot stand together? Observe, contributory negligence on the part of plaintiff, ex vi termini, assumes there was negligence on the part of defendant to which plaintiff’s negligence contributed. Therefore, in one sense, although defendant deny its own negligence; yet when it pleads the contributory negligence of plaintiff, it thereby faces the other way and confesses its own negligence. Therefore, if a petition be bad which says plaintiff used due care and then, as another ground of recovery, goes on to state a case under the humanity rule (which proceeds on the theory he may have not used due care) — we say, if such petition be bad for inconsistency, then an answer by the same token is bad when defendant says it used due care and then goes on to say that plaintiff was guilty of contributory negligence. That phase of the matter was considered in the Peterson Case, 211 Mo. l. c. 518. And it was there pointed out that such construction of the stereotyped answer in negligence cases would be novel and perplexing.
I put concurrence on the ground that this plaintiff concedes by brief, and ore tenus at our bar, that his case is not under the humanity rule. When we consider his pleading from the standpoint of “common law negligence,” to use that term as my brother does, it is clear that he places his right to recover on the theory that while he was at work on the trestle he owed no duty to himself to look out for himself, but had a right to rely on the trainmen looking out for him and giving crossing signal at the near-by crossing. He states his cause of action to be a violation of that duty and his own reliance on the performance of'that duty. There is no general rule of law raising such general *648duty. There might be a case on a long and high trestle where trackmen would be caught in the daytime verily as rats in a trap, where as a matter of humanity and common sense a duty was put on trainmen to look out for them. We can decide such a case when we have it.' . There might be other cases as stated by my brother, where a rule, order or custom obtained to look out for trackmen, working in a hazardous place. Then there is a class of cases where trackmen are seen to be in danger, and seen to be oblivions to it, where an imperative duty arises to warn and if possible stop before running them down (when certain conditions are present). But the case at bar is not a case of any such character. It is one in which the plaintiff says he took no heed for himself at all and the reason he took no heed was that he counted on trainmen looking out for him and he relied on their giving a crossing signal. Now, the crossing signal is not intended for trackmen but for those using the crossing. [Degonia v. Railroad, 224 Mo. l. c. 592, et seq.] A general duty to run a train without negligence becomes a particular duty to no one until he is in a position to complain of the negligence. [Frye v. Railroad, 200. Mo. l. c. 407; Barker v. Railroad, 98 Mo. 54.]
It is quite universally held that on a steam railroad .in the country, away from congested populations and between crossings, there is no general duty to look out for persons on the track and therefore (as a general rule) negligence cannot be predicated of mere failure to look. It arises, if at all, from a failure to act or warn after the peril is seen.
The pleading does not bring the case within that doctrine, and therefore, did not state a cause of action.