SEPARATE CONCURRING OPINION.
LAMM, J.This case, pending nearly as long as the Creeks besieged Troy, has a checkered and singular history. There were two trials below. Coming here on appeal, it was submitted in Division One. That Division split in twain and the case came to Banc. Argued and submitted there, it remained either in gremio legis ox sub judice for a long season, and was finally set down for another hearing and again argued in Banc. At one time or another so much has been written on it, that the writing fever, the furor.seribendi, seems out of place. Nevertheless, as I vote for affirmance, I shall shortly give my reasons for a concurrence in the opinion of Chief Justice Valliant.
The record is not voluminous, but radically divergent views are taken of the probative force of the testimony. It goes without saying that on a demurrer to the evidence (which is the main and controlling contention of learned counsel for defendant), defendant’s contradictory testimony fills no office at all. If the case is to break on demurrer, it is because plaintiff’s testimony is wholly insufficient to carry it to the jury. That insufficiency is said to exist because decedent was guilty of contributory negligence as a matter of law. What I have to say goes to that point.
The argument advanced to support the demurrer runs on the theory that .while the situation was confused, viz., it was in the dead of the night, there was a curve at which the car killing officer Wilson, suddenly darkened, at a great burst of speed took another direction through an open switch, yet that the testimony also conclusively shows that he must be held to know (as a matter of law) of the existence of the open switch and curve; that he must be held to know (also *69as a matter of law) that Chouteau, cars at that time of .night — 1:30 a." m. — ran on Euclid avenue to turn into the switch on Laclede avenue to go to the barn; that he must be held to know (also as a matter of law) of the negligent speed. On these several assumptions, it is argued that when he crossed the track on'Laclede avenue at the time and place he did, he negligently assumed the obvious danger of being instantly run down and killed, such act of negligence on his part directly contributing to his -death.
It is well to say at this point that we approach that argument with the implied concession that defendant ran its darkened car at a dead hour of the night at a reckless and negligent rate of speed through an open switch and around a sharp curve. There is another implied concession that must stand under this record, viz., that if the car had been running at non-negligent speed the officer would not have’ been done to death. "We say implied concessions, but it would be more accurate to say that plaintiff’s proofs show so much.
Those two concessions, or facts, mean that defendant’s negligence is proved and that the causal connection between that negligence and the officer’s death is also proved, thus reducing disputable matter to the narrow question: Can we hold, as • a matter of law, that the officer was negligent; and, if so, did that negligence contribute to his own death®
I shall proceed on the assumption that if in law the officer was negligent, then it follows under the facts of this record that his negligence contributed to his injury, and plaintiff, his widow, must be cast. That assumption leaves the negligence of the officer the single and blunt question to judicially determine.
In determining that issue we must be quickened by several precepts. In the first place, so natural and strong is the love of life that a man is presumed to use due care to preserve his life, until the contrary *70appears. That presumption, springing from nature, finds voice in our jurisprudence in the rule that contributory negligence is a matter of affirmative defense and the burden is upon defendant to show'it. In this case, the presumption of due care in the dead man must obtain on demurrer unless the undisputed evidence shows facts successfully rebutting the presumption. In the second place, if on the evidence two opinions about the officer’s negligence can be fairly entertained by fair average man, then the question of negligence is lifted over- from matter of law to be decided by the court, to matter of fact to be decided by the jury, and with which the court has not a particle of concern. It is in the light of those cardinal precepts, that I conclude the question was for the jury — because:
It was a rainy November night and sounds were somewhat deadened. Plaintiff’s evidence was to the effect that the car was not heard until the time, or shortly before, it took the switch. Two brother officers were with decedent and neither of them testify that they noticed the electric sign “ Chouteau” on the ear before it took the switch and curve. If it be assumed that sign was present, alive and going, until the car became darkened by the trolley pole jumping the trolley wire, yet there is no evidence from which we can determine how large was the sign or how bright, or how far away it could be seen and read, a vital matter; for aside from that sign there was nothing telling an onlooker that the car was not one of those that ran usually straight north and south on Euclid avenue without turning east through the sharp curve on Laclede. To assume, as counsel seem to do in argument, that officer Wilson must be held to look and by looking be held to know the car was, a Chouteau avenue car, which had no business on Euclid at that time of night except to turn east at. the intersection of Euclid and Laclede, is but explaining the unknown by something more unknown — a fallacy in argumentation. It is per*71missible to argue that one should recognize a Hercules from the foot (ex pede Hercidem), or the lion by his claw (ex imgue leonem), that is, the whole from a specimen or part. But in that character of argument the foot or the claw must at least be present.
Again some stress is put on the presence of gas light. 'There were gas posts and. gas light at three corners of the intersection of Euclid and Laclede — one of them, the corner where the patrol box was. the southeast. But it is a well-known fact that gas burns dimly, then brightly at spells, and that the atmosphere has much to do with the radiation of gas street-lamps. So, in a car attracting attention to itself through a brilliant going electric light, when that light suddenly goes out the eye must readjust itself to the dim gas light in order to catch its outline, speed and direction — the latter where there are straight tracks and switches as here. On this record I am not willing to say as a matter of law that on the electric light suddénly quitting a man located where officer Wilson was should be held to judge instantly and accurately of all those things. That would put him in hard lines indeed. Especially so, in the absence of evidence as to the character of the light thrown by the gas lamps in the weather conditions. In this connection, it is also argued, that when the trolley pole jumped the wire there were spits and flashes of light because of the trolley’s coming by fits and starts in contact with the live trolley wire. I have read the testimony painstakingly to see what the record discloses in that regard. One of the officers says the trolley struck the wire two or three times and emitted flashes of light. - But there is no conclusive testimony, as I read it, that those flashes were at the time the car was rounding the curve, or before the car struck the officer. It is sensible to conclude that, till the car fully rounded the curve and got its direction, the loose trolley would swing clear of the wire and be more likely to come in contact with it at *72spells after the car was going straight east on Laclede in line with the wire. But be that one way or the other, this record does not show that the gas light was sufficient, taken with the fitful spits of light from the trolley, to show the officer the tracks and his danger from the car in time to save himself from a car running’ wild.
Doubtless, officer 'Wilson knew of the existence of the switch and curve, but that notice was not sufficient under this record to charge him with negligence. It was the open switch, the reckless speed, the darkness, the instantaneous change in the direction of the car, all united, that led to his undoing. There is no testimony as I read the record that he knew this switch was open or had any call to know it was open. A Chouteau avenue car had turned in shortly before and left the switch open, but there is no testimony that this unfortunate officer knew of that fact. Doubtless, he knew that cars usually took curves and switches slowly and with caution. And in the line of his duty in undertaking to cross the east-and-wést tracks, on Laclede (even if we assume that he had notice of Chouteau cars making the turn there at that time of night), yet might not a careful officer in the nighttime, acting with pru-' deuce, assume that the rate of speed would not be excessively high on such assumption1? We think so. But there is another fact, and that is there is strong inferential testimony from at least one of his brother officers that Wilson was not familiar with the' running arrangement of Chouteau cars at 1:30 a. m. at that point. There is a day watch and a night watch for policemen. The day watch extends from 11 a. m. until about 11 p. m., then the night watchman comes on the beat, the night watch lasting until 11 a. m. the next day. This was the, first night officer Wilson had ever been on the “night watch” at that point, so far as disclosed. But if there was contradiction on that fact it was still for the jury.
*73Officer Grace, a witness for plaintiff, on cross-examination testified as follows: “Q. Where would you walk each night when you started on your beat? A. That is the first night that officer Wilson walked that beat on the night watch.
“Q. You mean by the night watch beginning at 11 o’clock at night and walking until 11 the next day? A. Yes, sir.
‘ ‘ Q. He had walked at night two or three years ? A. Not there, up till half past eleven, I said.”
The significance of that testimony is at once apparent when we consider that the record discloses that in the November of-the accident Chouteau avenue cars along about 1:30 a. m. ran down Euclid avenue to Laclede and there turned east to the barn. That particular phenomenon occurred after midnight, that is, during the “night watch,” as I see it, and this fatal night according to Grace was the first night officer Wilson was on the “night watch” at that point. In the presence of such testimony, we would not be justified in saying, as a matter of law, that the officer knew or was presumed to know that a car running straight north and south at 1:30 a. m. (apparently in use on Euclid avenue) would plunge through' an open switch and catch him as he was going' across Laclede tracks to the patrol box.
But it is argued that if the speed’ of the car was negligently excessive, yet the dead officer must be held to have notice of that speed and should have governed himself accordingly. This notice is got at by reasoning. Thus, it is said that officers Grace and O’Neill saw the great speed and testified to it, and therefore officer Wilson must have seen what they saw. True it is, those officers testified to the great speed and that they saw it. But it must be remembered they saw other things the dead officer never saw. For instance, they not only saw this car turn that curve and throw its trolley, which officer Wilson might *74have seen, but after it struck Wilson they saw it run, say from 150 to 200 feet, and this great distance, joined with what they saw before and at the time it struck the officer, could well furnish the data on which they (not he) estimated the speed. Moreover, they were safe and he was in deadly peril and not so well capable of judging speed, nor were they located with reference to this car precisely as he. They had more of a cross view than he had.
There is a bit of evidence upon which significance is put by counsel to the effect that officer O’Neill made an exclamation to officer Grace — “Look, Look, Pete!” It is argued that if Grace heard the exclamation, Wilson heard and .was forewarned. There are some discrepancies in the record as to the position of officer O’Neill at the time he made this exclamation. Some of the testimony puts him ten or twelve feet from Wilson and not so far from Grace. Some of it puts him facing Wilson and not Grace. But there is some testimony that his face was turned at the time towards officer Grace and not towards Wilson. Officer Grace was asked on cross-examination this question: “Q. Officer O’Neill was walking south when he said that?” To that, Grace replied: “A. He kind of turned and spoke to me.” Then this: “Q. When he said, Look! Look! his back was towards you? A. No, sir.” Obviously, the exclamation was not directed to Wilson. Obviously, too, if he heard it, he misunderstood it.
.Considering the confused situation, the state of the light, the time of night, the open switch, the negligent speed, the darkened car (a car darkened by the trolley 'jumping the wire — which jump, in turn, came about presumptively from the negligent speed); we say, considering those things and the further fact that the officer was in the line of his duty at the time and presumptively in the exercise of due care, I am unwilling to say that negligence on his part was so clearly established as to be declared as a matter of law. It *75was for the jury. There the court below left it, and the jury had substantial evidence upon which to find that he was not, and that defendant was, negligent; further, that Wilson was killed thereby.
On such premises, I concur with the views of the Chief Justice and vote for affirmance.
Kennish, J., concurs in this concurrence.