DISSENTING OPINION.
GRANES, J.I do not concur in the majority opinion in this case for a number of reasons. First, I think the facts are too scantily stated, and I shall therefore restate the case.
Plaintiff’s husband was a police officer in the city of St. Louis. Pie was struck and killed by one of defendant’s street cars, and this is an action to recover the penalty prescribed by section 2864, Revised Statutes 1899. Upon a trial before a jury plaintiff obtained a verdict for the penalty of $5000, and from a judgment rendered thereon the defendant áppealed to this court.
The collision which resulted in the death of Henry M. Wilson, husband of plaintiff, occurred about 1:30 a. m., November 2,1902. The negligence counted upon in the petition is thus stated in three separate paragraphs :
‘ ‘ And the plaintiff avers that at the time her husband was so struck and injured, defendant’s servants were running said car at a high and reckless speed around «aid curve, without using any care to keep a vigilant watch for persons on foot, moving towards and on said track, and in danger of being struck and injured by said car, and without using any care to stop or control the movement of said car, and to avert *77injury to plaintiff’s husband, and without giving any warning by bell or otherwise of the approach of said ear to said crossing, which acts of negligence and each of them directly contributed to cause the injury and death of the plaintiff’s husband.
“And for another and further assignment of negligence, the plaintiff avers that at the time of injury of her husband, there was in force an ordinance of the city of St. Louis whereby it was provided that motormen and conductors of street cars should keep a vigilant watch for persons on foot, either on the track or moving towards it, and on the first appearance of danger to such person the car should be stopped within the shortest time and space possible, yet the plaintiff avers that at the time of the injury to her husband the defendant’s motorman and conductor in charge of said car, failed to keep such vigilant watch and failed to stop said car within the shortest time and space possible upon the first appearance of danger to plaintiff’s husband, which violation of said ordinance directly contributed to cause the injury and death of plaintiff’s husband.
“And for another assignment of negligence the plaintiff avers that by said ordinance it was provided that street cars should not run within the city of St. Louis at a greater speed than eight miles per hour. Yet the plaintiff avers that at the time of the injury to her husband, defendant’s motorman and conductor in charge of said ear were running said car in excess of a speed of eight miles per hour, to-wit, about fifteen to twenty miles an hour, in violation of said ordinance of the city of St. Louis, which violation of said ordinance directly contributed to cause the injury and death of the plaintiff’s husband. Said ordinance being-section 1760 of the Revised Ordinances of the city of St. Louis, subdivisions 4 and 10, that by the death of her husband, as aforesaid, an action has accrued to the plaintiff to sue for and recover the sum of five thou*78sand dollars, according to tlie statute in such cases, for which sum she prays judgment.”
Defendant answered by way of (1) a general de-' nial, and (2) a plea of contributory negligence. Reply was a general denial. Such were the issues made by the pleadings.
The issues were reduced by the instructions for plaintiff to the negligence counted upon in the first paragraph quoted from the petition supra. Upon this question the first instruction, so far as pertinent, reads:
“And if the jury find from the evidence that defendant’s servants in charge of said car caused and suffered it to run ar.ound said curve from Euclid into Laclede avenue at an excessive and negligent speed and thereby caused said car to so strike and injure the plaintiff’s husband;
“And if the jury find from the evidence that defendant’s said servants did not exercise ordinary care in so running said car at such excessive and negligent speed around said curve, if you find from the evidence it was so run, and thereby directly caused said car to strike and injure the plaintiff’s said husband;
“And if the jury believe from the evidence that plaintiff’s husband exercised ordinary care to look and listen for a car and to avoid injury therefrom at the time of his injury, then plaintiff is entitled to re-' cover.”
Upon the question of contributory negligence the plaintiff asked, and the court gave, instruction number 6, which reads:
“The court instructs the jury that if they believe from the evidence that the deceased saw the car mentioned in the evidence when he started to cross the track on which he was struck and did not know, nor, by the exercise of ordinary care in looking and listening for a car, would not have known that the car was running at a speed in excess of the ordinance provis*79ion read in evidence by defendant, then tbe deceased' had a right to rely on said car not being run at a speed in excess of that, allowed by the said ordinance and to proceed to cross the track using ordinary care to look and listen and to avoid danger from the car whilst so doing. ’ ’
Other matters as to instructions to the jury will be considered with the points made. Defendant interposed a demurrer to the evidence, and this calls for a full statement of the facts and surroundings.
THE FACTS.
The accident occurred at the intersection of Euclid and Laclede avenues in the city of St. Louis. Euclid avenue runs north and south, and Laclede avenue east and west. The corners of this intersection on the east side of Eludid avenue were unoccupied, except on the northeast corner was a tree setting back fifty feet.
The defendant operated a double-track street railway upon both of these avenues, and the tracks of course intersected at the intersection of the avenues. There was a switch on the south side of Laclede avenue which permitted cars to pass from the Euclid avenue tracks to the Laclede avenue tracks and vice versa. This switch is described as a short right angle curve. The car which struck deceased was a Chouteau avenue car and at the time was turning into Laclede avenue to go east to the defendant’s ear barn for the night. Another such car had gone before this one for the same purpose, and had left the switch open. Chouteau avenue is some ten blocks south of Laclede avenue, and to get to the ear barns these two cars had come north on Euclid and turned east through this curved switch. Officer Wilson had been stationed in this neighborhood for many months prior to the accident and must have been familiar with the movement of these Chouteau *80avenue cars as they were turned in for the- night through the curved switch aforesaid. Under plaintiff’s evidence a lighted car coming north on Euclid avenue could have been seen three or four blocks south of Laclede avenue. Over the ends of the car in question was a lighted sign “Chouteau,” which could have been seen, but for what distance does not appear in evidence.
Just prior to the accident deceased "Wilson and two fellow officers, O’Neill and Grace, were standing upon the sidewalk at the northeast corner of this street intersection. On the southeast corner of Euclid avenue was a patrol box where these officers went each hour to report- to headquarters. Their report- was due on this occasion at 1:30 a. m. At 1:25 a. m. it was suggested that it was time to report, and officer "Wilson started across from the northeast toward the south? east corner to this patrol box. Eight or ten feet behind him followed officer O’Neill, but officer Grace remained on the sidewalk at the northeast corner. Upon the testimony of officers O’Neill and Grace depends plaintiff’s case. The material portions of O’Neill’s testimony are:
“Q. Go ahead. A. "We started to go across the street to call up, officer Grace was on the north side of the street talking to us; I could not recollect what officer Grace said to me, I stopped to speak to him; as I turned around the car was coming north on Euclid avenue and I said, ‘Look, look, Pete-!’ just like that
. “Q. "Who was Pete? A. Pete Gj-race, officer Grace.
“Q. "What did. you see the car doing? A. Coming around the curve at a high rate of speed. . . .
“Q. You see cars running every day? A. Yes, sir.
“Q. In your opinion, how fast was the car running? A. The way it came around the curve I judge *81it was running twenty or twenty-five miles an hour, I can’t swear that.
“Q. That is yonr opinion! A. My opinion, that is all.
“Q. When the car ran around the curve, from what street did it turn! A. It turned from Euclid in on Laclede.
“Q. As the car ran around and struck him was there any slackening of the speed before it' struck him! A. No, sir. •
• “Q. IIow far across -the track was he when he was struck! A. He was almost in the track, it caught him on the right side, just as he was going across the track.
“Q. What, if anything, did you observe of the trolley at the time, was it off or on! A. When it hit the curve the trolley went off.
“Q. When the car hit the curve the trolley flew off! A. Yes, sir.
“Q. What was the effect on the lights in the car when the trolley went off! A. When I went over to officer Wilson, when he was lying in the street, the car was dark, but it was striking the wires and lighting up every once in a while.
“Q. After the car struck Mr. Wilson, how far, in your opinion, did it run! A. Well, I couldn’t say, I judge it ran two hundred or two hundred and fifty feet, it surely went that distance, two hundred or-two hundred and fifty feet.
‘‘Q. Where did you find Mr. Wilson after he was struck! A. About a foot or two of the curbstone, about ten feet east of the crossing, maybe twelye feet.
“Q. -Ten or twelve feet east of the crossing! A. Ten or twelve feet east of the crossing, and about eighteen inches or two feet of the curbstone. . . .
“Q. Standing where either you or officer Wilson stood and looking south, how far could you have *82seen a lighted ear coming! A. About Audubon avenue.
££Q. How far south is that from Laclede! A. Three or four blocks, T could see it that far.
“Q. Either where you stood or Wilson stood! A. Yes, sir.
££Q. You saw the car coming north there that night! A. I saw it when it came to the curve.
££Q. And you heard it also! A. Yes, sir.
££Q. Now, the car made noise enough to attract your attention, and you were further from it than Wilson! A. Yes, sir.
££Q. Officer Grace heard it! A. I don’t know.
££Q. This car running, as you say, at the rate of twenty miles an hour, struck him and only knocked him six or eight feet. You say the trolley went off when the car struck the curve! A. Yes, sir.
££Q. What effect did that have with reference to noise, don’t it make an unusual noise as it strikes the wire! A. Yes, sir.
££Q. You heard it that night! A. Yes, sir.
££Q. Did it not make an unusual condition, as it left the wire it ivould be dark, and light as it struck the wiref A. Yes, sir.
££Q. It flashed every time it struck the unref A. Yes, sir.
££Q. That would flash the lights on the car¶ A. Yes, sir. . . .
££Q. Who were you hollowing to when you said, £Look, look’! A. Officer Grace.
££Q. He was not in any danger, he was not near the car track, he was not in the street, Wilson was right in the track! A. • I couldn’t tell.
££Q. When you hollowed, £Look, look,’ you hollowed because you saw the car about to strike Wilson! A. No,, when I hollowed 'Look, look,’ I was after speaking to officer Grace. . .
*83“Q. What was the occasion for yon to say ‘Look, look’? A. When I saw the car coming with snch power over the street.
“Q. When you saw and heard it coming? A. Yes, sir.
“Q. You saw and heard it both? A. Yes, sir.
“Q. Yonr exclamation, ‘Look, look,’ was before Wilson was struck? A.- Yes, sir.
“Q. Yon say yon were calling to Grace, not to Wilson? A. Yes, sir.
“Q. Why didn’t yon hollow to Wilson? A. I was hollowing to the man I was speaking to.
“Q. Was yonr back turned? A. Not at the time.
“Q. Yon were looking in the direction of Wilson? A. What did yon say?
“Q. Yon were looking in the direction of officer Wilson? A. I started to follow officer Wilson.
“Q. When yon said, ‘Look, look,’ yon were looking towards officer Wilson? A. Yes, sir.
“Q. Yonr back was to officer Grace? A. Yes, sir.
“Q. Officer Wilson was the man in danger? A. Yes, sir.
“Q. Officer Grace was not in the street, he was upon the sidewalk? A. He was in no danger.'
“Q. Yon were how far away from officer Wilson when yon hollowed, ‘Look, look’ ? A. I made the statement two or three times I thought it was eight or ten feet.
“Q. When yon gave the alarm? A. I think that was the statement.
“ Q. As yon hollowed, ‘Look, look,’ yon were eight or ten feet from officer Wilson? A. Yes, sir.” '
The other man, officer Grace, upon the point in issue testified:
“Q. What did von see Mr; Wilson do before he was struck? A. He was crossing over the tracks to the patrol box to call up.
*84“Q. How far did lie get across the tracks before he was struck! A. The last I saw1 him he was between the north and south tracks, when O’Neill called my attention to the car, said, ‘Look, look, Pete’!
“Q. Between the tracks or between the rails of the south track! A. Between the tracks, the south rail of the track.
“Q. Had you observed the car coming north on Euclid, had you looked at it and seen it! A. Not until O’Neill called my attention to it.
“Q. When he called your attention to it where was the car! A. A little bit south of Laclede avenue, maybe seventy-five feet or so. . . .
“Q. When the car struck the switch and ran into the curve, what effect, if any, did it have on the trolley! A. The trolley jumped off the wire when it struck the switch.
“Q. How was the car when the trolley left the wire as to the light or darkness! A. It was in darkness, it would hit the wire, in and out again. ...
“Q. You were standing on the sidewalk on the northeast.corner, were you! A. Yes, sir.
“Q. Officer O’Neill was about six or eight feet south of you! A. lie was southeast of me.
“Q. Officer Wilson, who was struck by the car, toas ten or twelve feet further south of O’Neill? A. Yes, sir.
“Q. So after officer O’Neill was almost directly between you and officer Wilson? A. Yes, sir.
‘ ‘ Q. Officer Wilson was going south to walk across the two street car tracks! A. Yes, sir . . . .
“Q. Wilson got into the south track, he crossed the north track before the accident! A. When I saw him he was between the north and south tracks.
“Q. He had crossed the north track and was struck on the south track! A. Yes, sir.
“Q. Was he struck right at the corner of Euclid and Laclede! A. He was a little east of the crossing.
*85“Q1. TIow far. A. About two or three feet east.
“Q. When you first saw it it was one hundred feet-south of Laclede? A. About that.
£<Q. You were sixteen feet further north than officer Wilson ? A. About that.
££Q. He was that much nearer to the car than you? A. Yes, sir.
££Q. You saw the car coming down Euclid Avenue one hundred feet away? A. I did when my attention was called to it.
££Q. It was lighted? A. Yes, sir.
££Q. It was lighted all the time until it struck the curve? A. Yes, sir.
££Q. When the car struck the curve, the trolley went off ? A. The car was in darkness.
££Q. I didn’t ask you that? The trolley went off? A. Yes, sir.
££Q. When the trolley goes off what happens with reference to noise? A. It doesn’t make as much noise.
( ££Q. D’oes it make q peculiar noise? A. A peculiar noise.
£ £ Q. It makes a noise every time the trolley strikes, the wire. A. Yes, sir.
££Q. That noise you do not hear when it is on? A. No, sir.
££Q. There was that much more to attract attention that night than usual, the trolley striking the wires?' A. It hit a couple of times.
££Q. What effect does it have on the darkness or light of a car when it strikes the wire? A. It gives out a little flash of light.
££Q. It gives out in the car? A. Yes, sir.
££Q. There is a change from darkness to light? A. Yes, sir.
£ £ Q. There ivas that which ivas unusual to attract attention at that time? A. Yes, sir.
*86“Q. "Where was Wilson when the car hit the curve? A. The last time I saw him he was between the north and south-bound tracks.
! ‘ Q. How far was the lighted car away from Wilson when he was between the north and south-bound tracks ? A. When I saw it it was seventy-five or one hundred feet.
“Q. Seventy-five or one hundred feet south on Euclid? A. Yes, sir.
“Where was the car when you heard officer O’Neill hollow, ‘Look, look’? A. That is where it was.
“Q. You heard the call before Wilson had gone on the south track? A. Yes, sir,
“Q. You heard officer O’Neill say, ‘Look, look’! before he went on the south track? A. Yes, sir.
“Q. When the car was seventy-five or one hundred, feet south on Eticlid? A. Yes, sir.
“Q. Did you see what Wilson did? A. No, sir.
“Q. Officer O’Neill was walking south when he said that? A. He kind of turned and spoke to me.”
The evidence further shows that this switch leaves Euclid Avenue at a point twelve feet south of Laclede Avenue. The evidence does not disclose the width of these streets, except that Euclid Avenue was about as wide as the usual street. It was stated in argument, and undenied, that the streets were sixty feet in width. The evidence also shows that there were gas lights on three of the four corners of this intersection. F'or the plaintiff the evidence shows that the car ran into the curve at a rate of 20' to 25 miles per hour. For the defendant it was shown to have gone into the curve at from 7 to 10 miles per hour, and that had it turned the short curve at a rate faster than ten miles per hour the car would have left the tracks. It was also'made to appear that the tracks were slippery, and that the light on the car was stationary, so that in turning a car on the curve the light would not shine fully upon *87the curved track, hut straight ahead of the end of the car. It appears that both Taylor and Chouteau Avenue cars ran upon the Euclid Avenue tracks. Upon this point an interesting bit of testimony is given by officer 0 ’Neill thus:
‘ ‘ Q. Did you know where the Taylor Avenue cars ran? A. I know they ran north and south on Euclid Avenue.
“Q. Did they turn east on Laclede? A. No, sir.
“Q. They ran north and south all the way? A. Yes, sir.
“Q. Ran as far as Delmar north? A. Yes, sir.
“Q. Where did they come on Euclid south? A. I don’t know.
“Q. They passed that corner and did not turn east? A. No, sir.
“Q. Where did the Chouteau Avenue cars runf A. The Chouteau Avenue cars were turning in ait the Laclede avenue shed.
“Q. Where did they take Laclede Avenue? A. At Laclede and Euclid.”
Other matters of evidence and instructions may be noted later, if shown material. This fairly states the case.
OPINION.
To my mind the trial court erred in not directing a verdict for the defendant, as it was requested to do.. We must not lose sight of the surroundings, both physical and otherwise. Deceased for a long time had been familiar with the movement of defendant’s cars at this point.- The two officers who testified for the plaintiff had not seen service at the point of the accident as long as had deceased. Things with which they were familiar, deceased must have been familiar with. If so, then what did deceased know? He knew that Taylor Avenue cars were not deflected át Laclede Ave*88nue, but ran straight north and south on Euclid Avenue. He knew that Chouteau Avenue cars did not run on north, bnt were deflected to Laclede Avenue at certain hours of the night, to be housed at the car barns on that street. He knew that a coming car could be seen at least three blocks off, and not only that, but he knew that the lighted sign “Chouteau” or “Taylor” could be seen. If he saw the sign “Chouteau,” he knew that the car bearing it would’not’go-north, but would be run in over this curved switch to be placed in the car barn. When he saw that sign he knew it was a car being retired for the night, because such cars did not run on Euclid Avenue, save for this purpose. His fellow officers knew these facts, and what they know he must have known. [Higgins v. Railroad, 197 Mo. l. c. 317.]
Going a step further, it appears that these two fellow officers knew that when a trolley left the wire a peculiar and unusual noise was made. This deceased must have known. They say that this occurred upon this occasion, and further that it occurred whilst deceased was in the space between the two railway tracks — a place of safety. Attention upon the part of deceased would have given him full knowledge, and this too, while yet in a place of safety. G-rant it that the car was first dark and then light by reason of the trolley leaving and then retouching the wire, yet there were these street lights by which a car could have been seen. "We can not presume that the deceased was in the exercise of ordinary care in the face of the facts detailed in evidence. In the Higgins Case, supra, upon the question of presumptions, we>said:
“Presumptions, however, vanish upon the appearance of testimony and upon the appearance of facts and circumstances-which would show that the presumptions ought not to be indulged. The basic presumption in this case is that deceased exercised due care for his own safety before attempting to cross the track, by *89looking and listening. Should this presumption he indulged in the light of the testimony? In other words, had he looked, could he not have seen the car as did the witnesses? Had he listened, couldn’t he have heard the coming car? There are no circumstances showing any obstructions to the view save and except the darkness of a November evening at 6:20 p. m., described in plaintiff’s petition as ‘nightfall fast settling down upon the highways. ’ There is nothing in the evidence tending to show any obstacle as to his hearing the approaching car, save and except the movement of his own wagon. The evidence shows a light at Fifteenth Street and one at Sixteenth Street, the one about 300 feet and the other about 130 feet from the place of accident. It is true that the character of these lights is not shown by the record, a thing which ought to have been shown, not only for the enlightenment of the jury, but. for the enlightenment of this court. Under these facts we are inclined to the view that the contributory negligence of the deceased is sufficient to defeat this action. The. demurrer to the evidence should have been sustained.”
So in the case at bar, there is direct testimony, as well as a multitude of circumstances, showing the negligence of deceased. To have looked would have been to have seen this approaching car before it reached the switch, which switch was but twelve feet south of Laclede Avenue. To have looked would have been to have seen the lighted sign “Chouteau,” which would have indicated that the car was one coming in on this switch. To have listened, as did his fellow-officers, would have been to have heard the peculiar sound made by the jumping trolley pole.
Not only so, but had he looked he could have seen and known the speed of the car, as did his fellow-officers. It will not do to say that he was in a worse position to see it. The corners of this intersection were vacant. Deceased, it is true, was a few feet ahead of *90O’Neill, but as to a ear coming up Euclid Avenue, he, by reason of this fact, would be a little more to the side of the car than would be O’Neill. If you take the pains to make a diagram of the situation as disclosed by this evidence, it will be perfectly apparent that this is true. In drawing such diagram yon must remember that the evidence discloses that these three men were practically in a straight line, with deceased on the south end of the line, O’Neill eight or ten feet to the north of deceased, and Grace in the same line, but stationary on the sidewalk. Tou must also remember that under this evidence the line mentioned was slightly to the east side of Euclid Avenue. So that when a diagram of this situation is drawn, it will be perfectly clear that Wilson was in a better position to determine the speed of the approaching car than were the two officers testifying. He had as much or more experience, and if they knew the speed, he knew the speed. If they heard the peculiar sound, he heard it, or in the exercise of ordinary care he could have heard it.- If they saw the excessive speed, he, if in the exercise of ordinary care, likewise saw it.
It is not to be presumed that he intentionally walked into a death trap-, but it is clear that he negligently so walked. Had deceased given attention to the things surrounding him, he would have heard the exclamation of officer O’Neill, and this was when he was in a place of safety. Officer Grace heard it, and was in no better position to hear than was deceased.
It will not do to say that deceased relied upon it being a car going north on Euclid Avenue. • He knew that at that time of night cars would be going in both directions. He knew that he could tell the direction by a single glance at the illuminated sign thereon. Before going upon the fatal tracks it was his duty to have looked and listened. The evidence and facts and circumstances for the plaintiff clearly show that he did *91neither. The case is one of fact rather than of law. The law of such a ease is well settled.
Granting all the negligence charged to the defendant, yet the concurring contributory negligence of deceased bars plaintiff’s action.' The case does not invoke the humanitarian rule.
To my mind this is the clearest case of contributory negligence to be found in the books. That the exact facts of the case might appear I have quoted more of the evidence than should have been done, but my firm conviction of the injustice of this judgment is the excuse therefor. To my judgment there is error in one or two of plaintiff’s instructions, but with the views we entertain there is no need for a discussion of these matters.
The judgment should be reversed.
Woodson, and Ferriss, JJ., concur in these views, Woodson, J., in a separate opinion filed, in which Graves and Ferriss, JJ., concur.