ON MOTION DOR REHEARING.
Biggs, J.A re-examination of the questions involved in this case has confirmed us in the correctness of our opinion.
We stated that the rule in this state was, that persons traveling on the streets or public highways must, in approaching the crossing of a steam railroad, look and listen for cars. We also stated that this was conceded by the plaintiff’s counsel. We certainly so understood him on the argument. But he assures us that we were mistaken in this, and he vigorously protests against being placed in a false position “before the bar of Missouri.” We cheerfully make the correction, but, in spite of our mistake, we are still of the opinion that we stated the general rule correctly. Kennayde v. Railroad, 45 Mo. 255; Tabor v. Railroad, 46 Mo. 353; Zimmerman v. Railroad, 71 Mo. 476; Langan v. Railroad, *755 Mo. App. 311; s. c., 72 Mo. 392; Petty v. Railroad, 88 Mo. 306; Harlan v. Railroad, 64 Mo. 480; s. c., 65 Mo. 22; Fletcher v. Railroad, 64 Mo. 484; Henze v. Railroad, 71 Mo. 636; Drain v. Railroad, 10 Mo. App. 531; s. c., 86 Mo. 574; Lenix v. Railroad, 76 Mo. 86; Stepp v. Railroad, 85 Mo. 229; Moberly v. Railroad, 17 Mo. App. 518; Kelley v. Railroad, 18 Mo. App. 151; Bergman v. Railroad, 88 Mo. 678; s. c., 13 Mo. App. 352; Kimes v. Railroad, 85 Mo. 611; Johnson v. Railroad, 77 Mo. 546; Purl v. Railroad, 72 Mo. 168; Hixson v. Railroad, 80 Mo. 335; Turner v. Railroad, 74 Mo. 602; Taylor v. Railroad, 86 Mo. 457; Huckshold v. Railroad, 90 Mo. 548; Donohoe v. Railroad, 91 Mo. 357; Yancey v. Railroad, 93 Mo. 433; O’Connor v. Railroad, 94 Mo. 150; Butts v. Railroad, 98 Mo. 272; Moberly v. Railroad, 98 Mo. 183. There are exceptions to all general rules of law, and there might be such a state of facts as to lead the courts in a given casé to disregard the one stated. But as the facts disclosed in the present action showed that'the driver of the horse lived near California avenue ; that he knew that an electric railway was constructed on that street, and it was then in operation; that there was nothing to prevent him from hearing a bell on the car, if one had been rung; and that his horse’s head was ten or twelve feet from the railroad track when he arrived at a point where he had an unobstructed view ; we deemed it unnecessary f and still think so) to discuss the modifications, in some decisions, of the rule stated in all the cases above cited.
The views of the plaintiff’s counsel concerning the functions of an appellate court are quite peculiar. It is perhaps to this, that the extreme “heat ”, which is manifested in his printed argument, is to be attributed. He seems to think that we decided, as matters of fact, that the bell was rung, and that the driver, after he arrived at a place where he had an unobstructed view of the track, could have stopped the horse in time to have prevented the accident. We merely decided that there was *76evidence that the bell was rung; that there was some evidence tending to prove the other fact; and that it followed that the refusal of the defendant’s instruction was prejudicial. It was not necessary for us to state the opposing evidence.
The case stands this way for retrial: If the persons in charge of the car were running it at a rate of speed greater than provided by ordinance, or if they failed to ring the bell when approaching the crossing of Keokuk street, then they were guilty of negligence, and the defendant must answer for all resulting injuries to plaintiff’s property, unless the driver of the horse was guilty of contributory negligence ; that is, failed to listen and look for the approaching car before attempting to cross the track, when by so doing the accident could have been avoided. And even though the driver was thus guilty of contributory negligence, yet the defendant would .still be liable, if the persons in charge of the car saw, or by the exercise of ordinary diligence could have seen, the perilous position of the plaintiff’s property in time to have avoided the injury to it. This is the practical effect of our decision, and we do not think that it is so far-reaching in its effects as “to give to the defendant the right of California avenue in preference to the citizens of the city,” as stated in the motion for rehearing. The fears of the plaintiff’s counsel in this respect are groundless.
There is a technical objection to the defendant’s first instruction, which'the court refused, which ought to be remedied on a retrial. It does not contain the modification that the defendant would in any event be liable, if its servants s^w, or by the exercise of reasonable vigilance could have seen, the horse and buggy in time to have prevented the collision. The recent decisions of the supreme court seem to hold that an omission of this kind is not reversible error or good ground for refusing an instruction, where the other instructions contain *77the necessary qualification. We think, however, that where an instruction purports to cover the whole case, it would be better if it stated the whole law.
The motion for rehearing will be denied.
All concur.