(after stating the facts as above.) — The appellant urges that respondent was guilty of contributory negligence forbidding his recovery in failing to look back from time to time while he was driving on its track, or in not driving directly from the track when he discovered the approach of the ear behind him. The testimony for plaintiff tends to establish that upon entering Spring avenue from the west no car north or south bound was in sight and that he had driven a considerable distance before he was apprised of the approach of the car from the south, which was then about 150 feet behind him; that he looked back sideways, also saw a south-bound car approaching at a high rate of speed upon the western track and that the eastern portion of the roadway was obstructed and to get by the obstruct] on he whipped his horse to its greatest speed at which rate it was moving when struck by the rear car.
"Whether contributory negligence was under such conditions imputable to plaintiff, was at most a question for the jury. Even had he failed to look back, the purpose of such retrospection was fully accomplished by the forewarning of the rear car’s rapid approach by the noise attending its movements. The mere driving upon the defendant’s tracks at night was not alone such contributory negligence as would defeat his recovery. Klockenbrink v. Railroad, 172 Mo. 678. The imminent danger was upon him, and assuming, as he rightly might, that the ear in his rear was being operated in •obedience, and not in violation of the ordinance govern*196ing its rate of speed, and with the south-bound car nearing him at a rapid rate, without time for calm deliberation, impelled by the natural instinct of self-preservation, he might justly conclude that his best chance, if not his only hope, of escape was by urging his horse to greatest speed, pass the bloeked-up part of the roadway and turn off into the unobstructed roadway east of the railway track. In any aspect the question whether, in view of the grave perils confronting him, he adopted the course of a man of ordinary prudence, was properly submitted to the jury. Donohue v. Railway, 91 Mo. 357; Kleiber v. Railway, 107 Mo. 240.
2. The third instruction of plaintiff was as follows :
“The court instructs the jury that if they believe from all the evidence that the agents or servants of the defendant corporation at the time of the injuries to plaintiff, carelessly and negligently ran said car or cars upon plaintiff’s team, and that by the exercise of ordinary care they could have avoided doing so, and that such negligence and not negligence on the part of the plaintiff was the cause of the injuries to plaintiff, they should find for the plaintiff. ”
This is assailed as being too general, and sanctioning a finding for plaintiff, if the jury found any neg'ligent conduct in the operation of the cars, whether or not reliance for recovery had been placed by the petition on such acts. Were this conceded for argument’s sake but not otherwise, the jury, both by defendant’s instructions, as well as by those on behalf of plaintiff, were charged to restrict plaintiff’s recovery to the negligence specifically pleaded, and considering the instructions together, while such general instructions should usually be avoided, we do not consider in this case that the giving of the above instruction in such comprehensive language justifies a reversal.
3. The fourth instruction for plaintiff defining the elements of his possible recovery was as follows:
*197“4. In assessing damages to plaintiff, should the jury decide that he is entitled to any, the jury should take into consideration the damage to his horse and cart, the pain and suffering undergone by plaintiff, his loss of time and injuries that he sustained to his physical and nervous system, if any, and if the jury find that plaintiff is entitled to damages, they should take into consideration the permanency of his injuries, if they find from the evidence his injuries are permanent, and.give him such damages as they may believe from the evidence will fairly compensate him for the injuries sustained, not to exceed the sum of $15,000. ’ ’
The petition contained allegations of general damages, and error is assigned by reason of this instruction permitting recovery for loss of time without any foundation therefor in the pleading; but it is sufficient to indicate that at the trial, defendant failed to make objection to the testimony elicited, tending to show plaintiff’s earning capacity, and the trial court was' therefore authorized to assume such objection waived, and to give an instruction based on evidence, the admission of which it might rightfully presume was with the tacit consent of appellant.
Judgment affirmed.
Bland, P. Jand Goode, J., concur.