(after stating the facts). — 1. We think the plaintiff’s evidence tends to prove some of the specific acts of negligence charged in the petition and that the case was one for the jury, unless plaintiff, by his own evidence, convicts himself of negligence that contributed to his injury. In Gettys v. Transit Co., 103 Mo. 564, 78 S. W. 82, the plaintiff deliberately and advisedly placed herself in a position which made a collision with a street car imminent and retained that position until a collision took place, without making any effort to shun it. It was held that in these circumstances plaintiff could not recover, on the ground that the motorman in charge of the colliding car was guilty of negligence in failing to observe the vigilant watch ordinance, for the reason plaintiff’s contributory negligence barred a recovery. In Moore v. Railroad, 176 Mo. 528, 75 S. W. 672, and Zumalt v. Railroad, 175 Mo. 288, *7474 S. W. 1015, it was held that contributory negligence in a personal injury case, where it is proven, is a bar to plaintiff’s recovery. This has always been the law in this State and has never been departed from, save in a few exceptional cases where the defense of contributory negligence was seemingly overlooked. If plaintiff, by driving on the west track, was guilty of negligence, he ' can not recover, for undoubtedly turning off the east track and driving on the west one contributed to his injury. He testified that he did not see the car until it was close upon him, too close for him to drive off the track in time to avoid the collision. The evidence shows that there was a curve in the street from one hundred and fifty to two hundred feet north of the point of collision that prevented a car north of or in the curve from being seen by plaintiff. The plaintiff’s evidence shows that before turning to the west, he looked north to see if a car was coming over the west track and that none was in sight. He could see as far as the curve and on account of the car in his rear, to use his own language, “coming too fast for him,” he turned to the west to get out of the way of the north-bound car. Plaintiff’s witnesses, who were on the ground and saw the accident, testified that the southbound car did not come in view until it was within one hundred and fifty feet of plaintiff and not until after plaintiff was turning on the west track. Plaintiff’s evidence shows that if he had driven ten to fifteen feet farther on the north track, he would have passed the line of wagons standing on the east side óf the track and could then have turned to the-east and driven off the track in perfect safety. For the reason he did not choose this way to get off the track, it is contended he was guilty of negligence. Negligence is the omission to exercise such care as an ordinarily prudent man would exercise in the same or like circumstances. To choose, under all circumstances, the safer of two courses of action is not expected nor required of any one. If two alternative courses requiring prompt *75choice and action are pnt before a man and either appears to be reasonably safe, if he chooses the one that turns out to be less safe than the other, he is not to be convicted of negligence for choosing the course which proved, by subsequent events, to be less safe than the other. Plaintiff’s situation, according to his evidence, was about this: wagons on the east prevented him from turning in that direction; a south-bound car and one or two wagons on the west track were passing him and he could not turn in that direction until they had passed on south of him; the car in his rear had gained on him until it was very close to the rear end' of his wagon, and the motorman was vigorously sounding the gong to warn plaintiff to drive off the track; the first opening affording him an opportunity to drive off was when the car and the wagons travelling south had passed him; looking up the west track, along which. he could see a distance of from one hundred and fifty to tAVO hundred feet, and seeing no car on the west track, he availed himself of this, the first opportunity to get off the east track by turning west, a way that appeared to him to be reasonably safe. We do not think, in these circumstances, plaintiff ought to be convicted of negligence as a matter of law, for the reason he might have avoided the possibility of a collision Avith the south-bound car while continuing to drive ten or fifteen feet farther north in the east track.
2. Defendant assigns as error the giving of the following instructions for plaintiff:
“1. The court instructs the jury that if they believe from all the evidence that the agents or servants of the defendant company at the time of the injuries to plaintiff, carelessly and negligently ran said car upon plaintiff’s team, and that, by the exercise of ordinary care, they could have avoided doing so, and that such negligence was the cause of the injuries to plaintiff, they should find for the plaintiff, unless you find from the evidence that plaintiff himself was guilty of neg*76ligenee which, directly contributed to his injury, as explained in other instructions.
“2. The court instructs the jury that if they believe from the evidence that plaintiff was driving on Fourth street of the city of St. Louis, on the fifteenth day of August, 1903, and that while he was crossing the tracks of the defendant plaintiff’s vehicle was struck by a car operated by the defendant as the direct result of the failure of the agents of the defendant to use ordinary care in stopping the said car upon the first appearance of danger to the said plaintiff, whereby plaintiff was injured, then they should find in favor of the plaintiff, and against the defendant, unless the plaintiff was guilty of negligence which directly contributed to his injury, as explained in other instructions.”
The contention is that the instruction did not submit to the jury either on,e of the ten specific allegations of negligence contained in the petition. Thé petition averred ten specific acts of negligence. The instruction was not confined to any one or all of the acts alleged, but stepped outside the allegations of the petition and allowed the jury to find for plaintiff, if they found from the evidence that defendant was negligent in any matter whatever. This was palpable error. [Allen v. St. Louis Transit Company, — Mo. App. —, 81 S. W. 1142; Sommers v. St. Louis Transit Company, 108 Mo. App. 319, 83 S. W. 268, decided at this term.']
3. ' It is alleged in the petition that plaintiff saw the car coming from the north as he turned off' the east track. Defendant contends that the term “as” as used in this connection, signifies that- plaintiff saw the car coming from the north at the moment he turned to drive across the west track, and that he is conclusively bound by this allegation and is convicted of contributory negligence by his pleadings, and that his evidence, that he looked and did not see the car, should be rejected as it contradicts his petition. The term “as,” as used in the petition, means “when” (Finance Co. v. Anderson, 106 *77Iowa 429), and does not signify that plaintiff saw the •car at the moment he turned to drive across the track, but that he saw it when — at some time — while he was •driving across the track,
4. The objection to the second instruction is that it is based solely on the failure of the motorman to use ■ordinary care in stopping the car upon the first appearance of danger to plaintiff. The defendant’s counsel makes the inquiry, “To whom does this appearance of danger apply, to the plaintiff or to the motorman?” It seems to us this is an unwarranted criticism. The motorman would not be expected to act upon what appeared to the plaintiff (uncommunicated to the motorman) but on what appeared to himself. The appearance referred to in the instruction was the appearance of danger to the plaintiff, as seen by the motorman, and the jury could not have understood the instruction to mean anything else. Nor does the instruction leave the matter open for conjecture, but mentions a definite fact upon which the motorman was required to act and to begin to check the speed of his car when he first saw there was danger of its colliding with plaintiff’s wagon, if the car was allowed to speed on unchecked. Nor is the instruction objectionable, as contended by defendant, because the motorman neglected this duty. The instruction is objectionable in this, there was no evidence whatever offered to show within what time and ■space the south-bound car could have been stopped, yet the jury was required by the instruction to find these facts.
5. As qualifying several of the plaintiff’s instructions, the court made reference to plaintiff’s contributory negligence as defined in other instructions. No instruction was given defining contributory negligence. For this reason defendant insists that the judgment ■should be reversed. Contributory negligence was pleaded by defendant as an affirmative defense. The burden was on defendant to prove this defense and if it desired *78to have contributory negligence defined to the jury it should have asked an appropriate instruction; having asked none, it is presumed to have abandoned that defense; and as that defense was not submitted to the jury, the clauses in plaintiff’s instructions referring the jury to an instruction defining contributory negligennce, which was not given, should be regarded as mere surplusage and as harmless error.
On the oral argument much stress was laid by defendant’s counsel on sections 1775 and 1776, of the ordinance offered in evidence by defendant, and it was strenuously insisted that plaintiff had violated section 1776 by turning off of the east track on to the west one and driving north thereon in a direction opposite to the one in which the cars were running. We have failed to discover any such evidence in the record. Plaintiff’s evidence shows that he turned his team to- the west and drove “catacornered” across the west track, not north on it; and the defendant’s evidence is that he turned and was driving across, not along, the track when struck by the car.
6. The defendant asked but the court refused, the following instruction:
“Before the plaintiff can recover in this action, it is not only necessary that nine or more of your number shall agree to find in his favor, but it is also necessary that the nine or more of you so agreeing shall all concur in finding the existence of at least one of the specific grounds of negligence submitted for your determination.”
A like -instruction was-asked in the case of Holden v. Railroad, 108 Mo. App. 665, 81 S. W. 133, decided at this term, in which we held it was not error to refuse an instruction like this one. We adhere to that opinion.
For error in instructions for plaintiff, the judgment is reversed and the cause remanded.
All concur. Goode, J., in the result.