DISSENTING- OPINION.
ALLEN, J.I am unable to concur in the majority opinion herein, and will undertake to state, as briefly as possible, the reasons for my dissent.
1. I am of the opinion that the ruling of the trial court on the demurrer to the evidence was proper. *14It is conceded that defendant’s negligence appears. Indeed, plaintiff’s evidence goes to show that defendant’s car1 approached the crossing in question at a very high and negligent rate of speed — estimated by the witnesses at from twenty-five to forty miles per hour — coming down hill with full power turned on; that the motorman in charge thereof was not keeping a vigilant watch, and did not see plaintiff or his horse and buggy until at the moment of the collision, and that no effort was made to stop the car until just as it struck the vehicle in which plaintiff was riding.
My associates, however, hold that plaintiff was guilty of contributory negligence, as a matter of law, precluding his recovery. This is said to be so partly for the reason that plaintiff was driving his horse in a trot as he approached the car track. But I am of the opinion that the facts of the case are not such as to render plaintiff guilty of negligence as a matter of law, merely because of the speed at which he drove toward and upon the tracks.
The evidence discloses that plaintiff was driving in a slow trot, south along Twentieth street, approaching the car tracks on Washington avenue. The building line along the north side of Washington avenue is about thirty-four feet from the nearer or westbound track. On the northwest corner of Twentieth street and Washington avenue stood a large building, extending up to the building line; and when plaintiff passed the corner of' this building he was driving in a slow trot. When pressed, on cross-examination, to say at what rate of speed he was driving he said: “I couldn’t say that in particular, how many miles — about seven or eight miles.” But not only does he state that he was proceeding in “a kind of short trot — slow trot,” but the witness who was on the front platform of the car likewise testified that plaintiff’s horse was traveling in a slow trot. And when the witness was asked: “Was the buggy going faster than you walk? He said: *15“No, sir.” Q. “Just about the same speed?” A. “Yes, sir.” Q. “And the horse was at a trot?” A. “I said a slow trot.”
There is no evidence in the case whatsoever that plaintiff was driving so rapidly that, from the time that he emerged from behind the building and saw the car approaching from the east, a block distant, he could not have stopped his horse in time to prevent driving upon the tracks. Neither is there anything whatsoever to justify any such inference. On the contrary, it may be readily inferred that the plaintiff could easily have stopped his horse, going in a slow trot, within a much shorter space than that which then intervened between his horse’s head and the tracks. It would appear to be altogether unreasonable to suppose that a horse, going at a slow trot, drawing a light “runabout,” could not readily be stopped within a few feet. And certain it is that there is no evidence whatsoever even remotely suggesting that the horse and vehicle could not have been stopped after plaintiff passed the building line and saw the approaching car. On the contrary it affirmatively appears that plaintiff purposely allowed his horse to proceed forward for the reason that he apprehended no danger from the approaching car, because of its great distance from the crossing.
In tiffs respect the case is altogether unlike that of Dey v. Railroad, 140 Mo. App. 461, 120 S. W. 134, relied upon in the majority opinion; for there it appears that the plaintiff was driving a team, attached to a heavy carriage, at such a rate of speed that after passing the building line he was unable to stop, by reason of which he came upon the car track in front of an approaching car. The latter was but one hundred feet distant when the plaintiff passed the building line, and approaching very rapidly. It appears that though the horses were then fifteen or twenty feet from the track, the plaintiff admitted that their *16speed was such that he could neither stop nor turn aside in time to avert the accident.
The other cases cited in support of the proposition that “the driver must not approach a dangerous crossing recklessly or heedlessly,” to-wit: Kelsay v. Railway, 129 Mo. 362, 30 S. W. 339; Mockowik v. Railroad, 196 Mo. 550, 94 S. W. 256; Schaub v. Railway Co., 133 Mo. App. 440, 113 S. W. 1163; and Paul v. Railways Co., 152 Mo. App. 577, 134 S. W. 3, have naught to do with the question of one’s driving toward a railway crossing at a reckless rate of speed, so that he is unable to control his vehicle and thereby comes upon the track and is injured.
This phase of the majority opinion must find support, if at all, in following the testimony of the plaintiff, viz.: Q. “When you realized the danger, why couldn’t you stop?” A. “When I realized the danger I started to stop, but I seen the car was going so fast that I couldn’t stop the horse any more to go back, and I just tried the horse to force him across the track there.” Q. “What did you do, Mr. Hamm, towards getting the hoi~se off the track, if anything?” A. “I first tried to pull the horse back, and I couldn’t pull the horse back. The horse was going in a kind of a trot, and I couldn’t pull it back quick enough, and I seen as I could not stop the horse to go back — to turn around — so I tried to force the horse over, but (by) this time the car hit me. ’ ’
But this testimony related to a time when the horse, according to plaintiff’s testimony, was actually on the track. Plaintiff said: “When I came near to the track'I just looked up and I seen the car coming so fast near me, so I tried to pull back, and then I hurried the horse up to get over. ’ ’ But later, on cross-examination, he explains that though he was near the track, as he sat in the buggy, “the horse was right on the track — was stepping on the track.” He further testified that his inability to stop the horse and force *17him off of the track was not due to the speed of the horse, which he repeatedly says was going slowly, but to the fact that the car was then so nearly upon him, and coming at such a high rate of speed, that there would not have been sufficient time to stop the horse and back off of the track, even had the horse been going at a walk. And he says that when he saw that the car was so close upon him, coming so rapidly, he became somewhat excited; that he did practically stop his horse at first, and then concluded that the safer plan was to urge him forward.
I think that it cannot be said that the evidence shows plaintiff to have been guilty of negligence as a matter of law, in that he recklessly drove toward the track and upon it at such a rate of speed that he was unable to stop' his horse and vehicle, and avoid being struck by the car. The above testimony respecting his inability to stop his horse relates only to his failure to stop quickly enough, after the horse was upon the track, in order to escape by backing his horse and buggy, or by turning the latter off of the track. Such might well have been the case had plaintiff’s horse been proceeding in a walk instead of a slow trot, for it appears that he then had but the briefest interval of time in which to act; the car, according to his testimony, being then but fifty feet away, and approaching at a speed which he estimated at thirty-five or forty miles per hour, other, witnesses placing it at from twenty-five to thirty miles per hour.
It would be quite a different question were the evidence such as to make it appear that plaintiff approached the track at such a rate of speed as not to be able to control his horse, and to preclude the possibility of his stopping after he reached and passed the building line, and for the first time could see up the track toward the approaching car. Such were the facts of the Dey case, supra. But there is no such *18evidence here. Nor does it appear that plaintiff could be said to be guilty of negligence as a matter of law-in permitting his horse to continue to proceed in a slow trot after passing the building line, and seeing the car some four hundred feet away. As to this he said: “After I saw the car first, I left the horse go like I was going, a regular slow trot; I thought I had plenty of time; I didn’t pay much attention to that car, because the car was so far away.” Elsewhere in his testimony he says that he had been accustomed to drive over this crossing, generally three or four times a day, for some ten years; and that he was familiar with the usual speed of the cars at this place, and that the car in question was coming faster than he supposed, and faster than he had ever known one of these cars to travel. This he could not discern, however, when the car was a block away. And it appears that he relied upon the presumption that the car was proceeding at the usual rate of speed, which must be assumed to have been within the ordinance rate, to-wit, ten miles per hour, for the presumption is that defendant was accustomed to obey the law, and not that it habitually violated it. He therefore did not check his horse, but continued to drive him at a slow trot, believing that he had ample time to cross, and apprehending no danger. There was no car coming from the west, and the car which he observed coming from the east was so far away that he had no reason to anticipate danger therefrom. I think that his act cannot be pronounced negligent as a matter of law. Under the circumstances, manifestly, it would have been safer for him to have driven more rapidly than he did, after passing the building line, and seeing that the tracks were clear except for a car approaching from the east some four hundred feet away. Had he done so he would doubtless have escaped injury. As to his ability to stop, it seems that he did, in fact, bring his horse practically to a stop; but for which act it *19may be that he would have escaped. However, he then had but an instant in which to act,- and he is not to be held negligent for an error of judgment in the face of impending danger; and it is quite clear that he should not be denied a recovery on this score. [See Hanna v. Kansas City Southern Ry. Co., 178 Mo. App. 281, 165 S. W. 1. c. 1152, and cases cited.]
This phase of the majority opinion proceeds upon the theory that plaintiff was driving ina“ sharp trot, ’ ’ for, as is said, ‘ ‘ seven or eight miles an hour is a sharp trot. ’ ’ But plaintiff disclaimed ability to estimate with any precision the number of miles per hour that a horse would travel in a slow trot. He repeatedly states that the horse was going slowly; and the witness upon the front platform of the car declares that the horse was not going more rapidly than a man could walk.
The testimony must be viewed in the light most favorable to plaintiff for the purposes of the demurrer; and so viewing it, I think that the case should not proceed upon the theory that the horse was going in a sharp trot. And in any event the judgment should not be reversed on this theory, in the absence of any evidence that plaintiff could not have stopped his horse after seeing the car, in time to avert the collision; and when in fact the evidence tends to indicate the contrary, and that he purposely continued to approach the track, apprehending no ■ danger from the car.
II. But it is said that plaintiff was also guilty of negligence, as a matter of law in failing to exercise due care and caution in looking for the approach of the car, in that he looked only when he passed the building line, and failed thereafter to further look toward the approaching car until the latter was so near that the collision was unavoidable.
But in my opinion he cannot be declared guilty of negligence, as a matter of law, in failing to look a sec*20ond time before going upon the track, under the circumstances appearing in evidence. "When he looked the first time he was slightly less than thirty-four feet from the track, his horse nearer by perhaps ten feet. He says that.he saw the car at Nineteenth street. It appears that the distance from Twentieth street to Nineteenth street is three hundred and seventy-seven feet, and as plaintiff was about in the center of Twentieth street, the car, when he first saw it, must have been approximately four hundred feet from the point of collision. Plaintiff continued to approach the track, turning to look in the other direction for an approaching car. As to the car from thé east which struck and injured him, he assumed that, by reason of its distance from him, no danger need be feared from it, acting upon the presumption that it was approaching at the usual or lawful rate of speed. It was at night, and at that distance he was unable to see and know that it was proceeding at a very high and dangerous speed.
In view of these facts, and particularly in view of the fact that he was driving and hence could, if necessary, pass over the tracks more quickly than if walking, it seems that he could not well be said to have been negligent, as a matter of law, in failing to further watch the approaching car, having to otherwise give heed to his surroundings in driving upon the crossing.
This' question, I think, is disposed of by the opinion of the Supreme Court in Strauchon v. Railway Co., 232 Mo. 587, 135 S. W. 14. There the plaintiff, a pedestrian, looked the last time when the car was two hundred feet away, and through no fault of his he failed to discern the fact that the car was running at an unlawful rate of speed. He had fifteen or eighteen feet further to go in order to clear the track, and “thought that he had ample time to cross and-would have had if the car had been running at its usual speed.” It was held that he was not guilty of con-*21tributary negligence, as a matter of law, but that the question of his negligence was one to be referred to the jury. And in the course of the opinion by Woodson, J., the following was quoted approvingly from White’s Supp. to Thompson on Neg., p. 318, sec. 1669, viz.:
“It is not required that a traveler should anticipate that an approaching train will proceed at an unlawful or unusual rate of speed, and he will not be charged with negligence, as a matter of law, in attempting to cross, if, in view of the distance at which the track seems to be clear, he would have time to cross before a train going at the usual and lawful speed would reach the crossing.”
This appears to be equally applicable to the case in hand. Plaintiff, after passing the building line, and seeing the car, without being able to discern the fact that it was proceeding at a high and unlawful rate of speed, saw the track to the east to be clear for such a distance as undoubtedly would have enabled him to cross in perfect safety had the car been proceeding at the usual or lawful rate of speed. Under such circumstances plaintiff, knowdng nothing to the contrary, and not being able to discern anything to the contrary by the exercise of ordinary care, had the right to presume that the car was proceeding at the usual and lawful rate of speed. [Strauchon v. Ry. Co., supra.] And his testimony tends to show that he relied upon the presumption that the car was so proceeding. For this reason, what is said in the Mockowik case, supra, as to presumptions of this character, is here inapplicable.
Since it appears that plaintiff looked when he passed the building line, and saw no car except this one, some four hundred feet away, Lam of the opinion that he cannot be declared negligent as a matter of law in failing to look again, in view of the fact that he had every reason to conclude that, by continuing to drive forward, he Avould clear the tracks long before a car approaching at the usual and lawful rate of speed *22would reach, that point; and. whether or not he was negligent in failing to look a second time before actually going npon the track, was a matter for the consideration of the jury. [See, also, Schafstette v. Ry. Co., 175 Mo. 142, 74 S. W. 826; Maloney v. Rys. Co., 183 Mo. App. 292; Peterson v. Transit Co., 114 Mo. App. 374, 89 S. W. 1042; Linder v. Transit Co., 103 Mo. App. 574, 77 S. W. 997; Moritz v. Transit Co., 102 Mo. App. 657, 77 S. W. 477.]
In the last-mentioned case it is said: “A driver or pedestrian can hardly find a better chance to cross car tracks in safety than when the nearest car is five hundred feet from it. On some streets of St. Louis there is nearly always a car that close some hours of the day.”
And it may be here said that if a driver of a vehicle is to be held guilty of negligence as a matter of law in attempting to cross a car track with a car not nearer than about four hundred feet, it may be difficult indeed for him to find an opportunity to cross a double street car track upon which many cars are being operated in both directions, without being chargeable with negligence in so doing. To so hold would, it seems to me, be tantamount to saying that street car companies have a paramount right to the use of the streets, and may operate their cars in utter disregard and defiance of the ordinances regulating the speed thereof, and that a citizen attempting to pass over such tracks must do so at his peril. [See Lueders v. Railroad, 253 Mo. 1. c. 110.]
III. But regardless of the foregoing, I think that the humanitarian rule, or last chance doctrine, is applicable to the case made by plaintiff’s evidence, and that the demurrer to the evidence was properly overruled on this ground. The witness on the front platform of the car testified that the car stopped at Eighteenth street, two blocks from the point of the collision, *23to take on and discharge passengers; then the motorman turned on full power and the ear proceeded, down a considerable grade, at a rate of speed which the witness estimated to be from twenty-eight to thirty miles per hour, the speed not being checked at all until the instant of the collision, and no bell rung. This witness testified that when the car passed Eighteenth street the motorman was talking to an intoxicated man seated on the sand box on the front platform, as he had been doing “all the way out.” The witness could not say positively whether or not the motorman was so engaged after passing Nineteenth street. However, the witness says that when the car was about one-fourth of the distance from Nineteenth street to the point of collision, which would be approximately three hundred feet away, he plainly saw plaintiff’s horse and buggy approaching the track. There were lights about the point of crossing, and from the evidence it appears that plaintiff’s horse and buggy could be readily seen at such distance. It appears that the witness took his eyes off of the horse and buggy, and looked at the motorman and also at the intoxicated man on the sand box, and that when he looked forward again they “were right on top of” plaintiff.
His testimony on cross-examination is not altogether clear as to the movements of the horse and buggy and of the car; but he asserts positively that he saw the horse and buggy proceeding toward and quite near the tracks, at a time when the car had traversed but about one-fourth the distance from Nineteenth street to Twentieth street. And he estimates that the car was some sixty or eighty feet from the point of collision when the front wheels of the buggy had passed over the north rail of the westbound track. His testimony also shows that the motorman was not keeping a vigilant watch ahead, or in fact any watch at all, for the latter did not see plaintiff’s horse and buggy until the collision occurred.
*24"What the witness saw, from the front platform of the car, the motorman could also have seen. The vehicle had no top, and had the motorman been keeping a vigilant watch ahead, he would have seen that plaintiff was continuing' to approach the track, and apparently oblivious to his danger, for he was looking the other way or straight ahead. Under such circumstances it was the duty of the motorman to have discovered plaintiff’s peril, which he could have done by the exercise of ordinary care, and to thereafter have avoided striking and injuring him, if such could have then been done by the exercise of ordinary care, with the appliances at hand.
It is the duty of the motorman in charge of a street car to keep a vigilant watch for travelers about to cross the track, and he is held to have seen what he could have seen, had he been in the exercise of due care. [Ellis v. Metropolitan Street Railway Co., 234 Mo. 657, 138 S. W. 23.]
An expert witness for plaintiff, who had formerly been a motorman on this line of defendant’s street railway, testified that a car, of the character in question, going at the rate of thirty miles an hour down this grade, under the conditions prevailing, could have been stopped within about one hundred feet. There is also testimony in the récord to the effect that, though the motorman made no effort to stop the car until striking plaintiff’s buggy, the car was thereafter stopped just west of the fire department building which stood upon the southwest corner of Washington avenue and Twentieth street. The length of the latter building, fronting on Washington avenue, was shown to be eighty feet. From which it appears that the car was actually stopped within approximately one hundred feet. The estimates of the rate of speed of the car vary from twenty-five to forty miles per hour, plaintiff’s own estimate being the only one above thirty miles.
*25The testimony of the expert witness does not indicate within what distance the car could have been stopped if its speed exceeded thirty miles per hour. However, the testimony going to show that the car was actually stopped within approximately one hundred feet, after the motorman undertook so to do, is sufficient on this score. [See Ellis v. Metropolitan Street Railway Co., supra; Peterie v. Metropolitan Street Railway Co., 177 Mo. App. 359, 164 S. W. 254.]
It therefore appears that from the time that the witness on the front platform saw plaintiff’s horse and buggy approaching the tracks, and within a few feet thereof, the motorman could readily have stopped the car before reaching the crossing. But, aside from-this, it is quite apparent that a mere slackening of the speed of the car, coupled with a sounding of the gong, would have avoided the collision, since, as it was, the buggy was nearly across the track before it was struck by the car, the latter striking the rear wheels only. At least a jury would be justified in so finding. In such cases the humanitarian rule may be invoked. [See Peterie v. St. Ry. Co., supra; Maginnis v. Railroad, 182 Mo. App. 694, 165 S. W. 849, and cases cited.]
In any event, there was substantial evidence to justify a finding that the motorman, by the exercise of ordinary care, could have seen that plaintiff was in a position of peril, or that he was in the very act of placing himself in a perilous position, in ample time to have avoided injuring him, by using ordinary care to the end of stopping the car or checldng the speed thereof.
I think that plaintiff was entitled to go to the jury under the humanitarian or last chance doctrine, even though he be regarded as negligent in coming upon the tracks; and that the demurrer was properly overruled on this ground. [See Ellis v. Street Ry. Co., supra; Waddell v. Street R. Co., 213 Mo. 8, 112 S. W. 59; Pe*26terie v. Street Ry. Co., supra; Hall v. Railroad, 124 Mo. App. 661, 101 S. W. 1137.]
A demurrer to the evidence can be sustained only when the cause of action pleaded is nnsustained by any material evidence or by any inference reasonably to be drawn from the facts proven. [See Enloe v. Car & Foundry Co., 240 Mo. 448, 144 S. W. 852, and eases cited.]
I am of the opinion that plaintiff’s evidence made a prima-facie case. The defendant, however, stood mute and offered no testimony. I think therefore that the judgment should be affirmed, since no error is as7 signed other than the ruling on the demurrer. And as I deem the decision herein to be contrary to the previous decisions of the Supreme Court in Strauchon v. Railway Co., 232 Mo. 587, 135 S. W. 14; Ellis v. Metropolitan Street Railway Co., 234 Mo. 657, 138 S. W. 23; and Waddell v. Street R. Co., 213 Mo. 8, 112 S. W. 59, as well as to other decisions of that court, I ask that the case be certified to the Supreme Court for final determination.