[8] The respondent's case was submitted solely on the humanitarian doctrine. The appellants' witnesses testified that the locomotive fireman had started to throw coal in the firebox before the deceased Krause reached a position of imminent peril, and was just getting back on his seat in the cab when the casualty occurred. There was no evidence to this effect produced by respondent. Evidently, the jury did not believe appellants' witnesses; this it had a right to do even though such testimony was not contradicted or impeached. Dempsey v. Horton,337 Mo. 379, 84 S.W.2d 621.
Since the collision occurred at a public crossing, it was the duty of the appellants' servants to keep a lookout. In other words, under the humanitarian doctrine, appellants were chargeable with constructive notice. As before stated, there was no evidence produced by respondent that tended to show the fireman was not in his seat; therefore under the jury's finding or on our ruling the case on demurrer, the appellants' evidence on this point should be disregarded. Hence, what is said in the opinions prepared by Bohling, Commissioner, and Ellison, Judge, in reference to antecedent negligence is not necessary to the decision of this case. It has no place in this case, and it is mere dictum.
Could it be said, if I were driving my automobile down a busy street in one of our cities, I could escape liability under the humanitarian doctrine because I testified I was not looking ahead but was looking down at the foot brake and therefore did not see the injured party? I think not. If this point were an issue (which I think unnecessary to decide), and the jury found against me, this court should *Page 358 not disturb the jury's verdict on account of my testimony. If it did, it would be weighing the evidence, which it has no right to do.
For the reason stated in the opinion prepared by Bohling, Commissioner, in reference to slackening the speed of the train, I think the case should be reversed and remanded.