Moore v. Lindell Ry. Co by the exercise of ordinary care and expedition, if said car was running not exceeding 10 miles per hour, then she had the right to proceed to cross defendant's track, if she used ordinary care and expedition in doing so, and if she did not know or have reason to believe said car was in fact running more than 10 miles per hour (if, in fact, said car was running more than 10 miles per hour)." The instructions given at the request of defendant are as follows: (1) The jury are instructed that the negligence alleged against the defendant is: First, that the defendant failed to give warning of the approach of the car by sounding the bell or otherwise; second, that the defendant did not keep a vigilant watch for persons on foot upon the tracks or moving towards them, and did not, upon the first appearance of danger, stop the car within the shortest time and space possible; and, third, that the defendant ran its car at the time in question at a rate of speed exceeding 10 miles an hour. And the court instructs the jury that it is incumbent upon the plaintiff to prove that the defendant was guilty of one or the other of these specified acts of negligence, and that such negligence on its part caused the injury complained of. And even though the jury find that the defendant was guilty of one or the other of the acts charged, and even if they find that such negligence contributed to the injury complained of, still, if they further find that the deceased, Mrs. Moore, was negligent in attempting to cross the track of defendant as she did, and that such negligence on her part contributed to the accident, then the plaintiff is not entitled to recover. (2) The court instructs the jury that, although they may believe and find from the evidence that the defendant, through its agents and servants in charge of its said car, was negligent in failing to sound the gong, and that it was negligent in running said car at a rapid rate of speed, yet the plaintiff is nevertheless not entitled to recover if you further believe that the deceased knowingly tried, by hurrying, to pass in front of said moving car, in such close proximity thereto as to make the danger of collision imminent; and this is true. even though you may further find that the agents and servants of the defendant failed to use proper care to stop said car after such dangerous position of the deceased became known to them. (3) The court instructs the jury that, although they may believe and find from the evidence that the motorman of defendant's car saw the deceased wife of plaintiff approaching the track, on which said car was moving, afoot, and with said car in view, said motorman nevertheless had the right to assume that said deceased would not pass in front of said car, but that she would stop before passing onto the same, and that, under such assumption, he had the right to proceed with the speed of said car unabated, unless you believe that the same was being run at an unlawful or negligent rate. (4) Even though the motorman saw Mrs. Moore Moore v. Lindell Ry. Co crossing the street and moving toward the track along which this car was moving, still he had the right to assume that she knew the car was approaching and would have regard for her own safety, and not attempt to pass in front of the same if it was obviously dangerous to attempt to do so. And the motorman had the right to assume that she would stop when she came to the track, and not attempt to cross in front of his car if it was manifestly unsafe to do so. And the motorman had the right to proceed at a lawful rate of speed, and was not bound to stop his car until she placed herself in a position of peril by coming upon the track, or so close to it as to endanger her." The court of its own motion gave to the jury the following instruction: "The jury are instructed that the negligence alleged against the defendant is: (1) That at the time in question the defendant failed to give warning of the approach of the car by sounding the bell or otherwise. (2) That the defendant did not keep a vigilant watch for persons on foot upon the tracks or moving towards them, and did not, upon the first appearance of danger, stop the car within the shortest time and space possible. (3) That the defendant ran its car at the time in question at a rate of speed exceeding 10 miles per hour. And the court instructs the jury that it is incumbent upon the plaintiff to prove that the defendant was guilty of one or the other of these special acts of negligence, and that such negligence on its part caused the injury complained of. And even though the jury find that the defendant was guilty of one or the other of the acts charged, and even though they find that such negligence contributed to the injury complained of, still, if they further find that the deceased, Mrs. Moore, was negligent in attempting to cross the track of defendant as she did, and that such negligence on her part contributed to the accident, then the plaintiff is not entitled to recover, unless you further find from the evidence that the defendant motorman saw, or by the exercise of reasonable care might have seen, that the plaintiff's wife was in a position of danger or peril, and that the said motorman thereafter could have averted the injury to plaintiff's wife by the exercise of reasonable or ordinary care, but negligently failed to do so." It is unnecessary to notice the first instruction given for the plaintiff, further than to say that there is no evidence whatever in the record that the deceased looked or listened for an approaching car while going upon or over the defendant's track. The plaintiff introduced no evidence whatever bearing upon this proposition, and the defendant's evidence shows that she paused an instant while on the south-bound track when the car was 20 feet from her, and then deliberately stepped upon the north-bound track when the car was within 5 feet of her. The plaintiff's second instruction predicates a right of recovery upon a violation of the pleaded and accepted city Moore v. Lindell Ry. Co ordinance, and, read in connection with the defendant's third and fourth instructions, and with the instruction given by the court of its own motion, the jury could not fail to understand the law of the case as made. The appellant, however, attacks the second instruction given for the defendant. The dominant idea expressed by this instruction is that, notwithstanding the defendant may have been primarily negligent, nevertheless the plaintiff cannot recover if thereafter both the defendant and the deceased were guilty of concurrent, subsequent negligence, nor can the plaintiff recover if both were guilty of negligence of such kind, character, or degree as to constitute it recklessness or wantonness. The rule is thus stated in 7 Am. & Eng. Enc. Law (2d Ed.) pp. 385, 386: "And so when the negligence of the person inflicting the injury is subsequent to, and independent of, the carelessness of the person injured, and ordinary care on the part of the person inflicting the injury would have discovered the carelessness of the person injured in time to avoid its effects and prevent injuring him, there is no contributory negligence, because the fault of the injured party becomes remote in the chain of causation. In such a case the want of ordinary care on the part of the injured person is not held a juridical cause of his injury, but only a condition of its occurrence. Conversely, when the carelessness of the person inflicting the injury is antecedent to the negligence of the person injured, and the latter might by ordinary care have discovered the failure of the former to use such care, in time to avoid the injury, there can be no recovery because the intervening negligence of the injured person is the direct and proximate cause of his injury." Judge Cooley states the law with his usual force and clearness, as follows: "Regarding the case of a negligent injury, the general result of the authorities seems to be that if the plaintiff or party injured, by the exercise of ordinary care under the circumstances, might have avoided the consequences of defendant's negligence, but did not, the case is one of mutual failure, and the law will neither cast all of the consequences upon the defendant, nor will it attempt any apportionment thereof." Cooley on Torts (2d Ed.) 812. The rule, however, is nowhere more clearly or accurately stated than in the recent work of Nellis on the Law of Street Surface Railroads, pp. 383, 384, where he says: "It may be stated as a rule that a plaintiff who, by his own negligence, has placed himself in a dangerous position where an injury was likely to result, may still recover for such injury, if the defendant, with knowledge, or such notice as is equivalent to knowledge, of plaintiff's danger, failed to exercise reasonable care by which the injury might have been avoided, unless the injury was the result of concurrent negligence of both parties." In Murphy v. Railway Co., 153 Mo., loc. cit. 261, 54 S. W. 442, the court, speaking through Brace, J., said: "The violation of an ordinance by the Moore v. Lindell Ry. Co defendant could not be the proximate cause of an injury. which was the product of such negligence and the concurrent negligence of the plaintiff. The concurrent negligence of both in such a case is the proximate cause of the injury, and the plaintiff cannot recover. This is the law universally prevalent in this country, and to it there is but one exception in this state made on the score of humanity, and that is, if sufficient time and opportunity intervene between the concurrent acts of negligence which produced the dangerous situation and the injury to have enabled the defendant by the exercise of ordinary care to have prevented the injury, and he fails to exercise such care, then he will not be protected by this rule, but to the failure to exercise such care will the injury be attributed as the proximate cause thereof, and for such failure the plaintiff may recover." To this rule I add the logical and necessary corollary that, if both parties are guilty of recklessness or wantonness, there can be no recovery. For, if the injured party is guilty of recklessness or wantonness, he is no more entitled to recover for the defendant's recklessness or wantonness than he would be if it was the plain case of negligence and contributory negligence in the first degree. Holwerson v. Railroad, 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850. It has always been the law in this state that it is such gross negligence as precludes a recovery for a person to step on a railroad track directly in front of an approaching train, and so close to it as to render it impossible to stop the train in time to avoid injury. Boyd v. Railroad, 105 Mo. 317, 16 S. W. 909; Watson v. Railroad, 133 Mo., loc. cit. 250, 34 S. W. 573; Kelly v. Railroad, 75 Mo., loc. cit. 140; Sinclair v. Railroad. 133 Mo., loc. cit. 241, 34 S. W. 76; Kries v. Railroad, 148 Mo. 321, 49 S. W. 877; Holwerson v. Railroad, 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850; Hook v. Railroad, 162 Mo. 569, 63 S. W. 360; Tanner v. Railroad, 161 Mo. 497, 61 S. W. 826; Van Bach v. Railroad (Mo. Sup.) 71 S. W. 358. And this is true even if the train was running at a rate of speed in excess of the maximum rate permitted by law. Tanner v. Railroad, 161 Mo. 497, 61 S. W. 826. For in such case the negligence of the injured party, and not the rate of speed of the train, is the proximate cause of the injury. To go upon a track in front of an approaching train, and so close to it as to render it impossible to stop the train in time to avoid injury, is negligence, whether the train is moving rapidly or slowly; and the only question in any case is whether, notwithstanding such negligence of the injured party, the train could have been stopped in time to have avoided the injury; and if the plaintiff bases a right to recover upon the failure of the defendant to exercise ordinary care to prevent the injury after the peril of the plaintiff, or party injured, was known, or could have been known by the exercise of ordinary care, the burden of alleging and proving that such was the fact rests Moore v. Lindell Ry. Co upon the plaintiff. If, however, the undisputed facts show that the injured party was guilty of such contributory negligence as will preclude a recovery, and if there is no evidence of a willful, reckless, or wanton disregard of human life on the part of the operatives of the train, there is nothing for a jury. to pass upon, and the court should sustain a demurrer to the evidence. Tanner v. Railroad, 161 Mo. 497, 61 S. W. 826; Kellny v. Railroad, 101 Mo. 67, 13 S. W. 806, 8 L. R. A. 783; Holwerson v. Railroad, 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850; Van Bach v. Railway (Mo. Sup.) 71 S. W. 358; Guyser v. Railroad (No. 10,634, not yet officially reported) 73 S. W. 584. Jf, instead of so doing, the trial court submits the case to the jury, and gives improper and erroneous instructions, and the jury find for the defendant, the verdict will not be disturbed, notwithstanding such misdirection, because it is in consonance with the true law, and is for the right party, and because the plaintiff would not be entitled to a verdict at all upon such a showing. Hill v. Wilkins, 4 Mo., loc. cit. 88; Orth v. Dorschlein, 32 Mo. 366; Kelly v. Railroad, 88 Mo. 534; Ellerbe v. Bank, 109 Mo. 445, 19 S. W. 241; Homuth v. Railroad, 129 Mo., loc. cit. 642, 31 S. W. 903; Haven v. Railroad, 155 Mo., loc. cit. 223, 224, 55 S. W. 1035, and cases cited. In this case there is no evidence whatever that the deceased looked or listened for a car before going upon the track. All the evidence there is in the record is that furnished by the defendant's motorman, and he says that: "When I just saw her I hit my gong, and she kept coming until she got on the south-bound track. At that time when she stepped there, I was within probably perhaps 20 feet of her. She paused for an instant, and when I got within five feet of her she just deliberately walked over the track. I reversed my car, but she was too close, and it hit her." If the deceased saw the car coming, as her pausing on the south-bound track would indicate, and if the car was then within 20 feet of her, it was negligence for her to go upon the north-bound track in front of the approaching car and when it was within five feet of her, whether the car was running at 4, 5, 8, 10, or 15 miles an hour. The street was clear of obstruction, and there was plenty of light to see distinctly. The motorman saw the deceased. She saw the car, or could have done so if she had looked. The motorman saw her approaching the track. He sounded the gong. She continued to approach until she reached the south-bound track. There she paused. The car was then 20 feet from her. The motorman had a right to believe that she intended to remain in her then place of safety until the car passed. Instead of doing so, however, when the car was within five feet of her, she stepped on the track in front of the car, and attempted to cross the track. Then for the first time she placed herself in a place of imminent peril. Then it was too late to stop the car in time to avoid the |