RAGLAND, J.
An opinion in this case was prepared by one of our commissioners, to which in its entirety we were unable to agree. His statement of facts and his conclusions of law in part, however, have our concurrence, and we adopt them, as follows:
"This case, on appeal from the circuit court of St. Louis county, submitted at the October term, 1921, has been reassigned for consideration and decision.
"The plaintiff, aged 11 years, by his next friend, brought this suit against defendant to recover damages for the death of his father, Marion Treadway, who was killed as the result of a work car of defendant striking an automobile in which Marion Treadway was riding, and which was being driven at the time by William Treadway. Marion Treadway was 54 years old, and William Treadway, his son, a half-brother of plaintiff, was a grown man. The accident occurred at about 9 o'clock on the morning of January 12, 1919, and at the crossing of defendant's tracks and Page Avenue, St. Louis county. Page avenue extends east and west and is about 50 feet in width, and defendant's two tracks extending north and south cross it at right angles. At the southwest corner of the crossing space is a building fronting north on Page avenue, and extending back south about 100 feet. Extending north and south along the east side of this building is an open space or driveway 20 to 25 feet wide, between the building and the tracks of defendant. William Treadway, lived in this building, and the outer door of his quarters was about '(0 feet south of Page avenue. At the time in question Marion Treadway, who lived at Graniteville, Mo., was visiting William for a few days. On that morning William Treadway intended to drive to Clayton in his automobile, and Marion Treadway was going with him.
"At the time of starting the automobile stood on the driveway, headed south, in front of William Treadway's store, and they entered the car, which was a Maxwell, at that point. William Treadway took the driver's place, and Marion Treadway sat at his right, in the front seat. The automobile top was closed, except that the front curtains were raised or pushed back. William Treadway had artificial limbs (feet and lower legs presumably), but for several years has been driving an automobile. He backed the automobile north along the driveway, to the south line of Page avenue. There he stopped the automobile, still headed south and standing about 6 or 8 feet" west of the rail of defendant's west track. He looked out and back, north down defendant's track. He could see northward, for a distance of about three-fourths of a block, but saw nothing and heard nothing of an approaching car. He asked Marion Treadway, who also looked, if he saw anything, who replied that he did not. He then backed the automobile slowly into Page avenue northward and eastward in a curve, a distance between 20 and 30 feet, and brought it to a stop, headed west, at a point not far from the middle of Page avenue, and where the hind wheels of the automobile were standing in about the center of defendant's west track. At this point the automobile was struck by a large cinder car of defendant moving south on defendant's west track. A crosspiece or bolster of the cinder car struck the automobile near the middle, and on its north side, the side on which Marion Treadway was sitting. William Treadway, the driver, says, he was stopping and shifting the gear, he heard and saw the cinder car coming 15 or 20 feet away. He cried out to his father, `Look out!' Before the automobile moved, or moved sufficiently, it was struck by the cinder car, and Marion Treadway received the injuries which resulted in his death. Other features and incidents will be mentioned later as occasion requires.
"The plaintiff charged negligence against defendant, in that defendant without using any care to give warning of the approach of said work car to the crossing, or care to watch out for vehicles or persons, or care to slow up or stop said work car to avert injury to Marion Treadway, caused and suffered said car to strike and injure him, whereof he died. The petition further amplifying the charge of negligence alleged that defendant and its employees failed to stop said work car when they either knew or by the exercise of ordinary care would have known in time, by the exercise of ordinary care, to prevent the injuries and death of said Marion Treadway; that he was then and there in a place of danger; that defendant negligently failed to sound any bell, gong, or other means of warning to persons about to come on the tracks at said crossing, or to keep viligant watch for persons or vehicles on the track or moving toward it, and failed to stop said car within the shortest time and space possible and thereby avert the collision, and also that defendant negligently operated said car at a high and dangerous rate of speed. The amount sued for was $10,000.
"The defendant, after a general denial, averred that said Marion Treadway's injuries and death were the result of his own negligent, in that the autmobile in which he was seated was being operated by William Treadway, who, on account of his physical condition, was not able or competent to operate it, all of which said Marion Treadway well knew; that Marion Treadway negligently permitted said William Treadway to back said automobile suddenly and without warning upon defendant's tracks and so close to an oncoming car that said car could not be stopped in time to avert a collision; that Marion Treadway negligently permitted William Treadway so to operate said automobile, when he (Marion Treadway) knew or by the exercise of ordinary care would have seen or heard the oncoming car in time to have stopped the automobile and avoided injury; that Marion Treadway negligently failed to either look or to listen before permitting the automobile to back onto the tracks, when by the exercise of ordinary care for his own safety by looking he could have seen said car, or listening heard it, in
time to have stopped the automobile and prevented said collision.
"At the close of plaintiff's evidence and at the close of the case, defendant asked for a peremptory instruction which the court refused to give. Upon this it is urged here that plaintiff was not entitled to recover under any theory of negligence counted on in his petition, and the contentions are: (a) That plaintiff was not entitled to recover under the last chance doctrine, because there was no proof as to the relative positions of the automobile and the street car, and no showing that the car could have been stopped in time; (b) that plaintiff was not entitled to recover under the negligent speed theory for the reason that the accident occurred at an `ordinary and usual county crossing' where there was no limitation as to speed; (c) that the evidence tending to show the car was being operated at a speed of 30 or 35 miles an hour, and that the gong was not sounded, did not warrant a recovery by plaintiff, for the reason these alleged derelictions were not proximate causes of the collision, since it is urged the evidence did not disclose where the car was when the automobile was being driven on the tracks; (d) that the contributory negligence of Marion Treadway in permitting himself to be driven backward onto the track, when he saw or by the exercise of ordinary care should have seen that the driver was not looking, bars a recovery by plaintiff.
"I. It is earnestly insisted there is no showing that the car could have been stopped in time to avert a collision after the perilous situation of the automobile became or should have become apparent to the motorman. The motorman testified at length as to the relative positions of the car and of the automobile. This appears from the following:
"`Q. Tell the jury how this accident occurred and what you saw of it. A. Well, I was going south on the Creve Coeur Line to Page avenue, and when I was coming towards Page avenue I slowed down at the stop there, slowed down to about 2 or 3 miles an hour, and just as I started up on the crossing the automobile backed in.
"`Q. Where did it back from? A. It backed from the store there; when I seen the automobile, he was standing still in the alley, and I slowed up for Page avenue.
"`Q. He was standing still where? A. Right in the alley, alongside of the store.
"`Q. He was not near the tracks? A. No, sir; he was about 10 feet from the tracks.
"`Q. In this alleyway? A. Yes, sir.
"`Q. Now, that runs parallel with the tracks? A. Yes, sir.'
"And later on cross-examination he testified:
"`Q. Now, how far were you from the crossing at Page avenue when you first saw this automobile standing at the entrance or at the junction of the alley with Page avenue? A. was about 15 feet from Page avenue.
"`Q. About 15 feet from Page avenue? A. Yes, sir.
"`Q. Going from 2 to 3 miles an hour, you testified? A. Yes, sir.
"`Q. With your brakes set; is that right? A. Yes, sir; I had already let off my brakes across the crossing—started to go across when he backed in.
"`Q. Had you had your brakes "released at the time you first saw him? A. No, sir.
"`Q. The brakes, when you first saw him, were set? A. Yes, sir; they were set; he was standing still.
"`Q. You had a plain view of him? A. Yes, sir.
"`Q. And he was at the entrance of the alley to Page avenue? A. Yes, sir.
"`Q. That is on the south line of Page...
