Fеlix Albertson was a guest in William F. Elam’s 1938 Plymouth sedan when it ran into an oil tank car standing on the Wabash crossing in Henrietta, a village in Ray County, about 11:20 p. m. on the 18th day of April 1947. To recover damages for his resulting injuries Albertson instituted this action against the Wabash Railroad and William E. Wolfe, a flagman. At the close of the plaintiff’s evidence the trial court directed a verdict in favor of Wolfe, and the plaintiff has appealed from that judgment.
*699
A jury lias found that Albertson’s injuries were proximately cаused by [186] negligence on the part of the railroad, and, accordingly, awarded him $15,000. The railroad has appealed from that judgment. Upon the railroad’s appeal the primary question is whether there is evidence from which the jury could reasonably find the existence of special circumstances rendering the crossing peculiarly hazardous, if not Albertson, even though a guest, is not entitled to recover; and, conversely, if reasonable minds could differ as to thе sufficiency and probative force of the evidence, the railroad’s liability and Albertson’s contributory negligence were questions for the jury to resolve. Three of the leading and contrasting cases in this jurisdiction are State ex rel. Thompson v. Cave,
Elam and his brother-in-law, Yanderpool, lived on farms in the Cowgill community. On April 18th Elam was busy sowing oats. About 9:15 he and Yanderpool picked up their friend Albertson in Cowgill and the three of them started to Biсhmond, twenty-seven miles distant, so that Elam could talk to a man by the name of Yates about renting some land. Just before they reached Bichmond they picked up two young women “hitchhikers,” and in Bichmond they all stopped in the “restaurant taxicab stand” and drank coffee and cokes. Elam was unable to locate Mr. Yates by telephone, the girls were going to Lexington, and Albertson thought he might talk to a night watchman at the sales barn in Lexington about some posts his son-in-law had left therе for sale, and Elam “got to talking about he ought to take the girls over there” and, everything considered, they decided to drive to Lexington. As they were leaving the village of Henrietta on Highway 13, about 11:20 p. m., the Plymouth sedan ran into an oil tank car, the sixth of fifty-nine cars in a freight train, standing on the Wabash crossing. The train had been stopped on the crossing about five minutes and was there for the purpose of “taking on water. ’ ’
The oil tank car, 35 feet 6 inches long, was so stopped that its wheels were at the furthermost edges of the highway crossing. The cylindrical tank car was painted black and upon its sides, in white, were the letters “G A T X” followed by five numerals 7 inches in height and spaced 9 inches apart. The brake cylinder and reservoir for the brakes beneath the car were 1 foot and 4 inches and 1 foot and 8y2 inches above the ground, and the running board around the tank was 3 feet 9y2 inches above the ground, while the height of the tank -was 11 feet and % inches from the toр of the rail. The solid beam under the tank was 2 feet 3% inches from the top of the rail.
Highway 13, a concrete roadway, goes directly through Henrietta and in its southern outskirts are the tracks of the Santa Fe Bailroad. *700 There are four or five of these tracks, a main track, a passing track and two or three switch tracks. Three hundred and sixty-one feet south of the Santa Fe tracks, at the southernmost limits of the town, a single track of the Wabash Railroad intersects the highway and thеre is a slight downward curve, four degrees, in the highway at this point. There are no warning or crossing signs or signaling devices on the north side of the Wabash tracks. There is a cross-armed signal on the south side of the track but that signal was obscured by the train. Between the Santa Fe tracks and the Wabash tracks there is an oil station and a hotel on the west side of the highway. There are no lights at the Wabash crossing*. However, at the time of the collision, there was a light on the front of the hotеl, sixty-four feet north of the crossing, and there was a street light on a pole still farther north of the hotel, and there was a light in the oil station nearer the Santa Fe tracks. Ten feet south of the Santa Fe tracks is a watchman’s shanty used by the flagman, Wolfe. It was his duty to “flag” both the Santa Fe and the Wabash crossings.
The brakes on Elam’s Plymouth had been recently overhauled and were in good condition. The seal beam headlights were also in good condition but on that night, because [187] of mist and fog, illuminated the highway “not much over 50 feet on brights” and on “dims wouldn’t have reached out that far.” As the freight train came into Henrietta Wolfe stood about twenty-five feet north of the Wabash tracks and flagged the crossing with his electric lantern until the train blocked or covered the crosing. As the train blocked the crossing he turned and walked back towards his shanty and was close to it when the Plymouth sedan passed him traveling at a speed of about twenty-five miles an hour. He heard the noise and turned around as the automobile crashed into the tank car 350 feet away. Elam, Vanderpool and Albertson testified that it had been raining and that at the time of the crash there was some moisture. Albertson said, “Some fog there,” Vanderpool said, “It was misting and foggy,” and Elam said, “It was misting and raining.” (The railroad’s witnesses testified that it was dark and “cloudy” but that there was no moisture or fog. There was also testimony that the three men in the automobile had been drinking mint flavored gin.) The driver аnd occupants of the automobile said that the one windshield wiper was working and that they were all looking straight ahead and could see for a distance of thirty to thirty-five feet. They were not familiar with the crossing, saw no lights or signals, slowed down and crossed the Santa Fe tracks at a speed of about twenty-five miles an hour and after they had traveled about 300 feet and were within ten feet of the crossing, some said two automobile ear lengths, for the first time saw the tank cаr. It was then too late, after a quick application of the brakes, to avoid crashing into the tank car. Because of the downgrade the automobile lights were not focused directly upon the tank *701 car, and there was testimony by an expert, an “illuminating engineer, ’ ’ that the black tank car reflected but a small percentage of the light.
The railroad analyzes the circumstances and insists that they do not constitute special circumstances rendering the crossing‘peculiarly hazardous and, therefore, there was no breach of duty or negligence upon the part of the railroad. A railroad has the right, to stop its trains upon public crossings, and, in normal circumstances, the presence of the train upon the crossing is adequate notice to the traveling public that the crossing has been preempted and additional signals of warning are not required. Dimond v. Terminal R. Assn.,
It has been determined that the mere downward slope of a public highway toward a crossing, naturally causing automobile lights to be deflected downward and beneath a standing boxcar, and the mere dark color of the surface of the road and the drab color, of the boxcar are not such circumstances as to render an occupied crossing unusually hazardous within the meaning of the rule. State ex rel. Thompson v. Cave, supra. The mere fact that the driver and occupants of the automobile were unfamiliar with the crossing and that the highway was heavily traveled are not circumstances making an obstructed crossing peculiarly hazardous. Atchison, T. & S. F. Ry. Co. v. Templar,
To illustrate, in Carson v. Baldwin,
In this case we have the presence of the detailed facts of the standing oil tank car, black in color, a slightly curving downgrade highway, no warning signals of any kind, and а cloudy night, if not misty and foggy. But these are not the decisive factors upon which reasonable men might differ as to whether they constituted special circumstances rendering the crossing peculiarly hazardous. In addition to the presence of these important factors there are other compelling circumstances creative of the illusion of safety to motorists properly using the highway. ' As we have said, the Wabash crossing is at the southernmost edge of the town оf Henrietta, it is in fact the “city limits” of the town, and the beginning of “open country.” The motorist, in *703 traveling Highway 13, and the highway is the principal street, crosses the streets and passes the houses and business buildings of the village, and then crosses the four or five tracks of the Santa Fe Railroad. Three hundred and sixty-one feet beyond the Santa Fe tracks, unexpected to the uninitiated, is the single, unlighted, unguarded Wabash crossing where even a careful driver might reasonably expect open сountry and an open road. Or, if the crossing is occupied by a black oil tank car on a cloudy or foggy night, a warning from a flagman or some member of the full train crew. All in all reasonable minds could certainly differ as to whether these special circumstances created an illusion of safety and thus rendered the occupied crossing peculiarly hazardous and, therefore, the railroad’s negligence, including proximate [189] cause, and the plaintiff’s due care were all questions for the jury to resolve. Carson v. Baldwin, supra; Elliott v. Missouri Pac. R. Co., supra; Poehler v. Lonsdale & Kurn, supra; Homan v. Missouri Pac. R. Co., supra; annotations 15 A. L. R. 901; 99 A. L. R. 1454; 161 A. L. R. 115.
As indicated, the plaintiff’s evidence, responsive to the requirements of the rule, tended to show special circumstances rendering the crossing “unusually” or “peculiarly” hazardous. Unusually or peculiarly hazardous crossing in the circumstances is the very essence of the plaintiff’s cause of action аnd the essential, ultimate issue to be found by the jury. Carson v. Baldwin, supra; State ex rel. Thompson v. Cave, siipra. The plaintiff’s evidence consisted of photographs, plats, expert testimony, the testimony of the plaintiff and the occupants of the automobile as well as the testimony of others familiar with the crossing. In addition, the plaintiff called as a witness the Secretary of the Public Service Commission of Missouri and through him introduced in evidence as an “admission” an application filed with the Commission in 1941. The railroad insists that this evidence was improperly admitted, that it was prejudicial, and because of its reception in evidence that it is entitled to a new trial. The plaintiff contends that the application was an admission by the Wabash that its crossing was inadequate, unsafe and hazardous and therefore competent and admissible. The plaintiff also argues that if the document was not competent that it was merely cumulative and therefоre harmless error.
The application before the Public Service Commission is styled “In the matter of the application of the State Highway Commission of Missouri, The Atchison, Topeka and Santa Fe Railway Company, and the Wabash Railway Company and Norman B. Pitcairn and Frank C. Nieodemus, Jr., Receivers thereof, for permission to effect an overhead crossing and for permission to close an existing grade crossing, Applicants, vs. City of Henrietta, Deféndant.” The application to the Commission recites that the State Highway Commission has charge of the highways of Missouri and that the two railroads *704 operate railway systems, portions of which are in the vicinity of the proposed crossing and “That, pursuant to the ‘Rules and Regulations for Carrying Out the Provisions of Section 8 of the Act of June 16, 1936 (Public 686 — 74th Congress) which Relate to the Elimination of Hazards to Life at Railroad Grade Crossings, in accordance with the.Provisions of the Federal Highway Act,’ the aрplicants propose to construct an overhead crossing in Ray County, in the City of Henrietta, where Route 13 crosses the tracks and right-of-way of the Railroads to replace an existing grade crossing which has become inadequate and unsafe for present-day traffic.” The application then recites that the proposed crossing is feasible, practical, economical and that the parties had agreed upon the manner of the crossing and its expense, and “That proposed overhead crossing will replace and eliminate, in so far as public 'travel is concerned, a dangerous grade crossing located approximately three hundred (300) feet west of proposed overhead crossing, and that the safety and convenience of the traveling public require the closing and abandonment of said dangero%is¡ grade crossing upon completion of proposed overhead) crossing and highway at said place.” There was a prayer for consent to the construction of the overhead crossing and “that the Commission order said dangerous crossing closed and abandoned. ’ ’ The application was signed by the chief engineers of the two railroads and the Highway Department’s engineer of grade separations.
Unless excluded by some rule of policy or principle of law, any evidence that is logically probative, including admissions, is competent and admissible. An admission, in general, is a conscious or voluntary acknowledgement by a party of the existence of certain facts relevant to the cause of the party’s adversary, a statement against interest, unfavorable or inconsistent with the facts now claimed by the party making the statement. 31 C. J. S., Sec. 270, p. 1022. The basis of the admissibility and competency of admissions is their character or quality of inconsistency. [190] 4 Wigmore, Evidence, Sec. 1048, p. 2. The basic question here is whether the aрplication introduced in evidence possesses the required quality of inconsistency.
The application involved here was not introduced in evidence for the purpose of showing knowledge upon the part of the railroad, whatever the condition of the crossing, with or without cars across it, the railroad admittedly had knowledge of the fact. Poe v. Chesapeake
& O.
Ry. Co.,
Upon the plaintiff’s appeal as to the flagman, it is urged that the “Plaintiff’s evidence showed defendant Wolfe was employed by the railroad to protect the public at the crossing, and although he saw the apрroaching automobile in which plaintiff was a passenger, he failed to give any warning and so was guilty of actionable negligence,” and therefore the court erred in directing a verdict in his favor at the close of the plaintiff’s evidence.
As to Wolfe, the petition set forth his employment and duty as a flagman, ‘ ‘ of flagging with a lighted lantern or otherwise automobiles approaching and using said crossings and warning the drivers and occupants thereof of the approach of trains to said crossings and of danger from trains using said crossings.” Specifically the petition pleaded that “on said occasion defendant Wolfe before said automobile reached said vicinity had flagged said Wabash crossing and the approach of said Wabash train, and thereafter negligently withdrew from said dark and unlig'hted crossing and said unlighted dark standing ear thereon and walked toward said Santa Fe tracks and abandoned said Wabash crossing and the matter оf the safety of persons
*706
in automobiles approaching the same and negligently and in violation of his duties failed to warn or apprise those in said automobile of the presence of said dangerous and dark obstruction on said unlighted crossing, although he and defendant railroad had undertaken and assumed said duty and customarily [191] performed the same, * * *. ’ ’ The jury could reasonably find from the evidence of both the plaintiff and the defendant that the facts of the ocсurrence and of Wolfe’s conduct were as set forth in the petition. The only difference in point of view is that Wolfe took the position that “We were to protect the public when a train was approaching.” Tie said that it was his duty, in accordance with his employer’s instructions, “To protect the crossing until it was blocked, until the train blocked the crossing, covered, in other words.” It was his interpretation of his instructions, once a train occupied the crossing, that his dutiеs were at an end and so, as the train entered upon the crossing, he started walking towards his shanty, three hundred and fifty feet away, and the automobile passed him as he approached the “flag stand.” In these circumstances his instructions, particularly as interpreted by him, were not the whole measure of his duty to the public. It was indeed his duty “to protect the public when a train was approaching the crossing,” and it would not be unreasonable for the jury to say, since he was аware of the Plymouth automobile’s approaching the occupied crossing at a speed of twenty-five miles an hour, that he was also under a duty to the occupants of the automobile to 'again signal with his lighted lantern even though, under his instructions, he could walk away and leave the standing train unguarded. Burrichter v. C., M. & St. P. Ry. Co., 10 F. (2d) 165; 2 Restatement Agency, Secs. 350, 353, 354. Despite the distinctions between nonfeasance and misfeasance (Giles v. Moundridge Milling Co.,
The judgment against the Wabash Railroad Company is reversed and remanded and the judgment in favor of Wolfe is reversed and remanded.
The foregoing opinion by Barrett, C., is adopted as the opinion of the court.