— I. It is certain that these parties have had a day in court. There have been two verdicts before different judges, and two appeals have been taken, upon which five arguments have been heard. The opinion on the first appeal is found in
It is true that no statute regulates this subject; that this court is not bound to respect its opinion given upon a first appeal when others are taken, yet I do not think that its decisions sustain the position of counsel.
Judge Black, speaking for the court, says, in Keith v. Keith,
Judge Macfarlane, in Gwin v. Waggoner,
I will notice two cases which this court held to be exceptions to the general rule. Hamilton v. Marks, 63 Mo. involved the law of negotiable paper, and Judge Wagner said (p. 172) : “But, in view of the fact that subsequent decisions of this court, though not noticing or professing to overrule the decision in this case, are, in my opinion, inconsistent with it, and considering the great importance of having some settled and stable rule in reference to a question which so vitally concerns the business transactions of the whole community, it is deemed admissible to depart from the usual practice and consider the question again.”
Also the case of Wilson v. Beckwith, 140 Mo., where Judge Gantt says (p. 369) : “We are urged to reconsider and overrule the opinion announced on the former appeal in this case. In view of the gravity of the question involved and the consequences that must follow our adherence .to the ruling therein made, we have thought it proper to examine again the reasoning upon which that decision is based. In so doing we inaugurate no new practice in this court. In the recent case of Bird v. Sellers,
The rule from these decisions, it seems to me, can be stated in this way: If neither the evidence nor the insfcractions have been materially changed upon a retrial, then the opinion of this court is the law of the case upon another appeal as to all points considered and actually decided, where they have been fairly presented — no mistake having been made in regard to the record in the case — and where no decision of this court has been overruled inadvertently.
When a case like this is reversed and remanded, it is in effect a direction to the court to retry it according to the law as declared in the opinion, and to decline to do so, would at least subject the trial court to criticism.
Instruction number 1 was given at each trial and there was no material change in the evidence upon the question of defendant’s negligence, hence under this rule, the opinion on this subject is the rule of the case.
II. Plaintiff lived upon a farm about five miles from Eich Hill. She left home about 8 o’clock a. m., and was hurt about an hour afterward at a point where the tracks of defendant crossed a county road — one of the principal roads leading into said place. The day was clear, her team was gentle and the crossing was well known to her. These tracks cross the road at a right angle, or nearly so, running east and west. There were two switch tracks which' came together at the crosing. The switch tracks were south of the main track, and it was twenty-five feet from the south line of the main track to the switch track. At the time plaintiff was hurt, she was going north. West of the crossing, and standing along one of the switch tracks sixty-four feet, was a coal platform seven feet high. The east end of the platform was one hundred and nine feet from the middle of the road. .Twenty-five and one half feet west of the platform and to the south of it, wras an engine house into which ran one of these switch tracks; its front was toward the crossing, and it had a depth east and west of sixty-three and four-tenths feet. This crossing was near Eich Hill and the defendant had yards upon both sides of if.
The conductor says that after he left the Eich Hill depot, he took some empty cars, so that when he passed the Missouri Pacific crossing — which was from a quarter to a half of a mile west of the engine house — his train was as follows: Eirst the engine and caboose, next three coal cars and then the five box ears. It was down grade from this point to the end of the yards. Just after, to use his language, leaving this Missouri Pacific crossing he cut off the five box cars and got upon the forward car. He was alone;
The conductor says that when he first saw plaintiff the brakes Avere not set and that he began to set them within one hundred feet from the crossing, and in regard to the effect of setting .these brakes, he says: “I suppose it did check
What is the law upon these facts? The court, speaking upon this subject in Railroad v. Converse,
In Hanlon v. Railroad,
Judge Black says in Stepp v. Railroad,
Judge Norton says in Petty v. Railroad,
In Gurley v. Railroad,
In Railroad v. Barnett,
It is clear from the dissenting opinion of Judge Sherwood, that Judge Black was mistaken when he defined that which was done to be a running or flying switch. If after the engine and caboose had crossed the public road, the coal oars had been cut off while in motion and their speed slackened, or that of the engine increased, so that the latter could pass a switch on the main track, in time for it to be thrown, thereby sending the coal cars by their own motion upon the switch track, a running or flying switch would have been made. But as the facts were stated in the majority opinion, it seems to me that the misnomer did no harm, as the elements of negligence in each case are the same. The supreme court of Illinois, in Railroad v. Hammer,
It is true, as Judge Sherwood says, that most of these cases relate to city crossings. But certainly it can not be that the law has a greater regard for the man in the city than the one in the country. The principle is the same in each case. The law in each ease seeks the same object, viz., to give the traveler notice of and to protect him from the passing train. It seeks in each ease to compel the railroad to give him an effective warning, for a warning is of no use if it does not warn the one for whom it is intended. It is true that in a city it is more difficult to give that warning, by reason of the many tracks and trains passing on the same in opposite directions, with bells on several engines ringing at the same time, and on account of various obstructions as well as smoke, dust and a variety of noises, hence greater care must be taken by a railroad in a city than in a country. In Railroad v. Converse, supra, 474, the court said: “The country road upon which the plaintiff was traveling was not, it is true, much used by the general public. But that fact only affects the degree of care the defendant was bound to observe, and does not establish a right to have its cars approach the crossing, where the plaintiff was hurt, and over which the public were entitled to pass, as if there was no highway there at all.”
When defendant crossed the road it was operating “a daugerous agency,” but it was a legal one and no one could complain so long as it was used so “as not unnecessarily to interfere or abridge the rights of the traveler upon the roád.” To save trouble, however, the defendant let these five cars come down across this road by their own momentum, with no engine at either end, so that no bell could be rung or whistle
In the case of Railroad v. Matthews, 7 Vroom, in which all eleven of the judges agreed, the opinion seems to me a conservative one, the court says (p. 53é) : “Under usual circumstances in the open country, they can run as many trains and at as great a rate of speed, as are consistent with the safety of their passengers. They are not called on to keep flagmen under ordinary circumstances, at cross roads, nor to give any other notice of the approach of their trains than those signals that are prescribed by statute. . . . But while I thus say that these additional burthens can not be imposed by the court upon these companies, I also say at the same time and with quite as much emphasis, that the companies may, by their own conduct, impose such burthens *on themselves. If one of them choose to build its track in such a mode as to unnecessarily make the use of a public road which it crosses, greatly dangerous, I think such company, by its own action, must be held to have assumed the obligation of compensating the public for the increased danger, by the use of additional safeguards. The reasonable
If a locomotive were to cross a road with no bell or whistle, but with a man in front yelling and whistling, all would declare it to be a puny warning compared with the statutory one; “a desperate makeshift in such a dangerous emergency,” to use the language of Ward v. Railroad, supra. When a bell is rung or whistle sounded all know at once that it is a warning; there can be no mistake. This can not be said of the yelling and whistling of a man. In Ernst v. Railroad,
What the defendant should have done under the circumstances is not for me to say. [Burger v. Railroad,
III. The serious question to me is that of contributory negligence. This is a matter of defense, unless it appears from the evidence of the plaintiff. [Hudson v. Railroad,
There was some new evidence on the retrial upon this subject. On account of my respect for the learned counsel of appellant who have done a world of work in this case, I will review the evidence, though I am conscious that my opinion is already too long.
There are six witnesses besides the plaintiff who testify about the accident. The evidence of plaintiff is far from satisfactory and it can not be reconciled. It may be that the part she took.in this collision was not an aid to her memory. “I saw the engine and ear pass, and of course I drove across the road.” “Then of course I started on to go across.” “Oh, the train was gone. Then I started on, I knew no more.” On examination in chief she says she did stop “to see if anything was coming. I could not see anything, nor hear anything.” She says she does not remember how far
On the part of the defense, besides the conductor, the testimony by those who saw the accident, was as follows:
One who was four hundred and fifty feet away heard the hallooing, supposed it was made by the conductor, saw him on the cars, which he first saw by the engine house; plaintiff was then from eighty to one hundred feet from the track; that just before she got to the crossing she slapped the horses with the lines. He didn’t see her stop, her team was walking, and as she was coming to the crossing he thinks she was looking toward the engine which had gone by; that her head was turned in that direction. A witness who was to the north of the track heard the hallooing by the conductor, saw the plaintiff go on the track, saw her look toward the box car; she slapped her horses and looked to her as if she wished to commit suicide; she did not see the plaintiff stop. The conductor says that when he got the second brake set plaintiff was crossing. “I didn’t see her look either one side or the other until her horses commenced to cross the first track.......She looked toward me and saw the cars and commenced slapping the horses with the lines, like that.” He did not see her stop. Another witness some distance away saw plaintiff when she was hurt; saw her drive
Plaintiff also introduced evidence tending to show that there was coal upon the platform which came above it, and that there were box and coal cars standing on the switch tracks near the engine house. There was a great variety of •evidence by many witnesses tending to show that from various points one could see, and that one could not see, cars .approaching the track from the west.
Now what could the jury have fairly found from this evidence conflicting as it is? The evidence tended to show that plaintiff heard the engine coming and stopped about one hundred feet from the crossing until it passed; that from that point to the crossing her line of vision to the west was, to some extent to say the least, obstructed; that she slowly drove to the crossing, looking to the east at. the engine which had passed, and which had the ears attached in such a way as to lead one to believe that it might leave a part of them and come back soon; that when she got upon the crossing, for the first time she saw the box cars bearing down on her; that she became excited and in her excitement did the wrong thing; that she ought to have stood.still on the track, or between the tracks where she was; that instead of doing this, she hit her horses and got in front of the moving cars .and was hurt.
It seems plain to me that the well known rule of “stop, look and listen” which must govern those who approach railroad crossings in vehicles, was not laid down for such a •case as this, and that it does not in any way impair that rule by holding this case to be an exception.
This court in Jennings v. Railroad,
IV. If plaintiff was thrown off her guard by the neglect of defendant or was lulled thereby into a sense of secu
It seems to me that the authorities are all one way on this subject. [Seigrist v. Arnot,
The jury were instructed that the conduct of plaintiff must have been that of an ordinarily prudent person under such circumstances. Judge Gantt., speaking of this rule in Stanley v. Railroad,
V. Defendant asked twenty-nine instructions. They were all drawn with great care and skill, born of great experience in this kind of cases; counsel can hardly expect me to discuss each one of them. It would not comfort them, and certainly it would not benefit the profession.
“And if the instructions taken as a whole presented the-issues fairly and were not misleading and were not calculated to mislead the jury, it was all that was necessary.” [Henry v. Railroad,113 Mo. 536 .]
Counsel complain because number 1, given at the'instance of the court, told the jury that they might “consider what influence or effect, if any, the passing of the engine and attached part of the train in question, as the same passed, would have upon the mind and conduct of a prudent person placed as she then was.”
They say it was a comment on the evidence. It may be-true, as was said by Judge Gantt in Spillane v. Railroad,
YI. Counsel have argued with great earnestness- another point, and for fear it may be due to them to mention it in this opinion, I give it in their words: “That, whether Mrs. Baker stopped or looked or listened or whether she did not do so, the testimony shows beyond any question that, if
Her evidence does not show to me that she was a long-way off when the engine passed. Her evidence on this point is so vague and contradictory that no one can tell from it where she was when the engine passed. It is so thin on this point that it will not bear an instruction. [Powell v. Railroad,
Counsel do not admit that plaintiff did actually stop just before she went upon the tracks. Their answer says she did not stop at all, and the evidence clearly shows that she did not stop just before she attempted to cross, but they claim that inasmuch as she contradicted herself on this point, and swore to what was not true, that nevertheless this tends to show that she was not confused when she went upon the tracks. In other words, that she must fail to recover on account of the neglect of defendant, because she has made this mistake in her testimony.
I thinl?; no weight should be given to this false testimony for any purpose whatsoever. The most that can be said is that her testifying in this way, may possibly be due to her confusion, which existed at the time of the accident.
In my opinion the judgment should be affirmed. It is so ordered.