244 Mo. 76 | Mo. | 1912
Lead Opinion
This cause has a checkered career. Going to the Kansas City Court of Appeals from the trial court it came here upon a constitutional question. Assigned to Division One of this court and there written by one of our learned commissioners, the judges of that division failed to agree upon an opinion and thus a transfer to this court. The case made runs along these lines:
Plaintiff is the widow of T. H. B. Burge, an aged gentleman, who was struck and killed by one of defendant’s passenger trains at a public crossing near Huntsville in Randolph county. The negligence charged in the petition is:
“That said agents, servants, employees and officers of defendant in charge of said locomotive and train of cars, failed to ring the bell on said locomo-■ tive at a distance of eighty rods from said crossing- and to keep the same ringing until said locomotive had crossed said highway, and that said agents, servants,, employees and officers also failed to sound the steam whistle of said locomotive at the distance of eighty rods from said crossing and to sound said whistle at intervals until said locomotive had crossed said highway.
“That said locomotive and train of cars at the time of the killing of her said husband as aforesaid, was being run by defendant’s said agents, servants, officers and employees at a high and dangerous speed which was careless and reckless upon and across said public crossing, which said crossing is and was in a thickly populated neighborhood near the city limits of Huntsville, Missouri, and which said public crossing is and was very frequently used by the public traveling between the cities of Huntsville, Missouri, and Moberly, Missouri, all of which was well known to said officers, agents, servants and employees of defendant,, then and there in charge of said locomotive and. train*85 •of cars, which, killed plaintiff’s said husband as aforesaid;
“That said public crossing is a dangerous one, •owing to the lay of the ground and the fact that there is a sharp curve in said tracks of defendant, a short •distance east of said public crossing, from which direction said train was running at the time of the killing of plaintiff’s said husband as aforesaid and owing to that reason and the further fact that said locomotive and train of cars was being run at such.a high and dangerous speed as aforesaid, by said agents, servants, employees and officers of defendant, upon and across said public highway, in a populous neighborhood, and the fact that said public highway was so frequently used as aforesaid, at the time of said killing of plaintiff’s said husband as aforesaid, it was the duty of said agents, - servants, employees and officers of defendant then and there in charge of said locomotive and train of cars, to give the statutory and other signals and to run said locomotive and train of cars at a reasonable and careful speed and to keep a sharp lookout for travelers upon or near said public crossing, all of which said agents, servants, employees and officers of defendant negligently failed to do. That said officers, agents, employees and servants of defendant in charge of said locomotive and train of cars, at the time plaintiff’s said husband was killed as aforesaid, saw, or by the exercise of ordinary care could have seen him in time to avoid killing him.
“That said train was a regular passenger train running from Moberly to Kansas City, Missouri, and was about an hour behind its regular schedule time, which fact was unknown to plaintiff’s said husband, and said train was being run by said agents, servants, employees and officers of defendant, at the time plaintiff’s said husband was killed as aforesaid, upon and across said public crossing, at an exceedingly high and dangerous speed, which was unknown to plain*86 tiff’s said husband, nor could he have known of said high and dangerous speed by the use of ordinary care, and at the time when the said buggy in which plaintiff’s said husband was driving, as aforesaid, and the horse hitched to same was on the tracks of defendant at the point where said highway crosses said tracks, said train was at a distance of not less than 340 feet from and east of said crossing, from which said direction said locomotive and train of cars was running at the time, and that before plaintiff’s said husband could get across said tracks and into a place of safety, although he used every endeavor to do so, owing to the high and dangerous, careless and reckless speed at which said locomotive and train of cars was being run by the agents, servants and employees and officers of' defendant as aforesaid, her said husband was negligently struck and killed as aforesaid, by said locomotive and train of cars.”
Answer was (1) a general denial and (2) some-three separate statements of the plea of contributory negligence. Reply general denial. Verdict and judgment for plaintiff in the sum of $2000 from which defendant appealed as aforesaid. 'In Division we were-all of opinion that there was reversible error in the case in the instructions given,, but diversity of opinion arose on the question of liability or no liability. We shall discuss but two questions, i. e., the constitutional question, which gives us jurisdiction, and the question of defendant’s liability under the admitted facts.
I. Bond, commissioner in the divisional opinion, has thoroughly and satisfactorily discussed the constitutional question involved, and we adopt his views. Pie said:
“Appellant attacks the constitutionality of the Act of April 13, 1905 (Laws 1905, p. 135), amendatory of section 2864, Revised Statutes 1899, on the ground that ‘said act-contains more than one subject, and the subjects of said act were not clearly expressed'*87 in the title thereto, and for that reason said act is contrary, to section 28, article 4, of the Constitution of Missouri.’
“This point was first raised in the supplemental motion for a new trial, which also contained a second attack on the constitutionality of the act on the assumption that its effect was to leave the amount'to he recovered, in action thereunder, to the discretion of the jury within the limit of $2,000 and $10,000. This insistence was, however, abandoned in the brief later filed by appellant, in view of the adverse ruling in Young v. Railroad, 227 Mo. 307. This leaves for disposition only the constitutional question raised in the language quoted above. The act appears to the Session Laws, supra, with caption, title, section index, enacting clause, and the first few lines, to-wit:
“ ‘damages and contributions in actions of tort.
“ ‘An.Act to amend section 2864 of chapter 17 of the Revised Statutes of the State of Missouri,'1899, 'entitled “Damages and contributions in. actions of tort. ’ ’
“ ‘Section 1. Death resulting from negligence of co-employee, officer or agent — amount of damages— who may sue for recovery.
“ ‘Be it enacted by the General Assembly of the State of Missouri, as follows:
“ ‘Section 1. That section 2864 of chapter 17 of the Revised Statutes of the State of Missouri, 1899, be and the same is hereby amended,’ etc.
“The practice of amending statute-laws by reference to the sections contained in the volumes of the. authorized revisions of the laws of this State is the established law. [State v. Doerring, 194 Mo. l. c. 408; State v. Murlin, 137 Mo. 297; State v. Brodnax, 228 Mo. l. c. 54; State ex rel. v. County Court, 128 Mo. l. c. 440-441; Ferguson v. Gentry, 206 Mo. 189.] The process by which such amendments may be made is prescribed in the Constitution, in a provision, that it*88 shall not be done by simply striking ont or inserting designated words, but, ‘the words to be stricken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof, together with the act or section amended, shall be set forth in full as amended.’ [Constitution, art. 4, sec. 34.] The act (an excerpt from which is quoted above) was enacted, as will appear from an inspection of the Session Acts, in strict compliance with the provision of the organic law and the practice sanctioned by the decisions of this court.
“This leaves only for consideration, whether the amendatory act was rendered void under the further provision of the Constitution of this State, that ‘nó bill . . . shall contain more than one subject, which shall be clearly expressed in its title.’ [Constitution, art. 4, sec. 28.]
“The first appearance of the act permitting a recovery of damages of a special nature and amount by special persons is in the revision of 1855, chap. 51, p. 647. It then bore the heading and title, to-wit: ‘Damages. An act for the better security of life, property and character.’ With some amendments it has been continued in every subsequent revision of the laws of this State. A recent amendment was- enacted in 1905. At that time the Damage Act was embraced in the revision'of the statutes in 1899, chap. 17, secs. 2864 and 2865 under the title, ‘Damages and Contributions in Torts.’ As it was amended in 1905, the act is now included- in the revision of 1909, chap. 38, secs. 5425 and 5426. The title of article first of this chapter, is ‘Damages in Actions for Torts.’
' “The original titles of acts are often discarded when the acts are afterwards inserted in the body of the revised laws. The titles prefixed to the chapters of the various revisions is done ‘by an arrangement- and heading of the general statutes authorized b.y law.’ [State v. Doerring, 194 Mo. l. c. 411; R. S.*89 1889, sec. 6610; R, S. 1899, sec. 4193; R. S. 1909, sec. 8090.] Snell titles may be made a part of tbe amendatory act by suitable words of reference contained in the beading, caption or title of the amendatory act. [State v. Doerring, supra, l. c. 412.]
“In tbe case at bar tbe title of tbe amendatory act is identical with that of tbe chapter which it proposed to amend. Hence, it is clear that if ,the matters of amendment are germane to tbe provisions of tbe section of which they are to become a part, then tbe amendatory act was not-an unconstitutional exercise of legislative power.
“Tbe'amendatory act, by specific reference to tbe section of tbe Damage Act proposed to be changed, called tbe attention of tbe members of tbe Legislature to tbe law as it bad existed for more than fifty years, and which entitled certain persons to recover a penalty from ’carriers and other persons for injuries occasioned by negligence. Pew provisions of tbe law bad been more fruitful of litigation, and tbe provisions of no statute were more generally understood by tbe people, as well as tbe law makers, than tbe one providing for such recoveries. Tbe statute bad received careful and full consideration, interpretation and enforcement by tbe courts. It bad become tbe warp and woof of tbe law governing actions for personal injuries, and tbe substance of its provisions was a matter of general knowledge. It is difficult to conceive that any legislator was unaware of tbe legislative purpose of tbe Act of 1905 after having read or seen tbe title, purposes and reference contained in tbe chapter and beading of that bill. In a similar case it was held, that a reference in an amendatory act to tbe chapter 'of tbe revision relating to ‘Dower’ carried to tbe minds ' of tbe legislators full cognizance of tbe nature and scope of tbe various provisions under that bead in tbe chapter mentioned. [Ferguson v. Gentry, 206 Mo. l. c. 195.]
*90 “The first thing which the amendatory act did was to abolish the defense of fellow-servants in actions based on the statute.- Plainly, this was not the introduction of a matter foreign to the legislative purpose expressed in the act. The next thing done was the adding of the automobile to the other dangerous agencies for negligence in the operation of which a recovery might be had. Self-evidently, this was not an incongruous subject. The third matter of amendment was the inclusion of street and electric railways in the category of other carriers. Obviously, there was no dissimilarity in the actionable character of the injury caused by negligent operation of a street and electric railroad from that inflicted by the other carriers mentioned in the statute. Fourth, the amendment provided that the word penal should be inserted in the act. It was expressly ruled that this was the character of the act prior to the amendment. [Young v. Railroad, 227 Mo. 307.] Fifth, the amount of penalty was charged from $5000 to not less than $2000' nor more than $10,000. This was directly sanctioned in the case of Young v. Railroad, supra. Lastly, there was a provision that in the case of the failure of other representatives, the administrator of the deceased might institute the action. This was merely a provision for the survival of a cause of action, and did not render the act in anywise inharmonious with the objects and purposes of the Legislature, when the original law was passed. It was not the purpose of the Legislature, prior to this amendment, to afford the beneficiaries of this section of the Damage Act the right merely to recover for injury to their property rights, but the chief object of the original law was to secure the personal safety of persons liable to suffer from' the negligent operations of dangerous agencies, by imposing a fixed penalty upon the owner or proprie- ° tor. The object of the Legislature was to redress the wrongs done to personal rights rather than to*91 property rights. It is upon this ground that it was ruled by this court, speaking through Woodson, J., that prior to the present act, the right of action for statutory damages accruing to a minor child by the ■death of his parents who perished in the same railway ■collision would not survive on the death of the child in favor of its administrator. [Gilkeson v. Railroad, 222 Mo. 173.] The ground of this decision makes it clear that the express provision contained in the act under review, for the survival of such an action to the administrator of the party entitled to sue, is a matter naturally incident to an enlarged redress under the section of the statute comprising the Damage Act, and would not be germane or proper (as contended by appellant) as an amendment to the administration law which is normally concerned with property rights. The provision of the Constitution which the amendatory act is supposed to offend has been considered carefully on many appeals. The principle to be extracted from the rulings then made is, that it must be wisely and liberally interpreted and should not be applied so as to thwart the efficiency of intelligent and salutary legislation, and that it does not forbid the inclusion in one bill under one general title of any subject naturally connected or reasonably related to each other.
“Our conclusion is, that the amendatory Act of 1905 both as to its title and as to the matter of amendments proposed was enacted therein in strict compliance with the provisions of the Constitution under review, and that it is in all respects a valid enactment, as now found in section 5425 of the Revised Statutes of 1909. The objection to the recovery in this case on the theory that the act whereunder the statute was brought is unconstitutional, is not well taken.”
II. Going now to the merits of the case a short summary of facts is required. The public crossing
The deceased came from the west along the public road on the north side of the railroad track. He was-in an open buggy, and plaintiff’s witnesses say it-was making no noise as it passed along. He was driving" at a leisurely gait with his eyes forward upon his horse. Reaching the crossing he turned south and went up this incline or embankment. One witness says that as he proceeded up the incline his eyes were fixed forward toward his horse, and he neither looked to the right nor the left. About the time he reached the tracks or was entering thereon he evidently saw the train, for several witnesses say he struck his horse as if to hurry him over the tracks. The evidence does not agree as to just when he struck the horse. One witness says the horse was four or five feet from the track when the old man raised up and struck him, and other witnesses say the horse’s feet were on the track. The horse got across and was not injured. Witnesses of the plaintiff place the speed of the train as “pretty fast,” “faster than usual,” 60 to 70 miles per hour, and 85 to 90 miles per hour.
Witnesses for plaintiff all testify to the danger signals being given. Some of her witnesses who were passengers upon the train testify that they felt the application of the air to the brakes about the time of the danger whistles, and one of them says that after hearing the signals and feeling the jar from the application of the air, a forward glance out of an open window brought to view the horse as he escaped over the tracks. The train passed west of the crossing 1700 feet before coming to a stop.
For the defendant it was shown that the train was running from 45 to 50 miles per hour; that just after the crossing signal was given at the whistling post, the engineer noticed the deceased approaching the track; that the danger signals were immediately given, and air applied to the brakes. The engineer when further asked if he did all that he could to stop the train, answered: “Everything in Gfod Almighty’s power that could be done.” On the application of the air and the warning signals he is corroborated by plain • tiff’s witnesses as above pointed out.
It is clear from the statement of facts that the deceased was guilty of negligence as a matter of law. A railroad crossing is within itself a signal of danger. The law imposes upon the traveler the duty of exercising caution at such places. He must make some effort to find out if there is an approaching train before he drives upon the tracks. Pie can close neither his eyes nor his ears. The means of self-protection given him must be used. A failure so to do constitutes negligence. In this case witnesses more unfavorably located than was deceased heard the “roar” of the approaching train. "What the witnesses heard the deceased could have heard had he been in the exercise-of due care. What they saw he could have seen by the-exercise of due care. The fact that they heard the approaching train is conclusive that he was not exercising his sense of hearing to determine whether or not. there was an approaching train. The fact that the-train could have been seen 900 or more feet east of the crossing shows that he was not exercising his sense of sight. There is no room for the presumption of due-care in this case. Such presumption is a presumption of fact, and upon the appearance of the facts in evidence the presumption takes flight, and no longer has-a place in the case. [Higgins v. Railroad, 197 Mo. 318; Tetwiler v. Railroad, 242 Mo. 178; Morton v. Heidorn, 135 Mo. l. c. 617, and cases therein cited.]
As said in the last named ease such presumption-is only applied in the absence of any evidence upon the question. In the Tetwiler case, supra, the court modified by a separate opinion the opinion of Brown,. C., upon this very question. We there said: “In this-case I only concur in the result reached by our learned commissioner. I do not agree to what he says about
In the Morton ease, supra, which was, .a will contest, and in which an instruction was condemned because it added to the scale the weight of a presumption of fact, when the facts were in evidence, this court said: “When the cause was submitted to the jury, there was no presumption of the law that the document was testator’s ‘free and voluntary act.’ There was evidence before them which all the parties and the court alike interpreted as tending to prove undue influence. Both adversary parties asked and obtained' instructions on that theory. In that state of the case it was not proper to give proponents of the will the benefit of a so-called presumption which is merely one of fact, applied in the absence of any evidence permitting a different influence. We have so often of late gone over the ground presented by the giving of such instructions, in declaring the law of negligence, that we need not repeat the argument used to indicate the vice of such declarations to a jury. We merely cite some of the decisions on that point, and add that we consider
So we say in this case, there is no presumption of due care upon the part of the deceased. The evidence shows just how and what he did. It shows that he failed to hear, when to listen was to hear, because all the witnesses heard. The evidence shows that he did not look, because it was open daylight, and to look was to see. Not only so but the evidence further shows that he looked straight ahead toward his horse, and neither turned to the right nor the left, the directions from which danger might arise. Under this state of facts, we must hold deceased guilty of negligence as a matter of law, which negligence contributed to and caused his death. There is left only the humanitarian rule and this question we take next.
III. Passing now to the humanitarian rule, how stands the plaintiff’s case? To our mind there are two satisfactory reasons for holding that no case was made even under this rule of law. Even if it be granted that other matters of evidence would tend to brilLg the case within the rule, yet there is a failure of substantial evidence that the train could have been stopped within the space at which deceased was discovered, or could have been discovered, in a position of peril. We refer to the testimony of the so-called expert placed upon the stand by the plaintiff. This expert, James A. Taggert, said that for twenty-two years he was a locomotive engineer, but that he had not been such for the last fourteen years. His testimony then further runs thus:
“Q. Have you kept pace with the improvements*97 in the last few years? A. Not altogether, a good many changes have been made in the air-bjake; of course I have not taken particular attention to things.
“Q. Do you know number thirteen which runs from Moberly to Kansas City? A. Yes, sir.
“Q. Did you ever run on this end of the. road for the Wabash Eailroad? A. Yes, sir.
“Q. How long? A. Two or three years; didn’t run a regular passenger train on this end and I used to be here once in awhile.
“Q. I will ask you to state to the jury how long, in your judgment, based upon your experience as a railroad man and your knowledge of the appliances —railroad appliances — would it take a train composed of an engine and three cars — passenger coaches —to make a stop in an emergency at sixty miles an hour, in what distance?
“To which question counsel for defendant objected, for the reason that it does not embody the state of facts proven in this case; neither does the witness show that he is qualified to answer; he is not now in the employ of the company and has not been in the employ of any company for the last twelve or fourteen years and there is no evidence that this train was equipped as they were twelve or fourteen years ago, or that this man would have knowledge of the subject sufficient to give expert testimony.”
“Q. Do you know how this train, number thirteen, was equipped about June, 1906? A. Of'course we have air on everything, here, now, freight trains and all, engines are all equipped with air.
“By Mr. Eobertson: Q. You don’t know anything about this particular train this day, do you? A. No, sir.
“By the Court: Let him answer the question.
“By Mr. Howard (To the stenographer): Please read the question.”
*98 “ (The stenographer then read the question as follows :)
“Q. I will ask you to state to the jury how long in your judgment, based upon your experience as a railroad man and your knowledge of the appliances— railroad appliances — would it take a train composed of an engine and three cars — passenger coaches — to make a stop in an1 emergency, at sixty miles an hour— in what distance?
“Counsel for defendant object to this question for the reason last above given.
“Which said objection the court overruled, and to the action of the court in overruling the said objection, the defendant, by its counsel, then and there at the time, duly excepted and saved its exceptions.
“By the witness: In an emergency — what I would call an emergency—
“By Mr. Robertson: We object.
“By the witness: In an emergency, about four hundred feet. ’ ’
Neither the question nor the answer was proper in this case, and when they are stricken from the record, as they should have been upon the motion to that effect by the defendant, there is nothing left to sustain the verdict. There is no evidence of the equipment and make up of this train. There is no evidence as to the grade of the track, nor as to the condition of the track at the time. Nor is there any evidence as to how the train was loaded. In stopping a passenger train for any purpose, due regard must be had for the safety of the passengers. This element, a very material one, is left out of the question. Other material elements as to make-up and equipment of the train, and grade and condition of track, are all left out.
In Gourley v. St. Louis and S. F. Ry. Co., 35 Mo. App. l. c. 92, it is said: “Just within what distance a train might be stopped in a given case, with safety
In Mammerberg v. Street Ry. Co., 62 Mo. App. l. c. 567, Smith, P. J., says: “The hypothetical questions, if such they may be called, were not so framed as to call the attention of the witness to a particular train, the speed it was moving and the condition of the grade at the place where the injury occurred. The hypotheses of the question were not sufficiently comprehensive. Nor did such hypothetical questions call for the opinion of the witness under circumstances and conditions similar to those disclosed by the evidence in the case. According to the rules to which reference has been made, this objectionable testimony should not have been admitted.”
So, too, has said this court, in Culbertson v. Street Ry. Co., 140 Mo. l. c. 59, whereat we said: “The witness, without any qualification, was permitted to state within what distance a train could be stopped. In what distance a train under ordinary circumstances could have been stopped is one thing and a very different thing within what distance this train could have been stopped, due regard being had to the safety1 of the train in making the ‘let-go,’ and of the safety of the passengers, at this particular place and under the peculiar circumstances after the gripman discovered Culbertson was trying to pass on the east.”
And in Heinzle v. Railroad, 182 Mo. l. c. 554, we further said: “It seems to us that the witness was clearly qualified from experience and personal knowledge of the situation to testify as an expert, but the
Again in Senn v. Railroad, 108 Mo. l. c. 151, this court through Macearlane, J., said: “So the liability of defendant depends upon whether the car could have been stopped after the first appearance of danger, and it became important to know in what distance that particular car, at that place, with the condition of the track then existing, could have been stopped. We do not think this witness was sufficiently informed of the facts, as they were stated in the hypothetical question, to make his opinion admissible.”
In Ruschenberg v. Railroad, 161 Mo. l. c. 81, we said: “Error is predicated, also, on the exclusion of an answer to the witness Meyers to the following question: ‘What means would you employ as a motorman to stop a car in the shortest time and space possible?’ The witness had testified that he had formerly been employed as motorman for four years on the Franklin avenue car line in St. Louis,, but was at the time of the trial a member of the fire department, and that a large-sized double-truck car running down a grade with a fall of one inch and three and one-half hundredths to the one hundred feet, and running at eight miles an hour on a dry track, could be stopped in a distance from forty to forty-five feet by using a brake, and if the slack was taken up could stop it in twenty or twenty-five feet. After this, he was asked
Due regard for the safety of the passengers is an element that must be considered in all such cases. "We emphasize this because upon the cross-examination of the witness Taggert, the means, which he says he would use in bringing such a train to a stop, leaves out of consideration this material element. It might be possible, a thing which we do not believe, that a train of three passenger coaches running at sixty miles an hour could be stopped in 400' feet, or “about four hundred feet” as the witness puts it, but we would not want to be a passenger on a train so stopped. Our doubts upon this point are fully justified by the evidence. Passengers on this particular train felt the application of the air to the brakes before the collision, and yet this train with the brakes on ran over a quarter of a mile, or 1700 feet before a stop was made.
This however is adrift. The gist of the matter is that this opinion of Taggert is worthless and of no probative force in the ease, and this for the reason that he had placed before him no facts upon which he could predicate a valuable opinion. This opinion being without probative force, under the facts and the law, a fatal gap appears in plaintiff’s case even under the humanitarian rule.
But we go further. If this train was running sixty miles an hour, then it made eighty-eight feet per second. Under the evidence it is clear that deceased could not have been seen, owing to the curve in the track, until the train was within 900 to 1000 feet of
IY. Whilst the evidence in this case discloses that there were a number of houses in the neighborhood of this crossing on the north side of the railroad, yet under the proof no increased use of this crossing is shown to have been occasioned thereby. The facts are that to the east of this crossing there was a coal mine, as we gather it from the evidence. This was on the north side of the track. The travel was from thence west to Huntsville, but was on the north side and not necessarily over this crossing. In fact under the evidence in this case this crossing is the ordinary and usual country crossing.
The petition lays much stress upon the rapid rate of speed. Plaintiff was impressed with that idea and some of the witnesses were evidently so impressed, when they testify to a speed of ninety miles per hour.
In the early case of Goodwin v. Railroad, 75 Mo. l. c. 76, this court held it was error upon the part of the trial court to refuse to give this instruction: “Outside of cities and towns the law does not prescribe the rate of speed of railroad trains at public crossings. ’ ’
And in the earlier case of Maher v. Railroad, 64 Mo. l. c. 275, this court said: “No conceivable rate of speed is per se negligence, except where the law of the State, or a municipal corporation, authorized to do so, prescribes a limit.” Other cases might be cited, but these suffice to amplify the rule.
Again it was the duty of deceased to look and listen before entering upon the crossing. This under the evidence he did not do. The rate of speed, although negligent, does not excuse his contributory negligence. This is true even when the train is being run in excess of ordinance speed. [Stotler v. Railroad, 204 Mo. 619.] As said in the Stotler case, had the deceased looked he could have seen the rapid rate of
The judgment in this case should be reversed outright, and it is so ordered.
Dissenting Opinion
DISSENTING OPINION.
This case was transferred from Division One to the Court In Banc, upon an opinion written by Bond, C., holding that the trial court did not err in refusing defendant’s demurrer to the evidence and in submitting the case to the jury, but that because of error in an instruction for the plaintiff the judgment should be reversed and the cause remanded. That opinion was concurred in in division by Valliant, C. J., and Woodson, J., the latter concurring in all “except what is said about the statute being penal.” Lamm, J., was dubitcmte, and Graves,' J., dissented because in his judgment the cause should be reversed without remanding. It is the opinion of the writer that the judgment should be reversed and the cause remanded for a new trial for the reasons stated in the opinion of Judge Bond, and further that the judgment should not be reversed without remanding, for the reasons stated in the same opinion.
The opinion of' the court herein reverses the judgment without remanding and from that disposition of the case I respectfully dissent. If the conclusion
“It is next insisted that the demurrer to the evidence at the close of the trial should have been sustained. In considering this assignment of error, we must regard ihe entire testimony from the most favorable standpoint to plaintiff, since the defendant waived its demurrer at the close of plaintiff’s evidence by thereafter putting in its own testimony. [White v. Railroad, 202 Mo. 539.] In substance, the petition alleged negligence arising out of conjunctive acts. The testimony for plaintiff tended to prove .each and all of these allegations. The evidence of both parties tended to prove that plaintiff’s husband was seen driving across the track by the fireman and engineer when he was four or five hundred feet ahead of the train. There was also evidence tending to show that a similar train could have been brought to a standstill within that distance. The evidence as to the failure to sound the bell or blow the whistle was positive, and that of itself was sufficient to make out a prima facie case for plaintiff. [R. S. 1909, section 3140; McGee v. Railroad, 214 Mo. l. c. 544-545.] Hence, unless the deceased is shown by the entire testimony to have been guilty of negligence which directly contributed to his own injury, the case was properly sent to the jury. The only evidence, based on the actions of the deceased, which tends to show that he had any knowledge while driving across the track that a train was approaching is, that he rose in his buggy, in the act of crossing, and lashed his horse in a fruitless endeavor to escape being struck by the train. The train was one which ran according to a fixed schedule,
