delivered the opinion of the court.
On the trial in this case in the court below appellee, as the administratrix of the estate of her husband, recovered a judgment for $5,000 damages in an action on the case against appellants. The appellants consist of the father and three sons who were partners in the trucking business. The truck was being driven by Angelo Cordera alone. The deceased was the engineer on a passenger train operated by the C. O. C. & St. L. By. Co. The first three counts of the declaration charged that Angelo Cordera on April 16,1928 drove a truck owned by the defendants in a northerly direction on the hard road known as route No. 4 toward where said road crosses the tracks of said railroad cоmpany; that plaintiff’s intestate was a railroad engineer employed by the railroad company and was driving a locomotive attached to a train of cars proceeding to St. Louis and while it was going in a westerly direction at the intersection of the road and the railroad tracks Cordera so carelessly and improperly drove and managed the truck that the train struck the truck, the engine was derailed and plaintiff’s intestate was killed. The sеcond count charges that Cordera drove the. truck in question just before the collision at a speed of 20 miles per hour which was greater than the statutory rate of speed which he was permitted to use. The third count chаrges that Cordera failed to reduce the rate of speed of the truck to 10 miles an hour as required by statute and that the load thereon was greater than the weight permitted by the statute. The last three counts are not abstrаcted except with the statement that they charge wanton and wilful negligence.
The railroad tracks run northeasterly and southwesterly and cross the State highway No. 4 at a point about two miles southwest of the Village of Livingston. This is a country crossing and is not within the limits of any incorporated town, village or city. Angelo Cordera was proceeding from St. Louis to Benld in a truck loaded with merchandise. The truck weighed over 9,000 pounds and the load of merchandise 7,000 pounds or three and one half tons. The tracks of the railroad ran in a straight line as did also the highway. The tracks crossed the highway at an angle of practically 45 degrees so that they would be more or less in front of a person approaching the crossing from the south. There was a railroad crossing sign located 325 feet south of the crossing. Nearer the crossing was the State stop sign. There were also four sets of black and white painted stripes оn the highway, the first being 119 feet south and the fourth 416 feet south of the crossing. The surrounding country was practically level and the fields in the vicinity of the railroad tracks and the highway were planted in wheat which at that time was but a few inches high. At a point 250 feet south of the south rail of the southbound railroad track a train could be seen 3,500 feet east of the crossing. At a point 200 feet south thereof a train could be seen as far as the town of Livingston, a distance of about two miles. From a point 348 feet south of the tracks the view was unobstructed toward the east for 2,500 feet. The only obstruction to the view from any of these points was a line of telegraph or telephone poles. The train at the time of the collision was running between 50 and 60 miles per hour in a southwesterly direction. Angelo Cordera was driving north on the highway at a speed of about 20 miles per hour. When Angelo Cordera reached the first black and white diagоnal lines on the pavement the evidence is that he looked east and west and saw no approaching train. He did not slacken the speed of the truck in any way but ran the same onto the crossing where it was hit by the engine and the collision caused the derailment thereof resulting in the death of plaintiff’s intestate. All the above facts are conceded and undisputed. It is proved by a manifest weight of the evidence, not only by the train crew but by a number of disinterested witnesses, that the whistle on the engine was blown for the crossing and that the bell thereon was ringing. There is no evidence that Angelo Cordera looked to the east or west to see whether a train was coming exceрt at the time when he approached the black and white diagonal lines painted on the highway which were located 416 feet south of the crossing. The truck was equipped with solid rubber tires and had a gross weight with its load of more thаn 12,000 pounds and under section 23 (3) of the Motor Vehicle Act, Cahill’s St. ch. 95a, If 24, its speed was limited to 12 miles per hour, and section 145b of the Eoad and Bridge Act, Cahill’s St. ch. 121, If 161, provides that the person controlling the movement of any self-proрelled vehicle upon approaching any highway crossing or a railroad at grade shall reduce the speed of such vehicle to one not to exceed 10 miles per hour and that at all grade crossings at which “stop” signs are placed shall bring such vehicle to a full stop before proceeding over the railroad tracks. There is no rule of law that it is negligence to run a railroad train at a high rate of speed through open country and Cordera, the driver of the truck, could not assume that a train might not approach this crossing at a high rate of speed. He violated the law in not stopping his truck when he came to the stop sign and also in driving it at 20 miles an hоur. If he had looked at any point within 250 feet of the crossing he could have seen the approaching train for a distance of 3,500 feet. As was said in the case of Greenwald v. Baltimore & Ohio R. Co.,
It is urgеd by counsel for appellant that the court erred in refusing to exclude the testimony and to direct the jury at the end of the plaintiff’s case to find the defendants not guilty and also in overruling a motion made to exclude all the evidеnce in the case at the end of all the evidence. The latter motion was first directed to the evidence under all the counts which was correctly refused by the court as there was ample evidence to sustain the first thrеe counts of the declaration. The motion to exclude the evidence under the individual counts was limited to the sixth count which charged wilful and wanton conduct. This motion was also overruled. This count as before stated has not bеen abstracted but we assume from the statement in the abstract hereinabove referred to that it was substantially the same as the fourth and fifth counts. Ordinarily whether a party is guilty of wantonness and wilfulness under the evidence is a question of fаct for the jury. Bremer v. Lake Erie & Western R. Co.,
Counsel in their statement preceding their brief make the following statement: “We also respectively present that when all the circumstances of this case are considered, it was error on the part of the trial judge to refuse the second instruction (rec. p. 211) which was asked for by the defendants and refused by the court.” In the whole statement, brief and argument of counsel for appellant, this is the only reference to either the аbstract or the record where either the evidence or the instructions might be found. It is a rule of this court that all references to the evidence and matters presented to be considered should be designated where the sаme might be found in the abstract. We have, however, examined the page of the record referred to and find that there are two refused instructions on said page, the first is an abstract proposition of law stating that it was the duty of plaintiff’s intestate while driving the engine and train of cars over a public road crossing to regulate the speed thereof with proper regard for public safety and the rights of those persons who might lawfully be traveling along and uрon the public highway. The other refused instruction attempts to set out the rule in regard to the burden of proof. Neither instruction is identified by number nor is the instruction referred to mentioned again in the argument. Counsel for appellee аssume that refused instruction No. 2 as mentioned is the first refused instruction on said page of the record. If they are right in this it was rightfully refused as being a mere abstract proposition of law and not applied to any of the facts in the case. However, we have no way of determining which instruction is referred to.
There is no reversible error in the record and the judgment' of the circuit court is affirmed.
Affirmed.