Plaintiff recovered a judg.ment for injuries to his person and to his team and wagon and its contents as a result of a collision at one of defendants’ railroad crossings in Newton county. He was struck by a northbound combination baggage and passenger coach propelled by a gasoline electrical motor. Plaintiff in his petition charged in three counts three acts of negligence on the part of the defendants. The first is based on a failure to give the statutory warning signals. The second is based on the humanitarian doctrine. The third is based on a failure to provide a proper railroad crossing.
The defendants’ answer was a general denial coupled with a plea of contributory negligence.
At the close of the evidence defendants offered three instructions in the nature of demurrers to the evidence on each of the three counts, which were by the court refused. At plaintiff’s, request the court gave instructions predicated on the negligence alleged in the three counts and submitted the case to the jury. A verdict was returned for the plaintiff on the first count which was the one based on the failure to give the warning signals. No express verdict whatever was returned on the second and third counts.- The
There is substantial evidence in this record that the statutory warning signals were not given. Therefore, the verdict of the jury returned on the first count must be sustained unless the plaintiff was guilty of contributory negligence as a matter of law. A review of the evidence will determine this question.
Plaintiff, a young man twenty-seven years of age, whose eyesight and hearing were good, driving two horses hitched to a wagon covered with canvas similar to a mover’s wagon at about nine o’clock in the morning of a clear day approached from the south a railroad crossing on a county road. The dirt road on which he traveled runs north and south. The rail-' road coming from the southeast crosses the dirt road at an angle of about forty-five degrees and continues in a northwesterly direction. The dirt road crossed the railroad in a straight line, which made the right-hand front wheel of plaintiff’s wagon strike the first rail of the railroad at an angle of about forty-five degrees, and before the left-hand front wheel of his wagon would strike the rail. The same thing would occur as to the back wheels of his wagon. The evidence is undisputed that the approach to the rails begins at' a point about seventy-eight feet from the track, and from that point rises about five feet to the center of the track. Plaintiff testifies that when he reached the point where the approach begins he stopped, raised up in his wagon (this would put his head about seven feet above the surface of the ground) and looked, in both directions for a train and listened for a train, and that as he went forward from that point he at no time saw the 'car although he looked in both directions several times as he went up this seventy-eight foot approach to the crossing, nor did he hear or know that a train was approaching until his horses were right at the crossing and when
The following undisputed facts therefore stand out in this record: Plaintiff on a clear day knew he was approaching a railroad crossing. He was capable of hearing and seeing and did stop, to ascertain whether a train was coming, at a point where he was in perfect safety from collision. From that point on to the crossing there was no place that he could not see the motor car coming if he had looked for it when it was at any point on the track within a quarter of a mile of the crossing. He was in a safe place wheré by the exercise of ordinary care he could protect himself, and this is true from the point at which he stopped clear up to the place where he was injured. He drove upon the track and was struck by the car. He was in a covered wagon but did not know that a car was near until he says his team was right at the crossing and the car was right on him.
No stronger statement of a case of contributory negligence in law will be found in our reports. The law will not permit plaintiff to be believed when he says that he looked and did not see where the physical facts disclose that to look he could not help seeing. Without further discussion or a review of the authorities it is sufficient to say that plaintiff was guilty of negligence as a matter of law which contributed to cause his injuries, notwithstanding defendant was negligent in failing to give the statutory signals. This is no unchartered field as the question has been discussed in a great number of decisions in this State.
This disposes of the controversy submitted on this appeal. The cases above cited clearly show that defendants’ demurrer to the evidence under the first count should have been sustained.
We may also express the opinion that plaintiff failed to show facts entitling him to recover on the third count of his petition' — as to a defective crossing. Now as to what order we shall make: The way in which plaintiff presented his case for trial required a finding by the jury on each count; but the defendants offered an instruction (“B-l”) on the humanitarian doctrine (under plaintiff’s second count) which was given by the court and which contained manifest error against the plaintiff in that it told the jury that defendant had a right to expect a clear track at this public crossing and owed the plaintiff no duty to look out for him, and that defendant could only be liable in case plaintiff was actually seen in a position of danger in time to have prevented the collision; it left out any reference to liability where, by the exercise of ordinary care on the part of the defendants.’ servants the plaintiff could have been seen. [See Lang v. Railway Co.,
The judgment appealed from is reversed and the cause remanded. [See Gordon v. Railroad, 153 Mo. App. l. c. 565,