delivered the opinion of the court.
In the extreme southerly part of the city of Peoria Krause avenue and the railway tracks -of appellant cross each other diagonally. On September 27, 1909, Marcel Koebel was driving a light wagon on Krause avenue and had in frоnt a high seat on which he was sitting and with him Mrs. Nellie Fuller and Mrs. Pearl Zerwekh. This was a brewery wagon and it was used by Koebel at the brewery and it was drawn by two horses owned by Koebel. Mrs. Fuller and her children and Mrs. Zerwekh had been camping by the river, and Koebel hаd come for them and their camping equipment and had the children and the equipment in the back of the wagon, including bеer bottles. The time was about seven or eight o ’clock p. m. As this vehicle approached the railroad сrossing a train of the Iowa Central Railroad Company was going over the crossing and Koebel stopped abоut 100 feet from the crossing. There was an arc light 230 feet west of the crossing and another 280 feet east of the crossing, bоth throwing their light upon the crossing. The train was going northeasterly. There were a number of coal cars near the enginе, then a number of box cars, then seven flat cars, then more box cars. A brakeman was riding on top of the rear cаr carrying a lighted lantern. There was no flagman and there were no gates. When the coal cars and box cars hаd gone over the crossing Koebel started his team and drove them sideways into one of the flat cars, thus injuring the shoulder of one of the horses. The team then turned, tipped over the wagon, tipped out the contents and ran away. Mrs. Fuller was injured and brought this suit against the company having control of the railway tracks to recover damages for her injuries, and on a jury trial had a verdict and a judgment for $1,500 from which defendant below appeals.
Each count of the declaration stated the condition of the crossing and that it was dangerous. The first count charged as negligence the fаilure to have a flagman at the crossing; the second count a failure to have the crossing properly lighted; the third count a failure to erect gates, barriers or some signal device; the fourth count general negligence on the part of those operating the train. Each count charged that the injury was caused by the locomotive оr locomotive and train of cars running upon and against and striking the team or vehicle. At the close of plaintiff’s evidence and again at the close of all the evidence appellant moved to direct a verdict in its favor because of a variance between the declaration and the proof, in that the declaration averred that the train and engine ran into and struck the team and vehicle, while the evidence showed that the team ran into and struck the side of one of the cars. By these motions the attention of appellee was called to the variance. She did not offer to amend her declaration, but the motions were denied. Apparently, in the absеnce of any amendment by appellee, these motions should have been granted. If the driver had brought this suit, it is obvious that his contributory negligence in driving into the train would have prevented his recovery, for the reasons and upon the authoritiеs given by us in Metropolitan Trust & Savings Bank v. C. B. & Q. R. R. Co.,
Thе office of a flagman and of gates and of lights is to warn travellers of approaching trains. It is not the duty of a flagmаn to hold the heads of the horses while a train passes by or to wave his flag while the train is passing. ■ It is not required that gates shall be so strong that a team cannot be driven through them, nor that they shall form an impassible barrier while a train is passing. After a passing train has reached the crossing, and the parties riding in a vehicle approaching- the crossing know that thе train is upon the crossing, flagman and gates and lights have performed their function. If this vehicle had been driven upon the trаcks and struck by the approaching train, and the party injured did not know that the train was approaching, then the absence of a flagman or of gates or of some other warning might well have been held to be negligence, giving a canse of action to the party injured. But here the train was on the crossing, and all the parties on that front seat saw it аnd knew it was going by. If they could not see the flat cars as they passed by, and the box cars still approaching and the brakeman and lighted lantern on the rear car, it is entirely improbable that they could have seen the flagman, if there hаd been one there. The two lights already described and the moon were strong enough so that after the accident people were able to see and pick up the beer bottles scattered on the ground. The calendar shows that at the time of this accident the moon was about half way from the horizon to the zenith, and was within two days of being a full moon. Courts take judicial notice of the course of the heavenly bodies. 1 Greenleaf on Evidence, sеc. 5; Reynolds’ Stephens’ Digest of the Law of Evidence, Art. 58; Brown v. Piper,
The judgment is therefore reversed.
Reversed.
Finding of facts to be incorporated in the judgment: We find that appellant was not guilty of any negligence which caused the injury of which appellee complains.