delivered the opinion of the court.
The petition in this case was under the second section of the damage act, for the negligent killing of the plaintiffs husband by a locomotive of the defendant.
The evidence in the case, in which there was no conflict, established the following state of facts: The deceased, who lived in the town of Moberly, was passing from the east side of the railroad, on a frequented path leading over the tracks', in the middle of a clear day in November, and was killed by what is called the “pony” engine, running backwards on the main track. He stepped from behind somе cars standing on the side track, which was seven feet froin the main track, and was killed by this engine almost immediаtely. He wore a fur cap with ears to it, but it seems from the testimony that his hearing and eyesight were ordinarily good. The bell on the “pony” engine, having no rope to it, was not sounded by the engineer, and there was а freight train on the adjoining track, about fifty feet off, on which there was a bell ringing which could be heard all over the town. The locomotive that killed’ Harlan could be heard, when in motion, without a bell, at a distanсe varying from one hundred to two hundred yards. The engineer of this locomotive did not see Harlan till he was run over, the engine going backwards. The track was a straight one, and the engine could have been seеn at a considerable distance. There was no possibility of stopping it, had the engineer seen Hаrlan before he was struck, so as to avoid the disaster that occurred.
The instructions given by the court to the jury were undoubtedly the law, and distinctly declared that the plaintiff could not recover if the disaster wаs produced by Harlan’s own negligence, although the bell was not sounded, provided the engineer cоuld not have prevented the accident. The jury, however, found a verdict for_the plaintiff.
The principles of law applicable to this case are so well established that we deem any citatiоns of authority unnecessary. They are cited at length in brief of appellant’s counsel. A person whо goes on a railroad track, or proposes to cross it, must use his eyes and ears to avoid injury. A neglect of regulations in regard to bell ringing may amount to negligence in law, on
Conceding, in this case, that the failure to ring the bell was negligence on the part of the defendant’s servants, yet Harlan could both see and heаr the locomotive, if he had looked or listened, and his stepping on the track, on the apprоach of the engine at a slow rate of speed, appears unaccountable. He seems to have been either absorbed in thought, or concluded, after he saw the engine, that he could cross safely, although it was so near as to make the experiment exceedingly hazardous. The company are not responsible for the result of such experiments, unless the engineer, after seеing the hazardous position of Harlan, could have avoided injuring him. Of course no amount of negligence on the part of a stranger would authorize a railroad engineer to run over him, if there was a pоssibility of avoiding it; but it is proved in this case, by the plaintiff’s- own witness, that the engineer did not see Harlan until he was killed, аnd that if he had seen him there was no possibility of stopping the engine in time to have avoided the injury. The failure to ring the bell on the engine and the sound of bells on the freight train might have misled Harlan, if he trusted to hearing аlone, although the evidence on both sides clearly shows that the movements of the “pony” engine, withоut a bell, could be heard at least fifty yards. This, however, does not account for the failure of Harlаn to see the engine, when he stepped from behind the cars on the side track. He was seven feеt still from the main track, on which the switch engine was clearly in sight, and in motion, and it was about the middle of a clear day, between one and two o’clock. He must, therefore, either have been totally absorbed on other subjects, or have concluded to take the risks. There is no ground for holding the railroad сompany responsible for the
The question discussed in this case in regard to the form of the petition, in view of the conclusion we,have reached on the merits, we deem unnecessary to consider.
The judgment is reversed and the cause remanded.