*1 Yol. 301 1923. TERM, Company. Henson v. Railroad complains Appellant III. instruction numbered given ground one on bebalf of the as- that it State, necessary
. An ex- sumes shown. facts to be _ affiliation instruction shows that tracts!011 jury required every necessary to find fact to a conviction. judgment
Finding no error the record the is af- P. Blair, J., David E. and Walker, J., firmed. concur.
ROBERT HENSON v. ST. FRANCISCO LOUIS-SAN Appellant. COMPANY,
RAILWAY Two, Division December Hypothesis: Stopping
1. EVIDENCE: be Based on Facts. Car: Must charged petition Where that the motor car the time it struck running twenty-five miles an the undis- puted running twenty evidence offered him is that it was twenty-five per hour, permit plaintiff it is error prove the distance in it which have been it running five, hypotheti- seven or twelve miles hour. Such questions predicated upon proof cal must be case. Contributory 2. NEGLIGENCE: Humanitarian Elimination Rule: Negligence. plaintiff, by abandoning charges his of common- negligence acquiescing law in the submission of his case to jury alone, under the humanitarian rule eliminates from the pleaded contributory negligence, case defense of and there- plaintiff’s right to recover must determined his place conduct and the of defendant’s at the acts servants time and accident, surroundings and the conditions and then existed. Impossibility Avoiding 3.---: -: Accident. Plaintiff can- injuries personal recover his under the humanitarian rule physical clearly where own evidence and facts demonstrate impossible peril to avoid the accident after discovered and there was no lack of reasonable care to discover presence sooner his on the railroad track. Safety.
4. -: -: Pedestrian on Track: Care Own operator car on a has the motor railroad track to as- SUPREME COURT OP pedestrian on-coming car will sume that a towards the therewith, nothing being leave track and avoid a collision apparent he is to indicate that his -manner or condition *2 peril. the oblivious to Discovery 5. -: of -: Peril: Four Seconds. Where plaintiff first the motor car tiff’s evidence is that when seen thirty-three to and that the motor within feet from car, twenty traveling then could not have been feet, stopped be than a for him cannot sus- less 264 verdict testimony conjecturing on that he have been seen tained could away, especially he himself testifies that the track 120 feet where it, that, facing it was so dark the towards car operator’s fail- cannot the could see it. A verdict be based on seconds, stop possible ure the in four even if it were to to car beginning stopped it pláintiff within that and to have at their seen time. Warning: Presumption Duty. of In the absence -: -:
6. contrary, presumption of law obtains of evidence night operating time car in motor the foreman who was approach duty, warning gave on the track its did his of day light, occasionally pedestrians because traveled in on which plaintiff struck him. car not seen he had who, Trespasser. plaintiff Walking A Track: -: Railroad 7. right, custom, deliberated, walked license or without claim time, using night upon instead of a railroad highway, near-by public to walk and continued cattle-guards place rails, fenced main- it was where at town, by tained, defendant’s was struck from a half mile injuries held, personal brought car, in his action must motor trespasser company, against have been within the railroad 9948, 1919); (Sec. R. and under the purview S. evi- the statute case, such cannot re- circumstances dence cover. Ing, Court.—Hon. Almon
Appeal Circuit Butler Judge. Reversed. appellant. S Beeves and Ward F. Evans
W. a de- nature of (1) instruction Defendant’s plaintiff’s close of offered the evidence murrer OCTOBER, Vol. TERM, (a) given, To
case should have been make a under case only -the rule, the humanitarian must not be in position peril, position a discoverable but this must space in sufficient have been discoverable time operator by the motor have enabled the the exer- ordinary to have care, cise of there- the car and plaintiff. by prevented a collision with There abso- lutely this case that no evidence operator seen defendant’s of the motor
have been
position
perilous
in time
exercise'
have,
car in
Burge
ordinary
prevented the collision.
Rail-
v.
care,
102;
Railroad,
244 Mo.
186 Mo.
road,
Whitesides v.-
App.
App.
524;
Mo.
Railroad,
v.
Baeck-
608; Hawkins
George
507;
Railroad,
251 S.
Railroad,
er
251 W.
Railroad,
104;
Roseman v.
Anderson
S.
W.
*3
Flour
86;
Co.,
251 S.
v.
Mill
245 S.
v.
W. Wilson
Davis,
Grady,
Murray
1022;
v.
231
Iron
206;W.
Bibb
S. W.
v.
(b)
perilous
418 COURT SUPREME OP collided motor car have track, ered on the would beyond passed him it could with brought stop. George to a v. 251 S. Railroad, W. Rashall 729; 662; Brown v. 237 Mo. v. Brown, Railroad, Burge Mo. Hamilton 522; 249 v. 250 Mo. Railroad, 722; App. v. 244 Mo.- v. Railroad, 76; Glick 57 Railroad, Mo. App. v. 97;-Whitesides Railroad, 186 Mo. v. 608; Justus (d) 79. If Railroad, S. W. we assume that the position greatest peril tiff was in a at the distance he could have been seen from the car, to-wit, 120 feet, it only required more a little than four seconds the car plaintiff. space to cover this-distance time entirely predicate recovery too short which to humanitarian, Railroad, under the rule. Hawkins v. App. Burge Degonia Mo. Mo. 534; Railroad, 101; v. 596; v. 224 Mo. Anderson v. Railroad, Davis, 251 W. S. Markowitz Railroad, 186 Mo. 350; T.annehill Reynolds, rel. v. Railroad, 158.; State ex 289 Mo. foregoing paragraph The cases cited under demonstrate that the no case for the has reason operator of the car had not sufficient time in which collision, prevent (e) The evidence was not suffi- general public cient to of the user railroad track show operator require of the motor so as car to antici- pate presence persons on the track. The user public general requires not such a user as law operator order to demand trains cars the keep pedestrians lookout for on the track. *4 Frye 250 Mo. 721; Hamilton Railroad, Railroad, v. v. 200 (2) contrary jury the Mo. 377. The verdict of to the given under the instructions of the court and instructions legally properly jury find a could not or verdict for ignored plaintiff. jury pass upon and refused only question necessa- it, the sole and submitted beyond rily went instructions of the outside of some basis court, and found its own verdict other by than that submitted to them the instructions. The Barber v. 245 McDonald, verdict therefore stand. cannot 419 TEEM, 301 1923. OCTOBEE Brokerage App. 669; v. 206 357; Co. Mo. Hines, W. S. Payne Hoagland 209 S. 569; Eailroad, Eailroad, v. W. v. Shohoney 223 649. Eailroad, v. Mo. 405; 129 Mo. respondent. & Hill
Atkinson, Bombauer (1) conclusion construed that, “The reached was adjudications, light our former of reason there persons remaining to look out for left places by common es- custom, the track at where well railway company, and known to tablished by pronounced pedestrians use of as caused such naturally expected. presence In words, to be other their general rule no innovation in that the statute made regard, duty, general liability rule trespassers relating to or licensees of whether it, breach long recognized quasi-licensees court this Morgan its Case. it has been Murphy Since decision persistently consistently followed.” v. (2) Logically, Mo. this same rule 228 84. Eailroad, engineer. applies motorman well as an Ahnefeld to a (3) following 212 302. some Eailroad, cases, Mo. v. dis- some the latest court', earliest and this application uniform made court of close n humanitarian to those doctrine to facts similar Morgan Ey. 262; Co., Wabash 159 Mo. v. case bar: May 361; Eailroad, Eailroad, 105 Mo. Guenther v. Le v. 378; Mo. Fiedler 286; Dickinson, Mo. v. 207 95 Newell 107 133 645; Eailroad, Mo. Chamberlain Eailroad, v. v. Eppstein Ey. Co., 720; v. Pac. 197 Mo. Mo. Mo. 587; v. Schaff, 208; v. 180 Mo. Calhoun Eailroad, Fearons 172; Dalton Eailroad, Beard 272 277; 229 v. S. W. 663; 276 Mo. v. S. Eailroad, v. Ulrich W. Eailroad, Payne, Kemp Euenzi v. 402; W. Eailroad, S. 377; Eailroad, 631; 294; S. W. Walker Goben v. S. W. App. 249; Co., v. McCarty, 193Mo. Hornbuckle Eailroad Wabash Eail- v. Mo. Pac. 243 W. Emma S. Fields 240 W. (4) appeal from a “On an road S. Co., judgment on a in favor based verdict *5 SUPREME COURT OF MISSOURI, Company. light evidence will be considered in the most favorable plaintiff.” Calhoun v. Schaff, S. 277.W. by action RAILEY, C. This was commenced County, tiff, in the Circuit of Butler Missouri, Court damages alleged March 9, 1921, recover to have been in sustained a collision with- defendant’s motor County, September car in Scott Missouri, on 1920. petition alleges corpora- a defendant, Missouri operated at the tion, dates mentioned therein, a line of through railroad County, the town of Crowder, Scott through County, Missouri, Butler in said State; years space that for last ten between the rails of depot running defendant’s its said town point to a more Crowder, than' one-half inmile southerly hourly habitually direction, “was used, day night, by public foot-path, both’ .as a foot-path through populous that said at all times ran community, all which facts, the its defendant, officers, agents, employees, servants and at all times knew, haye of'ordinary the exercise along care could known”; portion foot-path, said as a track, said used operating was the of defendant and its servants along point, keep motor at that railroad, cars said pedestrians constant lookout for on the railroad track. September It that on is averred 21, 1920, while foot-path, along said between said railroad going south from and when tracks, about Crowder, one- fourth of a mile south of same, defendant and its operating going along motor car servants, north said “negligently keep railroad track, failed a constant foot-path pedestrians along lookout for said said negligently ran motor track, car, railroad said at that point, high speed, twenty-five at a rate to-wit, negligently ran said motor car at that time, adequate which was without brakes and without signals pedestrians light or other or devices warn approach, negligently to warn its failed approach negligently motor ran said said TERM, v. Railroad
Henson *6 the with the same to collide and motor car caused peril position of his oblivious and in of was a tiff, who operators danger, car said motor knew the of and that ordinary of have known care the exercise of presence railroad said of the the danger in peril his of and obliviousness and of his injury prevented his stopped the and to car time operate ordinary but continued care, the exercise of aboye causing negligent out, set manner said car in a thereby thus and aforesaid, it to collide with setting leg,” out After breaking plaintiff’s etc. left petition a plaintiff’s alleged injuries, with concludes the prayer damages. for $20,000 plea of general and denial a
The answer contains of general denial negligence. reply a contributory pleaded in the answer. the new matter plaintiff, -in testified, a witness Seholtz, John years, for fifteen at Chaffee that he had substance, lived during time, that of defendant and had been the sérvice September working in 29, 1920, and was in its service yards which car on the motor he Chaffee; its at that was plaintiff; collision about that the occurred collided with quarter Coun- half to Scott Crowder, of a mile below ty, Belk, Joe collision, at time the Missouri; that Floyd that all three car; Clemons himself were on Floyd was defendant; were in the service of that Clemons operating that foreman the car was at crew, they running between time; were Morehouse that going collision occurred Crowder, Chaffee; into that the p. just beginning between six m. was and 6:30 that it ; get September dark; that the collision occurred on opinion pretty straight that the track was way place each level, from the about collision, path one that mile; there was nice little padded rails in the center of track, nice, where path collision that occurred; ran north south place light from the collision; was objection motor car before the collision. Of de- Over permitted witness fendant, testify was SUPREME COURT OP
Henson, v. Railroad “be- all; at horn on the that it sounded car; sawI with cár fore motor the collision plaintiff walking track; on the straight wit- going it looked south”; us, toward though plaintiff coming the center down ness as thought just track; as he looked get step track; off the one latter made get hit. Witness started to about that time was off,-and further testified: length from rail him were about one
“When I saw we little my kinda down a face about feet. I had pair goggles; bit; at that time I had on a of these bugs grass- pretty being air bad full about *7 things hoppers goggles we and of that and wore kind, keep eyes, goggles my them out of our had raised and I hap- get trying bug my eye, and was I out and pened up something to look and I saw in the center of track, I what couldn’t see it couldn’t then was, tell, and about that time we him. had hit That I first noticed he there, and at that time I don’t think the applied. figure going had brakes I we were' about n twenty twenty probably mile an twenty-five an hour. miles motor car had brakes on it; it operating op- was of the man the car to erate seventy-five too. run brakes, We about one or yards probably by hundred him before he it. I just that realized Just we had hit a man him. as soon we hit stop as soon as we up we could went back picked up, put him the three us, him on ” the car with us. plaintiff He said was in the middle of the when he first though saw him; plaintiff that it looked to him as step get made one off the rail.
On cross-examination, witness oc- said the accident curred about one-half mile south of Crowder; that he and carpenters Joe Belk were doing and had been out some work for defendant; that the car pur- was used for that pose ; that there were two seats front and one behind: (witness) that he sitting in front on the left-hand 423' TERM, 1923. v, Railroad
Henson sitting [the foreman] was “Clemons side of car; ’’ could operating that he car; and was behind us wit- doing behind he was what tell Clemons was collision, just before the look back ness that he did not ; he what Clemons was and “do not know doing;’I twenty- twenty traveling thought the car was he per noise, a lot of it made five thought hour; miles still, was a it off; it mile hear a man could step figured night; off, would that he clear step first “when I off; he like he looked started thirty something feet from him like saw we were length length, a rail I think about rail’s know thirty-three “I don’t said: He feet.” feet or operating oar who was me whether the man behind whether he under- I did or or not, had seen him before stop, my don’t whether him. know took to back to I I just put him”; struck before we on the brakes seventy-five striking plaintiff, the car ran about stepped yards, while the distance; that but he never stop- per running eighteen it be running hour could car was miles rail-lengths ped eight that while feet; twenty emergency brakes with the hour thought stop all took 264 feet which to car; time; the men on the car saw about same that when he first it was so dark discovered hardly ob- a man. tell it was This without witness, *8 jection, as testified follows: you any-
“Q. After him on the saw track was there thing by any you men that could have been done three prevented striking to have that man? A. sir.” No, people traveling He that he testified, had seen on this pathway going between the work; rails while he was any along that he never saw one there that dark; anybody first he ever this was the time saw on the track just pathway dark; there after that the looked like it had built; been plaintiff, car that when the within was feet nothing keep there was that could be done to hitting speed’; car from him on account of its that he was facing driving inwas front of the man SUPREME COURT OP
Henson r. Railroad on clear three of the men the car had a that all car; ‘‘ np brakes were that he did not track; think view ’’ applied man. until we struck the operat- said man On re-cross-examination witness ing the car was behind that he could not state they a fact that the brakes were not set until struck weighed pounds, that the car about tiff; fifteen hundred operated power. by gas and was Stephen plaintiff, witness that Pratt, testified people walking he had seen track defendant’s south accident, Crowder since the but did not live at Crowder injured before was and never saw one on time. Robert Henson testified own' he his behalf, that years sixty-six was old at time he of trial; was hurt about one-half mile south of Crowder; that the thing going last he remembered south was -he was walking railroad track Morehouse; he was going two rails, toward was Morehouse, the. about one-half mile from Crowder when hurt; never saw the nor did he hear it; that he -saw never any light, warning; that he was in middle of the track before he was hit; that he did not how know the accident occurred; that he was in the middle of had his track, face looking to the south, was way going, he was asleep; and was not half that he standing up straight hit;.that when face front; his grip that he had a over shoulder, did not know happened how was struck, nor what He that time. testified that hearing, he was eyesight hard but his very bad. R. N. Minnert testified, in behalf of lived half mile south of Crowder, which is a town people; about two hundred that the railroad is used trains to run on, and it is also used for footmen to walk on, up do walk on it and down there; that opinion many there were people, as three four beside except the school daily, children, Sunday, who along walked the track where injured; *9 TEEM, 1923. v. Railroad
Henson days. Sunday people than on week on walk there more say that this wouldn’t said: <£I cross-examination On ’’ public; school generally that the used mornings and in the to nine it from seven children used four-thirty that sundown; afternoon to in the night';” anyone traveling that that track “never saw cattle-guards along that same; all the road is fenced and that there track; used the five six school children about good road near the railroad track. was a dirt Crow track south of testified Leonard Ward by people up since has been used der, “just any track;” down like other railroad daytime ££right both smart,” railroad traveled the by people night; walk track was and at used daytime during cross- and at since On average an said there of three examination, he would be people day walking track; or four each over people traveled; there was a road which could have wing cattle-guards the road fenced, fences, is with along the within of Crowder, two miles on the same; rail there are three houses the east south, side of within a road; side, that on west house half mile track.
Nancy his Gower, sister of testified, hearing eyesight pretty good but bad, he was hurt.
John Scholtz was recalled over and, objections permitted express defendant, opinion stopped, as to the distance which a car could be running while 5, 7, hour. 12, 15, 17, 18, 20, 27.7 miles foregoing substantially all covers the facts except plaintiff’s injuries. relating case, those
The defendant offered a demurrer to evidence, which was overruled, and it declined to offer evidence in the case. may important,
Such other matters, as be deemed opinion. will be considered jury a verdict returned' in favor of judgment accordingly.
$7600, and was. entered Defend- *10 426 COURT SUPREME OF Company. in which was ant, dne its motion for a new time, trial, filed appealed by the cause it to this court. overruled, and ruling Appellant complains I. trial court’s permitting plaintiff, objection, prove in over his defend John the distance in which Scholtz Hypothetical stopped, been ant ’s car could have had it been Question. per running five,-seven or twelve miles undisputed plain-' when the evidence in behalf of offered twenty- running twenty tiff that it was from disclosed, per petition charges five miles hour. The also that said running, plaintiff, car was at the time of the collision with twenty-five per purpose hour. The manifest of testimony get jury impression towas before the the running if motorman had defendant’s been slower, might accident have been avoided. It well law settled hypothetical questions pro in this State, like those pounded pred pass Scholtz, order to must muster, be icated the evidence in the case. the court Hence, permitting erred in testify .dis witness to toas tance in which running said car could be while five, seven, or twelve miles hour. [11 R. C. L. sec. p. Ry. Ry. 579; Russ v. 112 Co., Mo. l. c. 48; Co., Root v. 195 Mo. l. c. 377.]
II. The trial court, instructions, eliminated charges negligence the case all the pe- contained except relating tition, those to the humanitarian rule, the case jury Appel- was submitted to the on this issue. _ lant undisputed contends that on its facts Avoiding demurrer to the evidence should have sus- Accident. tained at the conclusion of the case. by abandoning charges tiff his common-law negligence, having jury case submitted to hu- under manitarian doctrine, eliminated the defendant’s defense contributory negligence. Hence, the ac- conduct and tions of charge defendant’s foreman in place the car, at the time and of accident, must con- light sidered and roundings determined sur- conditions, and they then' existed. [Griffin v. St. Louis TERM, 1923. Henson, v. Railroad Rail (Mo.) McGeev. 809-10; l. c. Co., S. W. Transfer Ry. Electric 33; Grout S. 541, 114 214 Mo. l. c. W.
road, tersely last App. stated 562.] l. c. As Co., “ actual only with the deals case: The humanitarian concern with present condition, facts of a has might different question under been done of what supra, Case, in the Griffin J., conditions.” Williams, ‘‘ negligence humanitarian. doctrine held that: defend holds exist, facts seizes the .actual re resulting use injury liable, from failure to ant *11 existing quired conditions.” then care under the car, of the motor was on seat Scholtz, John who the. follows: in testified foreman, front as along anyone at this there “I never see did night, place along after other time of anybody ever This the first'time I saw dark. ’’ track there dark. after plaintiff stating witness, This same away thirty thirty-three him, he first saw feet when to dark “when him it first discovered so testified I petition hardly al- man.” I couldn’t tell it a plaintiff’s “night,” leges evidence that it was and the large dark could even see shows that it was so not so body although a before it struck him, car face Taking they was toward the car. were conditions twenty- running twenty car shown, was then from to per running twenty per it five miles miles hour. In hour, twenty-nine with moved over a fraction feet each second, plaintiff moving dis- still toward the car to shorten the plaintiff proved by tance them. The ex- actual periment, with car, the same that it could not be twenty running than 264 while feet, less hour. According testimony to the it clear Scholtz, was still, night, running ear, could as was have off. a mile heard He further testified “when we were within feet of this man, there anything stop wasn’t that could then be done car keep hitting going .to we him, and were so fast that stop hitting we couldn’t then without him.” SUPREME COURT OF statement of the witness is sustained above Taking physical plaintiff’s own.evidence. facts, and twenty traveling the conditions as existed, car, .stopped feet. miles-an could less than syllable either case, There is not evidence showing, tending prove, have or. carefully been seen if foreman, the latter had been looking, a distance even 132 when take feet, it would stop twice that which distance in car, avoid physical presented, collision. The supplemented by plaintiff’s when facts heretofore the effect
own evidence, 1500-pound that it was so dark car, he could not see with face struck turned toward before it it, impels recovery us to hold that there be no in this can case, under the humanitarian rule.
(a) posi Even if it be conceded, face testimony tive contrary, to the fore that the charge might man in of the car seen feet distant, would have had the assume,
plaintiff, whose face was turned toward the on-coming would Truc¿ng leave the avoid track and [Pope
the collision. c. 242 Mo. Railroad, l. Carrier Railroad, 175 470.] useless, It *12 speculate subject, to however, on this as the car could not stopped plaintiff have been in less than feet, 264 if even by had been seen the motorman while 120 distant. feet testimony III. The in Scholtz, to the effect that opinion plaintiff away could have been seen 120 feet against does not militate the conclusion here- applied tofore stated. When to actual as conditions they existed the time of he accident, plaintiff thirty-three said o^Distance. away feet when he first him. mere saw His conjecture plaintiff might seen 120 feet been night weight, but entitled to little face plaintiff’s positive testimony contrary. to the let But plaintiff us assume that could have been 120 seen feet away, this would not have obviated the as collision, the car OCTOBER, TERM, VoL Railroad
Henson v. Keeping in stopped feet. in less than 264 be could not ap were plaintiff car the motor mind the fact foreman seen proaching had even if the other, each per plaintiff away, traveling twenty 120 feet only over four seconds fraction have had a he would experiment, not stop could be actual the car, which, only stopped With four seconds and under 264 feet. - recovery sus not be could act, in which to fraction, alleged negligence motorman on the tained, based stop failing feet, even it the car within 120 if in Burge possible stop in that In it distance. Degonia Railroad, l. and in 101-2, Mo. c. Railroad, even were not l. we ten c. held seconds avoid the under the circumstances of this case to sufficient plaintiff. collision the car came within 120 feet It that, calculation needs no mathematical to demonstrate as the car be than 264 feet, could less not .alleged experiment, failure of shown actual dis motorman to discover track T20 feet legal recovery not furnish a basis tant, case. respondent, ab
IV. in their brief Counsel say brakes stract, witness testified that “the Scholtz ’’ applied printed abstract, hit. In were after he think were not said did brakes Warning: Pre applied but until struck Duty. sumption of question, on cross- next he answered the state follows: “I can’t it as a fact examination, applied him.” This until we struck were not the brakes ‘ ‘ ’’ honk that the on the car was also testified witness Conceding was struck. sounded the above regard testimony “honk,” to the brakes and true, that the foreman tends to show who behind Scholtz before he on the never saw was struck, applied would have sounded alarm the brakes. *13 Ry. Eppstein Ry. 98 Mo. c. [Barker Co., Co., v. l. 735.] l. 197 Mo. c. COURT OF SUPREME discussing Eppstein similar while a Case,
In the warning question, absence of all “Indeed, we said: signals, by char- us, whistle or would indicate bell, ” . him. itable did not see view, ho ease, not
The motorman was a witness sitting in one Scholtz, him before the accident. saw the front seat of the car, Clemons, foreman, sitting him. the seat Scholtz behind testified back did look not not and could Clemons, back, doing tell ab what before the collision. In the upon presumption subject, sence of evidence gave law obtains that did no warn Clemons ing because he had colli not seen the before the [Woolridge sion. c. LaCross Lumber Co., Mo. l. (Mo.) 247, 236 S. l. c. 297; W. State v. 237 S. W. McNeal, l. c. cited.] cases among
Y. Section 9948, Revised Statutes 1919, things, provides any other person “If that: con- employed upon nected with or the railroad shall walk upon except the track or thereof, tracks same where the j.r&spS’SSdTt road or shall be laid across or *i street, j i or at any crossing, i along publicly [*] traveled herein- _ ( provided, and shall receive harm on account there- person such shall be of, deemed to have committed a tres- pass any brought so said track in action against him corporation on account of such harm owning such railroad, but not otherwise.” brought in this case himself within the purview deliberately, statute, when any without right, claim of license or custom, walked down rail- using public highway, road track, instead and con- tinued down this track, the rails, at a place cattle-guards where the track was fenced, main- quarter tained, half mile and con- town, journey tinued this until he met the defendant’s car which could be for a heard mile, was knocked off the track. * place
VI. At the time and of the: accident the trespasser upon tiff, under the above statute, was de- *14 TERM, cattle-gnards fenced, track. The road was fendant’s injured. It not occur at constructed where he did was public any city crossing, town. of nor within the limits country, from a half mile
He was in- between the town, rails, tyCownyA^ts.red highway. adjoining using stead defec- According'to of his he was counsel, the contention good eyesight. hearing, was He none too and had tive making foot-path without au- of defendant’s track, using thority a claim that he and without even» of law trespassers other so. Under did the same because alleged petition, met above conditions making be on-coming much so noise could- car, an motor toward with face mile, that, and asserts for a heard presence until aware struck he was not of its according daytime, testimony, he to his same. In the away, mile a man one-half and a motor car, could see testimony accepted miles. If his of two distance theory prevented that he be on the it must true, yet seeing darkness, the car on account he claims knowledge crew, who no that defendant’s night-fall trespassers, being used peril, under have known should circumstances regardless of the in time aforesaid, darkness, injury, him from collision and saved while he more away. case, than 264 feet have been We referred to no recovery where a has sustained court, such presented are under the here, rule, facts as humanitarian or otherwise.
Upon plainest principles justice, we plaintiff was the architect of his mis- hold that own standing has in court under humani- fortune, tarian doctrine. judgment accordingly below without reversed
remanding. Higbee, concurs. G., ' foregoihg.opinion PER CURIAM:—The Railey, opinion adopted as the the court. C., is All of the judges concur.