98 Mo. App. 20 | Mo. Ct. App. | 1903
It is the law here and elsewhere that it was the duty of plaintiff’s driver before he attempted to drive across Easton avenue to look and listen according to his opportunity for an approaching car on the south track and that this duty was continuing until he passed the track. Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. loc. cit. 372. And if the car on the northwest corner obstructed his view when he first got on the street, after passing that obstruction it was his duty then to look for an approaching car before driving on the south track. Lien v. Railroad, 79 Mo. App. (K. C.) 475. And the court, in plaintiff’s instruction, should have specifically stated the care plaintiff’s driver was bound to exercise before driving upon the south track. Instead of doing this the jury were instructed in general terms that if they found the driver was exercising ordinary care, etc., to find for the plaintiff. The law has established specifically what is “ordinary care” in a traveler approaching a railway crossing before attempting to pass over it, and
The failure, however, of the court to specifically define ordinary care in plaintiff’s instruction was cured by the second instruction given for the defendant, and if the jury gave due attention to that instruction, which we assume they did, they were not misled by the instruction given for .plaintiff. As a whole, the instructions given fully and fairly present the law of the case.
■ It is contended that, the defendant’s instruction (offered and refused) in the nature of a demurrer to the evidence, should have been given. This contention is made on the assumption that the driver drove upon the track without looking or listening for an approaching car. This Assumption is made in the teeth of the evidence of the driver, who swore that as soon as he had the opportunity to look and listen he both looked and listened, but did not see or hear any approaching car; that he could not,see on account of the darkness and could not hear on account of the noise made by the other car and his wagon. Other witnesses testified that had he looked he could have seen the car and the weight of the testimony seems to be that he could have seen the car had he looked before he drove upon the track. The veracity of the driver was a question peculiarly for the jury to pass on and is not open to review by us. The jury gave credence to his evidence and we have no authority to upsfet their verdict for the reason that we may think the jury gave undue weight to his evidence.
Discovering no reversible error in the record the judgment is affirmed.
