197 Mo. 684 | Mo. | 1906
This cause is here upon appeal by the defendants from a judgment of the circuit court of Jackson county, Missouri. This is an action brought by the widow of ‘William R. Sites to recover the statu
The negligence complained of in this action is embraced in the following part of the petition filed by the plaintiff, which is as follows:
“That defendants are and at all times herein referred to are and have been engaged in the business of running, conducting, managing and operating all of the railroad property, locomotives, cars, trains, and rolling stock of the said railroad heretofore and now commonly known as the railroad of The Kansas City Suburban Belt Railroad Company, and that part of the said business of the defendants is and was during all of said period to transfer cars of various railroad companies from one track to another and from one locality to another in Kansas City, Missouri, on tracks owned or controlled by them, or other persons or corporations, and on and from those certain railroad tracks extending in an easterly and westerly direction across Troost avenue south of the Zenith mills, near First street, in said city, which said Troost avenue is a public street in said city, which said place is a populous and thickly-settled locality in the vicinity of which are many dwellings, mills and factories, and that at or near the intersection of the west line of Troost avenue with said tracks, a great number of people are and were at the time herein referred to and for a long time prior thereto accustomed to and did daily dross the said tracks, of all of which facts defendants through*690 their servants and agents in charge of their said railroad, engines and cars, had notice; that at all times herein referred to the said 'William R. Sites, while engaged in the service of the United States Government in carrying and delivering mail to the residents and persons engaged in business at or near the intersection of said railroad tracks with the west line of Troost avenue in said city, was accustomed to and did as one of the public daily cross the said railroad tracks at and near the west line of the said Troost avenue and where the public were accustomed to and did cross as aforesaid, and on or about the 6th day of September, 1901, he did, while so engaged in his said business and while in the exercise of ordinary care, attempt to cross said tracks at or near the intersection thereof with the west line of Troost avenue, and in so doing did attempt to pass between certain stationary freight cars which were then on one of said tracks hut separated so as to allow foot passengers to pass between them; that other persons at the same time and immediately prior to the said attempt of said William R. Sites, with the knowledge of defendants through their servants and agents, had been and were passing between said cars, and the defendants ’ servants and agents while in charge of and running and managing a certain locomotive engine then being managed and operated by the defendants through their said servants and agents negligently and carelessly ran the said locomotive engine against the said ears standing west of the point at which said William R. Sites attempted to cross said track and drove them suddenly upon the said William R. Sites and caught and crushed him between said cars as he was attempting to cross said track as aforesaid and thereby mangled and injured him, which said injuries thereafter and during the same day caused his death, and without ringing any bell, or blowing any whistle, or giving any warning of the approach of the said cars or locomotive engine, and when they, the said servants and agents*691 of defendants, whilst running, conducting and managing the said engine and cars, saw said William R. Sites in a place or danger, or when by the exercise of ordinary care, they could have seen him in such place of danger in time, by the exercise of ordinary care to have avoided injuring him. That by reason of the premises, plaintiff has been damaged in the sum of five thousand dollars.”
The answer consists of a general denial and a plea of contributory negligence. There was no testimony introduced on the part of the defendants. The testimony of the various witnesses introduced on behalf of the plaintiff was substantially as follows:
J. P. Smiley, on direct examination, testified as follows: I have charge of the elevator department of the Zenith mills at the foot of Troost avenue and First street and have been working for this company about four years. At the time of this accident I was sitting in the. door on the east side of elevator facing east; I did not see the accident; it happened to my right; I went to him right after it happened; he was lying about 30' or 35 feet from where I was sitting; if I had been looking south I could have seen the accident; my attention was called to him by a little girl screaming; I crawled under one car and had to cross one car after I crawled under; crossed one track and saw him lying on the ground after I crawled under the car; he was lying very near opposite the gate to Mrs. Bodes’ house, might have been a little bit east of the gate. There was an opening between the cars; I passed through it three times that day, once in the morning’ about seven o’clock and then in going to and from Mrs. Bodes’ at noon. This accident occurred about half past three in the afternoon. There was a solid string of cars from Grillis street to this opening; this opening was about two feet in width; east of this opening was a vacancy of a half or two-thirds of a car’s length; then cars standing close together down to the end of the
Upon cross-examination he testified: This track spoken of as the receiving track of the Suburban Belt is the track the Chicago & Alton sets cars onto they intend the Suburban Belt engine to take away; occasionally the Belt Line leave cars there themselves; as a general rule the Belt Line engine would come in once a day and take all cars set on that track; the next day there might' be some cars put at the west end toward Grillis, and then a break, and another batch of cars and another break, and another batch; I have seen the Chicago & Alton set them in there a dozen or fifteen at a time all coupled together; they generally push them up to Grillis street as far as they dare and fill them in there off and on all day to fill the track; the engine would come again at different times and fill in one, two, three or four at a time; sometimes they would couple them all up and sometimes they would not; if they had as many as four or five they were already coupled; if they brought in one car they would throw it on the track, right in and up to the train; sometimes they would couple them and sometimes they would not. On this particular day there were a number of cars west toward Grillis street and then a two-foot opening; there
Mrs. Mary Stanley testified substantially as follows : I live at Third and Forest avenue and have been living there 14 years; on the day that Sites was injured and about five or seven minutes before the accident I passed through this opening in the cars; had to go through sideways; I weigh 208 pounds. I was on the opposite side of the track, going around the cars at the elevator, when Mrs. Rodes’ little girl came and told me ' that the mail man- was killed. In crossing the track this little girl was behind me; Mr. Sites was on the track as I was coming; in coming from my home I come straight down one of these paths, down the hill, the way we always come; everybody passes that way; I crossed the track in front of Mrs. Rodes ’ house; could not cross before I reached that point on account of the cars on mud track; when I found the track was full of cars I kept on going until I found an opening; I have been going to the mill for the last 14 years; I have
On cross-examination she testified: In going to the mill I come down the gulch and cross mud track at the first place I find an opening through the cars. If there is an opening at the foot of the gulch I cross right there diagonally to the mill, in ease no engine is in sight of me; I would watch for the engine. I made the remark to the girl that day that I thought I might get hurt, those cars being so close together. Before I went in I said to the little girl, “Birdie, go out and see if you see an engine on the other side,” and she said, “No, there is none. ’ ’ I knew it was a dangerous place on account of being a narrow opening; I stood there again and looked up the track by the next car to see if the engine was coming down to catch onto these cars. "When I come down the gulch and find cars on mud track I go
On redirect examination this witness stated that she had to walk a few steps towards the Bodes house to see the end of tbe string of cars; that she didn’t look anywhere else for an engine and that she couldn’t have seen anywhere else.
Edward Wright testified: I live on Independence avenue and work at the Zenith mills; have been working there a little over a year; in going to the mill I go down Q-illis street to First and up First to the mill. On the day of this accident I was loading cars at the mill; first
On cross-examination he testified: People cross at the mill and east of the mill wherever they find an opening in the cars; no regular crossing. In going to dinner that day I had to crawl under the first string of cars, then went down and found this opening and crossed over almost in front of Mrs. Bodes’ house; I do not remember how I got through the day before; sometime the opening is at one point and sometimes at another; sometimes you have to go zig-zag; the openings are not made straight; there is no special place where the railroad always keeps an opening through the cars standing on the receiving track; they come as a result of the way the cars happen to be set in; one pull of cars would be set in and go pretty near the west end of the Belt
Charley Burns testified substantially as follows: I am 14 years old and live at Second and Tracy street; have lived there about two years; on the day of this accident I was sweeping wheat out of the car east of where the accident occurred; the car I was in was standing by itself east of this train of cars; I passed this opening; it was about four feet wide; mud track was full of cars; there were no cars east of the one I was in; there was a string of cars east of me but not on the same track; the string of cars west of me bumped against the car I was in; there was no whistle blown or bell rung-before the bump; I was where I could have heard it; when the bump came I heard Mr. Sites say, ‘ ‘ Oh, My God!;” I jumped out of the car and-ran to where he was lying; the switching crew had gotten to him before I reached there; the head switchman of the Chicago & Alton was taking his name. I had been there about three hours before the accident; the cars west of me and those on mud track were there all that time; when I came down from the west end of the string of cars there was no switch engine around there; the Chicago & Alton switch engine was there three hours before but not on this track. There is a path coming down from the spring and goes over the crossing; right across Forest avenue; it goes right across the track there from the spring; people on the northwest side of the mill come up by Bodes’ and around there to that gulch; a good many do that; some cross on the west part of the mill and some at the east part, where Forest avenue runs through;-people north and west of the mill cross in front of the Bodes’ house; almost all the people on the north of the track use that spring; they have to cross the track to get to it; I see one or two people come
On cross-examination he testified: I was sweeping wheat out of the cars for my chickens; there were seven or eight cars ahead of the car I was in, then this space and then the car I was in; these cars did not run west as far as Grillis street; it is pretty near 500 feet from the point where Sites was injured to Grillis street; these cars would take up about 300 feet; I was down to Grillis street and remember that the cars did not run down there; I came down Grillis street and down the track; people coming down the draw would cross over mud track if they could get through the cars and walk over to the opening east of the mill; lots of them do that that are going to the north; if they find the track full they had to go west until they found an opening; there was no regular place for an opening between the cars.
J. D. Wilkinson testified: On the day of the accident I was working at the Zenith mills; had been working there something -over a year before the accident; people living on the north and south sides of the track are accustomed to cross the track along about where Sites was injured, in front of the Rodes house; mud track is generally filled with cars; at that season of the year it is generally filled; people have been crossing in front of the Rodes house ever since I have been there; I see children crossing at about that place; don’t know whether they are going to school or not; a little girl told me about the accident; Troost avenue if cut through would cross the tracks at the east end of the mill near Mrs. Rodes’ house; Sites was lying right in front of this house; I usually crossed where Sites was injured.
On cross-examination he testified: In crossing the tracks I crossed at different places, according to where I found an opening; do not always find the opening at'
Mrs. Harriet Burns testified substantially as follows : I live in the bottom close to the Zenith mills; I have lived in that neighborhood 16 years; in the last four or five years I have noticed the people crossing the tracks and would say they are all accustomed to crossing there by Mrs. Bodes’ house, not just exactly at one place, but somewhere right close there; I had to use water from this spring for quite a while, also sent the children after water; we usually crossed back and forth at this place where Mr. Sites was injured; mud track runs within ten feet of my front gate; it is usually filled with cars they are not using; they usually left a passage way when the track was filled with cars; I don’t think they left it at Mrs. Bodes ’ house; the passage way was generally left right in front of my gate; the passage way is just a little east of the Bodes house, about straight across the end of mud track.
On cross-examination she testified: I live about 200 yards east of Mrs. Bodes’ house, nearer the road; people pass back and forth over the track there; we live under the hill and there is no passage way without coming there; they pass through the cars and over the tracks at the mouth of the gulch; go diagonally over to the east end of the mill; coming down the gulch going to the coal yard they have to go to the east to cross the tracks; some pass over the track west of the mill, but it is not a public crossing; this gulch comes down across the track at the east end of the mill; most of the crossing is at that place; the reason of that is there is an open space with a path winding around in
G. S. Peppard testified substantially as follows: I am a postman and have been in the service 28 years; when Mr. Sites was put on duty he was given the west limits of my route, which extended to Gillis street; I traveled this route twice a day for 21 years; Sites traveled it three times a day; he was assigned to this route the 1st of July, 1901. In making my route I had to cross from north of the Zenith mills over to Mrs Bodes’ house and deliver her mail, then crossed back to the Zenith mills and made my delivery; I generally crossed in front of Mrs. Bodes’s house possibly a little close to the west end of the mill; generally an opening in front of her house or a little to the west; the track in front of her house from the opening in front of her to Gillis street was generally full of cars; mud track was generally full of cars also; people generally crossed the track in front of Mrs. Bodes’ house — anywhere along there; people going over to get water would generally cross the tracks in front of Mrs. Bodes’ house; I crossed wherever I could; I have gone under the cars, gone over them and gone around them; there was more often an opening there than any other place; people crossed at this place ever since I carried mail there; persons living diagonally, that is, below Mrs. Bodes’ house or above, or anything of that kind, they might go in a different way, but persons calling, on Mrs. Bodes or her family or boarders, anything of that kind, generally crossed in front of her house; this was the best opening always.
On cross-examination he testified: Delivering mail there I noticed people crossing the tracks at different points between Gillis and Lydia avenue; speaking generally, the people crossing these yards had to go according to where they could find an opening through the various strings of cars; this opening varied according to the way the cars happened to be placed in there; it
The plat hereto referred to is here inserted. The Chicago & Alton tracks appearing in white, the Kansas City Suburban Belt tracks in yellow and the Missouri Pacific tracks in red:
At the close of the evidence on the part of the plaintiff defendants requested the court to instruct the jury to return a verdict for the defendants. This instruction, which was in the nature of a demurrer to the evidence, was by the court denied, to which action of the court defendants duly preserved their objections and exceptions. The court then proceeded to instruct the jury (which instructions will be given attention during the course of the opinion), and the cause was submitted to the jury and thy returned a verdict finding the issue^ for the plaintiff and assessing her damages at the sum of five thousand dollars.
After unsuccessful motions for new trial' and in arrest of judgment defendants in due time and proper form prosecuted their appeal to this court and the record is now before us for consideration.
The record in this canse presents hut two legal propositions for consideration:
1. It is earnestly insisted that the trial court committed error in submitting this cause to the jury upon what is commonly called the humanitarian doctrine.
2. It is contended that the facts developed upon' the trial, were insufficient to warrant the court in submitting the cause to the jury upon any theory.
The instruction of the court which undertakes to cover the entire case, and upon which appellants predicate their complaints of error, was as follows:
“The jury are instructed that if you believe from the evidence that Wm. R. Sites was injured and killed on or about the sixth day of September, 1901, and that at that time and for a long time prior thereto, the plaintiff, Laura A. Sites, was and had been the wife of said Wm. R. Sites; and that on or about the sixth day of September, 1900, the defendants, Knott and Swinney, were appointed by the United States Circuit Court of the Western Division of the Western District of Missouri, receivers of all the property and effects of the Kansas City Suburban Belt Railway Company, and that thereupon the defendants took possession and control of said property and continuously thereafter, and on said sixth day of September, 1901, managed, controlled and operated the said railroad, and the cars and engines thereon through their servants and agents; and that defendants’ said servants and agents were on the said sixth day of September, 1901, engaged in the operation, control and management of a certain switch engine on the tracks of the said Suburban Belt Railway Company at or about the intersection of said tracks with Gillis street in Kansas City; and that on said day there were at and near the intersection of Troost avenue and First avenue, in Kansas City, Missouri, a num*706 ber of railroad tracks, extending in an easterly and westerly direction, along which there were stationed and standing a large number of cars attached together and extending from about Gillis street eastward to a point at or near the intersection of said tracks with said Troost avenue, and that at the place last aforesaid said cars were separated; and that on said date, and for long time prior thereto, the locality on both sides of said tracks at the place last aforesaid was a populous neighborhood, and that on said date, and for a long time prior thereto, persons and the public in general having occasion so to do, were accustomed to, and did, continuously cross and re-cross said tracks at the place last aforesaid, about the point where said cars were left separated as aforesaid, and that defendants, through their servants and agents, knew thereof, and that on or about the date last aforesaid, the said William R. Sites was lawfully pursuing his business of distributing mail as a United States postman, and that he, while in the exercise of that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances, and while attempting to cross said tracks near their intersection with Troost avenue, and where said cars were left separated as aforesaid, was run against, crushed and killed by the said cars so standing on one of said tracks being with force and violence propelled against him, and that said cars were propelled against him by the said switch engine then being operated and controlled by the servants and agents of defendants in charge thereof, and that said servants and agents of defendants in charge of said switch engine negligently propelled the same against said cars with force and violence without giving a signal or warning of the approach of said engine or cars and thereby caused the said injuries to said Sites from which he died; or if the said servants and agents of defendants in charge of said switch engine caused or permitted the same to be propelled against said cars and*707 the said ears against said Sites and internally injured him after they saw or by the exercise of ordinary care might have seen, said Sites approaching and attempting to cross said tracks on which said cars were standing and in a situation of peril from said cars, and after the said servants and agents in charge of said switch engine might, by the exercise of ordinary care, have stopped said engine and avoided such injury, then your verdict should be for the plaintiff in the sum of five thousand dollars.”
It will be observed that this instruction embraced two theories upon which this cause was submitted to the jury: First, that the place where plaintiff’s husband was killed was a regular and recognized crossing of the railroad tracks for the use of the public, and at the time he was killed there was an opening for the purpose of allowing persons to pass over said tracks at said crossing and that the agents and servants of defendants, operating the engine and cars on-said tracks, negligently and carelessly caused said- opening to be closed up, without giving any signal or warning of the approach of the engine, thereby causing the injuries to and death of plaintiff’s husband. Second, that “if the said servants and agents of defendants in charge of said switch engine caused or permitted the same to be propelled against said cars and the said cars against said Sites and intentionally injured him after they saAV, or by the exercise of ordinary care might have seen, said Sites approaching and attempting to cross said track on which said cars were standing and in a situation of peril from said cars, and after the said servants and agents in charge of said switch engine might, by the exercise of ordinary care, have stopped said engine and avoided such injury, then your verdict should be for the plaintiff in the sum of five thousand dollars.”
I. We have indicated in the statement of this cause substantially the testimony as applicable to the
The testimony in this case is by no means clear and satisfactory as to the approach of this engine to Gfillis street preparatory to coupling to the string of cars which were standing on the tracks upon which plaintiff’s husband was killed. However, for the purpose of treating of this part of the instruction, which submitted to the jury the question of the negligence of the defendants in failing to stop the engine in time to have avoided such injury after having seen the deceased or by the exercise of reasonable care could have seen him in' a position of peril, it may be conceded that this engine was coming from a southwesterly direction through a deep- cut which hid the view of the place where plaintiff’s husband was undertaking to cross the track, until it had almost reached the west side of Grillis street. The facts developed upon the trial of this case indicate that it was the purpose of plaintiff’s husband who was a postman, and had mail for delivery at the Zenith mills, to go from the Bodes cottage across the track where he was injured to the Zenith mills. The testimony further shows that there was a pile of ties south of the track on which deceased was injured and an open space betwen this pile of ties and the track of about five feet, and the only opportunity that the
The facts in this ease show that the deceased was in no perilous position until he undertook to go through the small opening between the cars on that track. We are of the opinion that it is logical that if the engineer saw the deceased approaching this open space where he intended to cross going to the Zenith mills, it must be presumed that the deceased also saw the engine, and that if this was a regular and recognized crossing, both by the public and the defendants, as contended for by the respondent, with the presumption that the deceased saw the approach of the engine, in view of the fact that the engine was about to couple upon the string of cars on the track which the deceased was seeking to cross, the engineer had the right to presume that the deceased would take no steps that would bring him into danger of the cars in the closing of the opening.
The law upon this branch of this instruction may thus be briefly stated: If the place where the deceased was killed was a regular and recognized crossing of the track at that point by the public and the defendants, and the engineer saw the deceased approaching the crossing, he had the right to presume that the deceased had due regard for his own safety and would stop before he reached the point.of peril patent before him. The physical facts show that the crossing of the tracks as indicated on the plat filed in the statement of this case, was at all times attended with peril and dang'er to the pedestrian; in other words, the situation confronted those who desired to cross these tracks with
The rule as above indicated, applicable to the facts in this case, is fully supported’ by the uniform expression of this court in an unbroken line of decisions announcing the ruling in cases embracing a similar state of facts. There is, however, a clear and well-preserved distinction applicable to infants to whom contributory negligence can not be applied and to 'other persons where the facts upon the trial of the cause show that the party approaching the crossing is obviously unmindful of the approaching of the train or is in some way hampered or impeded so that he cannot stop and let it pass. The facts in this case do not place the deceased as falling within the line of cases preserving this distinction.
Where persons are upon the railroad track in plain view of those operating the engine, apparently unmindful of the approach of such engine, or where there is something in the conduct of the person approaching the crossing and about to cross the track at a point where the trainmen are required to keep a lookout, showing that he does not realize the danger or is in such condition as not to appreciate it, then the humanitarian doctrine is applicable and in full force. [Kellny v. Railroad, 101 Mo. 67; Bunyan v. Railroad, 127 Mo. 12; Chamberlain v. Railroad, 133 Mo. 587; Holden v. Railroad, 177 Mo. 456; Morgan v. Railroad, 159 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 678.]
The rule is nowhere more clearly or tersely stated than in Guyer v. Railroad, 174 Mo. 344. Valliant, J., in speaking for the court, thus stated the law: “The theory of the plaintiff is that the man running the engine saw, or ought to have seen, her husband, as'he was thus approaching the tracks. Suppose the engineer saw him; what did he have a right to presume? It was day
The testimony of nearly all the witnesses in this cause indicates that the space between the cars through which the deceased was attempting to pass, was only about two feet. Under the facts developed in this case, his position was not a dangerous or perilous one until he stepped upon the track, and there is an entire absence of any testimony that after he did so defendants’ employees could have in any way averted the injury.
We have carefully considered all of the testimony as applicable to the proposition now under discussion, and the conclusion is inevitable, as was ruled in the eases of Guyer v. Railroad, and Van Bach v. Railroad, supra, that even though it be conceded that the engineer saw the deceased approaching dangerously near the crossing, yet he had a right to presume that Mr. Sites, who was injured and killed, had used his eyes and would act as a reasonably prudent man under the. circumstances and for his own preservation. On the theory that the engineer saw the deceased and that the deceased saw the engine, the presumption logically follows that the deceased would stop before undertaking to cross the track through this narrow -passageway between the cars. That this is what a careful and prudent person would have done under the circumstances is emphasized by the conduct and actions of plaintiff’s own witness, Mrs. Stanley, who crossed at the same place only a few minutes before Mr. Sites was killed. She stopped and would not undertake to go through that narrow passageway until she had made an investigation as to
The testimony in this cause did not warrant the submission of the case to the jury upon the theory of the humanitarian doctrine, and the submission of it to the jury upon that theory constitutes reversible error.
II. This brings us to the consideration of the second and only remaining proposition involved in this ■proceeding, that is, was there sufficient testimony to authorize the submission of this cause to the jury upon the charge of negligence of the defendants in failing to give any signal or warning of the approach of the engine, by which the space or opening between the cars on the railroad track through which the deceased was attempting to pass, was closed?
At the very inception of the consideration of this proposition it is manifest that the testimony on the part of the plaintiff is by no means clear or satisfactory. The crucial question upon this branch of the case is the nature and character of the crossing where plaintiff’s husband was killed. We think it is clear that the testimony in this case fails to show any regularly-used open public street crossing of the tracks at the point where plaintiff’s husband was killed; hence the question is narrowed down as to whether it was such a crossing as is indicated by the allegations in the petition of plaintiff, that is, at a point where “a great number of people are and were at the times herein referred to and for a long time prior thereto accustomed to and did daily cross the said tracks, of all of which facts defendants, through their servants and agents in charge of their said railroad, engines and cars, had notice; that at all the times herein referred to the said William R. Sites, while engaged in the service of the United States Government in carrying and delivering mail to the residents and persons engaged in business at or near the intersection of said railroad tracks with the
The testimony of the witnesses on the part of the plaintiff, as is substantially indicated in the statement of this cause, upon their examination in chief, tends to show that the point where the deceased was killed had been used for a number of years as a place for crossing the tracks by the public in that community and people having business in that neighborhood, but it will be observed upon cross-examination that nearly all of them state that there was no regular place of crossing these tracks in the yards; that people crossed at various places between Gillis street and Lydia avenue, where-ever they could find an opening; in other words, that the place of crossing these tracks largely depended upon the convenience of the particular person and where an opening could be found through the cars, and in fact the record dicloses that there were instances, if no such opening was found, when persons would crawl under or climb over the bumpers on the cars.
While the point at which the deceased was killed may not have been an open public street, yet it does not follow that defendant owned no duty to the public in crossing its tracks at that point. If at the place where deceased was killed, the people for any considerable length of time, as is indicated by the allegations in the petition, had been accustomed to and did daily cross the railroad tracks at that point, and the defendant permitted them, to cross, and recognized their right to do so, and in recognition of this custom and right on the part of the public to cross the tracks at that point, were in the habit of leaving openings for the public to pass over their tracks at that point, under such circumstances defendants owed it to the public and those who were in the habit of passing through such openings to give
If the point where plaintiff’s husband was killed was a crossing for the public as herein indicated, and the public had for any considerable time been using same, and the right of the public to use such crossing was recognized by the defendants, and that it was the-customary and usual method of placing cars on said tracks so as to leave an opening for the public to cross, and plaintiff’s husband came to said crossing and found such opening, then he was justified in acting upon this implied invitation to cross, and it was unquestionably the duty of the defendant to give some suitable or reasonable warning before closing such opening. On the other hand, it must not be overlooked that the opening must be of such a nature and character as to indicate to a reasonably prudent man that the defendants intended that the public should use such opening as a crossing.
It was further stated during the course of the opinion in that case, that “common prudence and care required of plaintiff to look and ascertain whether he could safely pass through that train, and common prudence dictated that he should not recklessly expose himself to the danger of being crushed between those cars. Their very position was a warning to a man of ordinary prudence to stay out. The plaintiff’s conduct savor of reckless rashness.”
If the plaintiff’s husband was killed through the negligence of the defendants in failing to give a proper signal or warning of the closing up of the opening between the cars at the point where death resulted, then she is entitled to recover. But on the other hand, no essential fact should be ignored, and if the death of the husband of plaintiff resulted from his own negigence, there should be no recovery.
The affirmance of this judgmnt in favor of plaintiff can only be justified after a submission of the cause to the jury upon instructions which are applicable to the essential facts necessary to a recovery.
We have indicated our views upon the legal propositions presented by the record before us, and to the end that the parties may be fully heard upon the facts of this case and the law declared covering every feature of the case to which the testimony upon a new trial may be applicable, the judgment should be reversed and cause remanded, and it is so ordered.