298 S.W. 795 | Mo. | 1927
Lead Opinion
This cause is now being considered upon the rehearing, granted by this court. The plaintiff is the widow of Charles J. Toeneboehn, deceased, who was killed on July 16, 1922, when an automobile truck driven by him was struck by the engine of one of defendant's passenger trains, at the crossing of defendant's track and Vermont Avenue, a public highway in St. Louis County, not far distant from the limits of the city of St. Louis. The plaintiff had a verdict and judgment for $8,400.
Vermont Avenue runs north and south, and the deceased was driving northward. Defendant's track approaches and crosses Vermont Avenue from southeast to northwest, and the train was running from southeast to northwest. The track approaches the crossing at an acute angle. The inner angle of the intersection of Vermont Avenue and defendant's track is only a little more than twenty-eight degrees. The crossing is in a cut, and in approaching it from the south, on Vermont Avenue, there is a descending grade; and defendant's track approaches from the southeast upon a descending grade. There is an embankment along the southwest side of defendant's track on the east side of Vermont Avenue, and near the crossing; and, at the time of the occurrence, there was a growth of grass and weeds upon the embankment, and there was a mile-post sign on the southwest side. A more particular description of the physical surroundings will be given later.
Vermont Avenue extends northward from the village of Afton, or from Gravois Road, in St. Louis County, to an intersection with a road known as Heege Road, at a point four or five hundred feet north of this crossing. Afton is upon the line of defendant's road, that being the name of the postoffice, but the station at that place is known *1102 as Gravois Station. It is a little more than a mile south, or slightly southeast, from the crossing in question.
The petition alleged that what was known as Gravois Road, running into the city of St. Louis, was part of a state highway; and that, at and prior to the time in question. Gravois Road was under construction, and vehicular traffic into and out of the city detoured upon Vermont Avenue and Heege Street. The community was populous, and there was testimony that 500 or 600 vehicles passed daily over the Vermont Avenue crossing.
The petition charged negligence in seven particulars, but in the plaintiff's instruction submitting the case and authorizing a recovery, three acts of negligence were specified: (1) operating the train at a greater rate of speed than was reasonable, having regard to the time, place and circumstances, and the conditions existing at the crossing; (2) failure to give the statutory signal by bell or whistle, and (3) failure to keep and maintain a watchman, flagman, alarm bell or other warning device at said crossing. The evidence shows that the train in question was a through passenger train running from Memphis to St. Louis, and was thirty-five or forty minutes late, and was running at a speed of thirty-five or forty miles an hour; that defendant did not maintain a watchman, flagman, alarm bell or other warning device at said crossing. The evidence as to the giving of the statutory warning signal by bell, or whistle, is somewhat conflicting, but defendants had much evidence tending to show that the statutory signals were given. The answer, after a general denial, pleaded contributory negligence on the part of the deceased, in running his automobile in front of and so close to the locomotive and train that the train could not be stopped in time to avoid striking him; attempting to cross without looking or listening and when he saw, or by the exercise of ordinary care could have seen, the train in time to have avoided injury; attempting to cross without stopping to look or listen, when by so doing he could have discovered the approach of the train, and driving his automobile at an excessive, unlawful and dangerous rate of speed in approaching the track, when he knew, or by the exercise of ordinary care could have known, that a train might pass on said track at any moment. The reply was a general denial.
There was no issue in the case under the humanitarian rule. Defendant complains of the instructions given for plaintiff, but the first and paramount question arises upon the assignment that the trial court erred in refusing to give the peremptory instruction offered by the defendant at the close of plaintiff's case, and at the close of the whole case.
It is contended for defendant that there was no evidence authorizing submission to the jury of the question whether the speed of the train was unreasonable or negligent, and that plaintiff's Instruction *1103 2 was erroneous in submitting that question. Otherwise, there is little effort to show there was no substantial evidence of primary negligence on the part of defendant; but the claim emphasized is, that deceased was guilty of contributory negligence as a matter of law. The issue made calls for a consideration of the evidence as to the circumstances under which the deceased lost his life.
Charles J. Toeneboehn lived about one mile from the crossing in question, and had ridden over it many times and was familiar with the surroundings. He was forty-eight years of age and was a contractor and builder, and upon this occasion he was on his way into the city of St. Louis, where he was engaged in building construction. He was unaccompanied, and drove a Dorris motor truck, which he had owned and driven for a number of years. The truck was described as a right-hand-drive machine. It had what was spoken of as an express top. The time was a little before eight o'clock in the forenoon. The plaintiff called no witness who saw the collision between the truck and the train. The only witnesses who claimed to see the truck immediately before it went upon the track, called by defendant, were the fireman, and another employee of defendant, who was a passenger and testified that he sat in the chair car on the southwest side of the train.
The testimony as to the physical conditions existing at and near the crossing requires attention. The plaintiff called as a witness a civil engineer, who testified that shortly before the trial he had made a survey of the crossing and its surroundings. He testified that from the crossing, southeast, the track was straight for a long distance, and he determined that the inner angle of the intersection of Vermont Avenue and the defendant's track was a little more than twenty-eight degrees. He determined the rise in the grade of Vermont Avenue, starting from the crossing and going south. He said that in the first fifty feet there was a rise of nine-tenths of a foot; in the next fifty feet a rise of two and four-tenths feet, and a rise of two and five-tenths feet from the 100-foot point, to the 150-foot point south of the intersection; that in the next fifty feet, going south, there was a rise of two feet in the grade, and in the next fifty feet, going south, a further rise of one and four-tenths feet. Thence, there is a slight continuous rise for about 450 or 500 feet. There was thus a fall of three feet and four inches in the 100 feet next to the crossing. According to his testimony, there was a hill in the acute angle of the intersection between Vermont Avenue and defendant's track. This hill or ridge is higher in the center than it is at the line of defendant's right-of-way, or at the east line of Vermont Avenue. It thus slopes downward toward the defendant's track, and toward Vermont Avenue, but, as we understand the testimony, the slope toward the railroad is more abrupt. He testified as to the height of the embankment *1104 on the southwest side of defendant's track, going southeast on defendant's track from the intersection. He said: "South of the intersection the top of the embankment is six and five-tenths feet higher than the rails; at 150 feet it is about five and nine-tenths feet higher; at 200 feet it is six and five-tenths feet; at 250 feet it is six and four-tenths feet — that is, the edge of the cut just west of the tracks." He said: "The high point westwardly is between the cut and Vermont Avenue, at 150 feet; that is twelve and five-tenths feet higher. At 200 feet south it is eleven and five-tenths feet higher. At 250 feet, it is about twelve feet higher. At 300 feet, it slopes out practically the same height as it is at the edge of the cut along the railroad track on the west side of the railroad. At 300 feet, the top of the embankment is six and four-tenths feet higher than the top of the rail. At 350 feet it is six feet higher; at 400 feet it is five feet higher; at 450 feet it is two and eight-tenths feet higher; at 500 feet it runs out." He testified that the hill, or ridge, is nearer the railroad track than Vermont Avenue. As to the visibility of the railroad track to one going north on Vermont Avenue toward the intersection, he testified that from a point about 500 or 600 feet south of the railroad track, going northward on Vermont, the tracks are visible there, and said they were visible until you get within about 250 feet of the intersection. He added: "There you lose the view of it, that is, looking toward the north, the way you are travelling. If you turn and look to the south, of course you can see it through that low swale, a considerable distance south." He testified that at a point seventy-five feet south from the intersection of Vermont Avenue and the railroad track, the track was visible, looking at right angles to Vermont Avenue; that from a point seventy-five feet south of the intersection, the track at the point due east, was about forty or forty-one feet from Vermont Avenue. He further testified that a man "sitting in an automobile on Vermont Avenue at a point 100 feet south from the crossing could not see the locomotive passing by 100 or 150 feet south from the intersection, if the locomotive was opposite to him." It is impossible, to us, at least, from the examination of this witness as shown in the record, to get a definite picture of the scene sought to be portrayed. The witnesses said at a point 100 or 150 feet south of the intersection you could not see a locomotive opposite, or looking east at right angles, but that at a point on Vermont Avenue seventy-five feet south of the intersection looking eastward at right angles, the tracks are plainly visible; but, it is impossible to say from his testimony whether he meant that they continued to be visible from that point on, to the crossing, or not.
The intervening and important question here, is that of the visibility of a train to a person going north on Vermont Avenue, and approaching near this crossing. Turning to the testimony of plaintiff's *1105 lay witnesses, Edward Toeneboehn said: "When you travel north on Vermont Avenue there is a hill towards the right, or east of Vermont, approximately ten or twelve feet high; it is a steep hill; it is not terraced, or nothing; it is a hill that runs straight up; that continues toward the railroad track, to a point up this far; I cannot say the exact measurements; I would judge about six feet. I have driven in a machine over that railroad track many times, and have stopped there. Judge I was six feet from the railroad track when I came to a stop before I had a line of vision up the road eastwardly on the track. When you get to the track with your automobile you have to be almost entirely on the track, then you have to turn around and look at an angle. When I say six or eight feet, I mean from the point where I stood, my vision."
August Dietjen, another witness called by plaintiff on his re-direct examination, testified: "In order to get a view of the tracks to the right as you go northwardly on Vermont Avenue you would have to be up on the graded part of the railroad embankment in order to look up the track. Cannot say how many feet that is from the rail; could not state any exact measurement. By `graded part' I mean it is cut through there wide enough to lay the tracks, and on the side of the tracks they have a ditch; you have to be in the part that they cut out in order to look up the tracks. Don't know how wide the cut is; cannot say whether you would have to be as much as thirty feet from the rails in order to look up the track; cannot say because I don't know the distance, don't know the number of feet, don't know whether it would be thirty feet or more."
Herman T. Reim testified for plaintiff: "I went by that crossing probably an hour and a half after the accident, and drove within, say, about two feet or so of the track. There was a high embankment on the right-hand side, and it was overgrown with weeds, almost up to the track, and there was a whistling post — anyway some kind of post — in the embankment to the railroad track, and there was also weeds growing between there which kind of obscured my view. I did not have a view of the track over the hill, unless it was back from the railroad track, say about 300 or 350 feet, before I got to the railroad track, going north."
S.D. Hodgdon, Probate Judge of St. Louis County, and president of the St. Louis County Automobile Club, said that he was familiar with this crossing. He testified: "I have driven northwardly on Vermont Avenue. Vermont Avenue is downgrade towards the railroad track; on the right hand, that would be going north, there is an embankment which is, I should say, about the height of an automobile, and runs south from the railroad, I should say, about 150 or 200 feet. I made a stop at the railroad track to observe a train approaching from the east or south every time I crossed it. I had to be within *1106 about four and one-half feet of the outside track before a clear view of the track is visible; the railroad and the wagon road going through at this particular point and crossing in the cut prevents your obtaining a clear view until you reach that point. At that point there is a single track, and trains operate over the track in both directions. When you are travelling northwardly, in order to look for a train coming from the east or southeast you would have to look backwards partly, and then across on an angle. The wagon road crosses the railroad on an angle."
The testimony of the civil engineer was that the whistling post was 1390 feet southeastward from the crossing and on the east side of the track; also, that not far distant from this post was a manure pile, to which some of defendant's witnesses made reference in their testimony, as locating the point at which they said the crossing whistle was sounded. The manure pile was 1360 feet south of the crossing, and fifty-seven feet east from the center of the railroad track.
Eugene Brinkop, driving south, saw the deceased a little before he drove on the crossing, and testified: "I passed over the Vermont Avenue crossing of the railroad tracks at about eight o'clock in the morning, and passed Charles Toeneboehn driving northward, on the road. I knew him very well. I passed him at a point about 200 feet south of the crossing." The witness said that he and Toeneboehn waved to each other as they passed, but neither of them stopped there; that Toeneboehn was driving a truck and was going very slow; that he did not see any train before he saw Toeneboehn, and did not hear any train; that as he passed Toeneboehn, down about 200 feet from the crossing, he (witness) continued on south, and when he came to a point between 400 and 500 feet (from the crossing) he heard a whistle; that he looked and saw the train; that he continued on and then looked back; had gone probably fifty or 100 feet before he looked back; that he saw a flash, and figured the train had hit something; did not know whether Mr. Toeneboehn had crossed the track or not; that he wondered at the time whether or not he had crossed it; that he could not see the train as it crossed on Vermont Avenue — the grade of the hill prevented it. The witness said that he had gone southwardly from the railroad crossing a distance of approximately 500 feet, on Vermont Avenue, when he first heard the train whistle. He said: "When I heard the train whistle, I continued on. I saw the train at the time I looked, in an easterly direction, east and south, perhaps a little bit south. When I first heard the train whistle it was between 700 and 800 feet from the crossing. I measured it by stepping it off." He indicated the spot to Mr. Dziatzko (the civil engineer) and he measured it. Witness further testified: "When I heard the train whistle, it was, I should say, about 400 or 500 feet north of the whistling post." He testified that he drove back later *1107 on the day of the accident, on his way back to St. Louis, and observed the conditions. He said: "I approached within ten or twelve feet of the railroad track, before I could look southeasterly down the track. The track runs across there at an acute angle, and you have to look southeasterly in order to see a train approaching from the south." This witness further testified: "Before I heard the whistle 700 feet from the crossing, I did not hear any other signal from the approaching train. I did not hear any bell. I heard two whistles. I heard the first one when my attention was first directed to the train, and the fact that the train was coming. I had not seen or heard the train before that. I looked back just an instant before I saw this flash, and that is when I heard the second whistle." The testimony shows that the train ran approximately 2000 feet beyond the crossing; that the deceased and parts of the truck were on and about the pilot of the engine.
It may be proper to state now that upon the question whether defendant's peremptory instruction should have been given, the position of counsel for plaintiff is, that upon the question of the primary negligence of defendant, plaintiff made a case to go to the jury; and that, since under plaintiff's case there is no evidence to show the conduct of the deceased immediately before or upon entering the track, the presumption is to be indulged that he was in the exercise of ordinary care for his own safety, and that thereunder, the case could not be taken from the jury by virtue of the evidence introduced by defendant.
The defendant introduced several persons, members of a family living on the west side of Vermont Avenue at a distance of between 100 and 200 feet from the crossing.
Elmer Horst, fourteen years of age, testified that on the morning in question he and his brother were loading horse-radish at a point about 200 feet distant from the railroad tracks, but where they could not see the crossing; that they saw Mr. Toeneboehn drive northward upon the road, in his truck; that he was about 200 feet from the crossing; that they watched him for thirty or forty feet and turned to their work; that he was driving slow; that they noticed this train whistle, and first noticed it whistle when it was by the manure pile; that it whistled all the way down to the crossing. Elmer Horst testified that he did not hear the bell ring; did not know whether it was ringing or not. His brother, Erwin Horst, twelve years of age, who was with him at the time he saw Mr. Toeneboehn driving along when about 200 feet south of the crossing, said that he saw the train and the first thing that attracted him to the train was the whistle; that at the time it was near the manure pile and the whistling post; that it sounded like the whistle was continuous up to the time of the crash; that he did not notice whether the bell was ringing or not; *1108 that he did not see Mr. Toeneboehn again after he saw him at a point about 250 feet south of the crossing, but heard the crash when the train struck the truck; that Mr. Toeneboehn "was driving slow" when he saw him. Both said they watched deceased drive thirty or forty feet, and then turned to their work.
Mrs. Lydia Horst, mother of the witnesses last mentioned, testified that at the time of the accident she was in the house; that she heard the train; was first attracted to it by the whistle; that it seemed like one continuous whistle to her. Further on she testified she did not hear the train coming; that she imagined she heard the crash when it got to the crossing; could not estimate the time between when she first heard the whistle, and heard the crash.
Frank Williams, the fireman, called by the defendant, testified that he was in his position on the left side of the cab of the engine; that the whistle was blown for the Vermont Avenue crossing; that the whistle — two longs and two shorts — was not only given before they got to the whistling post, but as they got to the whistling post and after they passed the whistling post; that the engine had an automatic bell ringing; that the bell was set to ringing before they reached the Gravois crossing, and was still ringing; that from the time they passed Gravois Station, until the collision, they must have given twelve or fourteen blasts of the whistle. This witness testified that he did not see the truck until just before it was struck; that when he first noticed the truck "we must have been fifty or sixty feet from him — from the crossing;" that he judged deceased was about fifteen or eighteen feet, maybe farther, from the crossing — from the track; that he noticed no stopping or slowing up of the truck or movement about slowing up; that in his judgment the truck was going probably fifteen or twenty miles an hour. This witness also said: "Before we struck the truck I called to my engineer, `Big hole,' and he reached for his brake valve; that the truck was so close, going at the rate of speed it was going, it was impossible to stop at that distance; and the train was running thirty-five or forty miles an hour." On his cross-examination the fireman was asked as to the testimony given by him at the coroner's inquest. He was asked if the following question was asked and the following answer given by him to the coroner:
"Q. Tell this court what you know of this accident. The Witness: I was ringing the bell. It is a very steep grade there; when I first saw him, from the way the car was stopped, the front wheels were over the rail; it was done so quick that I hardly knew what happened."
"Q. Did you testify before the coroner to that effect? A. Yes, sir." *1109
Curtis Thompson, an employee of defendant, testified that he was travelling on the train in question, going to St. Louis for treatment; that he was seated on the left-hand side of the train, and looking out to view the country; that as they came along he noticed an automobile truck to his left, going in a northerly direction, coming on at an angle to the course of the train; that he stuck his head out of the window when he "first seen the man and heard the whistle;" that he noticed the truck for a few minutes; that he saw the man; supposed the man was looking over the steering wheel; and that the automobile went out of his sight for a moment or so; that the last time he saw it, he heard the crash; that the second or last time he saw it, it was fifteen or twenty feet from the track; that it was moving northward, going toward the crossing; did not stop, but just kept going; that the next thing that happened he heard the crash.
"Q. Did you notice the driver of that car when you saw it the second time as he approached the tracks? Could you tell what he was doing? What direction he was looking? A. I did not see that. The second time, I could not say I noticed the man. I just noticed the truck as it dashed on. I noticed the truck as it seemingly dashed upon the railroad."
Further testifying, he said that the truck did not stop, or attempt to stop, or slacken its speed; that the whistle began to blow about the time he first saw this truck; that the truck was going about fifteen miles an hour; and that this was when about one-half mile from the crossing; that the "whistle blowed a number of times," and that he heard the engine bell ringing on the train. On his cross-examination he estimated the speed of the truck at fifteen miles an hour, and the speed of the train at thirty-five to forty miles an hour. He did not remember seeing any other automobile, or seeing the building — the Horst residence. The Horst brothers made no mention of seeing the automobile of witness Brinkop.
In rebuttal, the civil engineer testified that a line, drawn to the manure pile from the point where Elmer and Erwin Horst stood when they heard the whistle sounded, would intersect defendant's track at a point 870 feet south from the crossing. Plaintiff also recalled the witness Brinkop, who testified that he passed deceased about 200 feet south of the crossing, and at that time deceased was entering the cut; that the train was between 700 and 800 feet from the crossing when he first heard it whistle; that he heard no blast of the whistle before that.
The testimony of witness Reim on his cross-examination, was that the Dorris truck operated by deceased, when going ten miles an hour, could be stopped in about six feet. He said he had never driven that truck, but had ridden in it with deceased; and that going twenty miles an hour he (witness) could stop it in less than twenty feet, if *1110 he had to, and going five miles an hour could stop it almost immediately.
As we have already indicated the chief claim of counsel for defendant is that the general peremptory instruction should have been given; and upon the ground that the deceased was guilty of contributory negligence; but, there is also the assignment raising the question whether the defendant was guilty of negligence. At the close of the case, defendant offered certain withdrawal instructions, which, if given, would have withdrawn the issues of failure to give the statutory warning, and failure to have a flagman, watchman, bell or other device at the crossing, and also the issue of negligent speed of the train.
There is no statute regulating train speed at country crossings, and it has always been held by this court that in the country, between stations, away from congestedSpeed of populations, it is not negligence for a passenger trainTrain. to run at a rapid speed over railroad crossing. [McGee v. Wabash Railroad, 214 Mo. l.c. 541.]
The question then is one of common-law negligence. "Negligent speed at common law is dependent upon all the surrounding circumstances. [Heinzle v. Railway Co., 182 Mo. l.c. 555; Beier v. St. Louis Transit Co., 197 Mo. l.c. 231; Klockenbrink v. St. Louis Ry. Co., 172 Mo. l.c. 690; Montague v. Ry. Co.,
Under all the circumstances in this case we hold the question whether the speed of the train was negligent, was a question for the jury.
There is no statute, and in this case no ordinance, requiring maintenance at this crossing of a flagman, watchman, bell or other warning device. The failure to maintain a flagman or bell at the crossing was not negligence per se. There is noFlagman dispute as to the fact that no flagman or warningor Other device was maintained at this crossing. There may beWarning. circumstances under which warnings other than those required by statute should be given. [Burger v. Mo. Pac. Ry. Co.,
The contention is that there was no evidence that there was a failure to give the statutory signal required by Section 9943, Revised Statutes 1919. Upon this the evidence for plaintiff was the testimony of the witness Brinkop, who testified that when he heard the first whistle the engine was 400 or 500 feetWhistle past the whistling post, or, within 700 or 800 feet ofand Bell. the crossing, and that he heard no whistle before that; and, that he heard the second whistle an instant before he saw the "flash," and, according to his statement, at the time the train was very near the crossing; and his testimony further was that he heard no bell. By the statute, if the warning be given by the whistle, the whistle must be sounded at least eighty rods from the crossing, and be sounded at intervals until the engine shall have passed the crossing. If the signal be by ringing the bell, the bell must be kept ringing until the engine shall have passed the crossing.
The testimony of Brinkop is somewhat negative in character, but, as was said in Stotler v. Railroad, 200 Mo. l.c. 137, the fact to be proved was a negative fact. According to his testimony, Brinkop's attention was first directed to the train by hearing the whistle, which, as he said, was then 400 or 500 feet past the whistling post, and he heard no other whistle until it was almost upon the crossing. His attention was upon this train because he had just passed the deceased and he said he wondered whether the deceased had reached or passed the crossing. Defendant had testimony not only that the whistle was sounded at the whistling post, but was continuously being sounded to the crossing, and that the bell was ringing during that period. The defendant had the testimony of other witnesses, the Horst brothers, that the whistle was sounded up near the manure pile, and was continuously sounded thereafter, but both of them said they heard no bell. For the purposes of this inquiry plaintiff is entitled to have the evidence in her favor taken as true, and is entitled to all reasonable inferences to be drawn therefrom. Under the evidence we hold that the question whether the statutory signal was given at the whistling post, and the signal whether by bell or whistle, continued until the train reached the crossing, was a question for the jury.
Upon the issue most stressed, that the deceased was guilty of contributory negligence as a matter of law, counsel for defendant invoke application of the statute (Laws 1921, 1st Ex. Sess., p. 91, sec. 19) as construed in Threadgill v. Railway Co.,Degree
It is argued that the situation was such that, for deceased to look, was to see; and to listen, was to hear; and it must be presumed either that he did not look or listen, or that he did not heed what he saw or heard; and that his negligence conclusively appears, and the case is within theContributory rulings in Monroe v. Railroad,
Counsel for plaintiff, in their presentation of the case, urge that the plaintiff made a prima-facie case of failure of defendant to give the statutory crossing signals; that under the circumstances of this case, such failure is to be presumed to have been the cause of the death of the deceased; that under the circumstances of this case also, the presumption arose that the deceased was in the exercise of ordinary care, and not guilty of contributory negligence; and that this presumption, arising upon plaintiff's evidence and not dispelled by plaintiff's evidence cannot be overcome as a matter of law by the oral evidence for defendant, whether such oral evidence was contradicted or not.
We have held there was evidence to go to the jury on the question whether the statutory signals were given. Under that view, the plaintiff made a prima-facie case, unless it also appeared from the plaintiff's case that deceased was guilty of contributory negligence. *1113
In cases where plaintiff's evidence tends to show that the statutory signals were not given, there is the presumption that the failure to give them was the proximate cause of the injury, and the burden of proof is upon defendant to show the contrary. [Pryor v. Payne,
According to the testimony of the engineer, one at a point on Vermont Avenue, seventy-five feet south of the crossing, by looking at right angles, could see the track, which, he said, at that point, was forty or forty-one feet from Vermont Avenue. The contention of defendant upon this point leaves out of consideration the testimony of the other witnesses to the effect that, because of the embankment and the growth of weeds and grass thereon, and the acute angle made by the crossing when approaching it from the south on Vermont Avenue, one had to be within a few feet — the witnesses gave it as from four and one-half feet to ten feet of the rails — before you had a clear view of the track. The distances of the truck and the train, respectively, from the crossing, until as they actually reached it, cannot be definitely fixed. It cannot be determined when the driver of the truck looked; or, what effort he made, after looking, to stop the truck, except by inference from the fireman's admission. The evidence of plaintiff's witnesses, and of some of defendant's witnesses, was that when he was last seen by them, about 200 feet from the crossing, the truck was moving "slow," or "very slowly," or, at a "very slow gait."
The cases cited for defendant all stress the duty of the traveller to look and to listen in approaching a railroad crossing, a place, which in itself, is a signal of danger. The cases differ widely from each other in certain particulars. In some, the party struck was killed, and in others was injured and testified as to what he did, and what he saw. Generally, it was held the plaintiff could not recover, because facts showing the plaintiff's contributory negligence were developed in the process of attempting to make the plaintiff's case. In Porter v. Mo. Pac. Railway,
The next assignment of error is directed against plaintiff's Instruction 2. The first objection made is that it submitted the question of negligent speed of the train, when, it is urged, there was no evidence from which the jury could findSpeed of that the speed of the train was unreasonable orTrain. negligent. In a preceding paragraph we have held that the question whether the speed of the train was negligent depended upon all the conditions surrounding the crossing — the acute angle, the obstructions to the view, the amount of travel over it, and also, in respect to the question of speed of the train, the fact, not disputed, that there was no flagman, watchman or bell, or other warning device at the crossing. All of these co-existing and related things bore upon the question of what was reasonable speed, or ordinary care in approaching the crossing. The question was one for the jury. *1116
It is next urged that said instruction is erroneous in that it authorized a verdict for plaintiff if defendant failed to give the statutory signal by bell or whistle, and that it was so framed as to require the giving of both, whereas the statute is complied with by the giving of the one or the other. The statute, Section 9943, Revised Statutes 1919, requires theWarning giving of the one or the other, but not the givingby Bell of both, and it has been frequently so construed.and Whistle. [Turner v. Railroad,
Complaint is made of the final paragraph of said Instruction 2. This paragraph is as follows: "Or if the jury further find and believe from the evidence that the surrounding circumstances and conditions of said crossing on and prior to July 14, 1922, rendered said railroad crossing unusually dangerousStandard of and hazardous and that under the circumstances andOrdinary conditions then existing you find and believe fromCare. the evidence that railroad management in the exercise of ordinary care required that a flagman or watchman, or alarm bell or some other device or means be placed at said crossing to warn persons crossing said railroad at said place of the approach of trains thereon, and if you further find that defendant failed to use such precaution as you may find from the evidence ordinary care required; and that in so doing, if you so find, any or all of the aforesaid acts or things caused the said Charles J. Toeneboehn to be injured and killed, if you find that he was injured and killed, without any negligence on his part directly contributing thereto, then your verdict should be for the plaintiff." The chief objection made to the paragraph quoted is that it permitted the jury, without any evidence to guide them, to set up their own standard as to what "railroad management in the exercise of ordinary *1117
care" required with respect to placing a watchman, flagman or alarm bell or other device at the crossing. Condemnation of so much of the instruction is urged under what was said in Chrismer v. Telephone Co.,
Complaint is made of Instruction 4 for plaintiff under the claim that it informed the jury the deceased was not guilty of contributory negligence, if they found that he exercised ordinary care; and it is urged that the measure of care requiredHighest of him was the highest degree of care. As to this it isDegree enough to refer to what has heretofore been said and toof Care. the fact that defendant in its own behalf asked and was given like instructions, making "ordinary care" the measure of care to be observed by the deceased.
Complaint is made of plaintiff's Instruction 5, which told the jury that contributory negligence on the part of deceased will not be presumed merely from the fact that he was injured and killed, but that contributory negligence on his part in order to constitute a defense, must be shown by aFailure preponderance of the evidence. The objection made isto Look that the instruction was prejudicial, because, underor Listen. all the evidence, for deceased to look, was to see, and to listen, was to hear; that under those circumstances the presumption arose that he did not look or listen, or, that if he did, he did not heed what he saw or heard. The objection is but a repetition of the contention heretofore considered — that deceased was guilty of contributory negligence as a matter of law. Under that we have given consideration to the cases cited: Kelsay v. Railroad,
Counsel for defendant argue that the fireman from his place in the engine and at a distance of from fifty or sixty feet from the crossing, saw the truck of deceased when fifteen or twenty feet from the crossing; and that, if the fireman could thus see the deceased, the deceased could equally have seen the train. But that statement of the fireman cannot entirely control. His other admitted statement and the other circumstances shown must be allowed to carry their natural or reasonable inference. Under certain of the matters detailed it could be seen that a locomotive, coming as this one was at a speed of more than sixty feet per second, and first seen when it was 100 feet or more away, might catch the truck, which halting, came on the crossing in an endeavor of the driver to look down the track.
Objection is made to plaintiff's Instruction 6 on the amount of the recovery. It is said that the instruction does not direct the jury to assess a penalty against the defendant in the event they found for plaintiff, but proceeds upon the theory ofPenalty damages, and authorizes the jury in determining theor Damages. amount of their award, to consider pecuniary loss. The instruction does not use the word "penalty," nor does it use the word "damages." The instruction complained of is a literal copy of the instruction given in Ward v. Mo. Pac. Ry. Co., 277 S.W. l.c. 912, and there set out. The giving of that instruction was held not reversible error upon hearing of that case, in Court en Banc; and this point is also ruled against defendant.
Following the conclusions heretofore stated, the judgment is affirmed. Seddon and Ellison, CC., concur.
Addendum
The foregoing opinion by LINDSAY, C., is adopted as the opinion of the court. All of the judges concur. *1119