Townsend v. Missouri Pacific R. R.Townsend v. Missouri Pacific R. R.
Thе facts found to have been established are stated in the original opinion, and insofar as it is material for the consideration of the case on rehearing, we repeat that the evidence shows that when plaintiff stopped the truck with its rear wheels against the plank approach to the crossing, the motor was not “shut off”, and was making such a noise that it was impossible for plaintiff to have heard the train of cars which was approaching thе crossing.
In the original opinion it was held that the defendant was negligent in its operation of thе train of cars, and we have nothing to add to that conclusion, and the only questions which we shall consider relate to the alleged- contributory negligence of the plaintiff under the fаcts stated.
It is urged that the court erred in finding the plaintiff negligent, and, in - any event, in allowing the defendant to take advantage of plaintiff’s negligence under the facts established, the plaintiff сontending that he had exercised due care when he had momentarily brou'ght the truck to a stop at the plank abutment and had observed the track and not seeing any train approaching on the track had started to negotiate the crossing, and in any event that the action of the defendant in throwing the cars over the' crossing was such gross and wanton negligencе as to debar it from being relieved from' liability under the plea of contributory negligence.
Cоnsidering the question of the negligence of the plaintiff under the facts established, it appеars that while he did bring the truck to a momentary stop at a point which was as near the traсk as it was, in the opinion of the writer, practical for him to get before taking the crossing, yеt from this point the plaintiff’s view of the track to the north, with the exception of a short distance of approximately eighty feet,' was obstructed by a house situated near the traсk, and that he did not listen, or if he did listen, he could not have heard the approaching cars, due to the noise made by the motor.
The jurisprudence of this state is well settled as to the duty of a traveler on the highway to stop, look and listen before going upon a railroad сrossing, and while there aré situations in which it has been held that one may be absolved of the duty to come to a position of immobility when their senses of sight and hearing may he exercised without so doing, we do not think that the plaintiff, having knowledge of the obstruction of the view at the point where he stopped the truck, was in the exercise of ordinary care in attempting to pass over the crossing without having listened for the approach of the cars.
“The travеler * * * is rigidly required to do all that care and prudence would dictate to avoid injury, and the grеater the danger, the greater the care that must be exercised to avoid it; and where, because of physical infirmities, darkness, snow, fog, the inclemency of the weather, building or other obstructions and hindrances, it is more than usually difficult*305 to see or hear, greater ■ precaution . must; be taken to avoid injury than would 'otherwise be necessary.”,
7 Am. & Eng. Ency. Law, page 435.
Vincent vs. M. L. & T. R. R. & S. S. Co.,
Considering the question as to whether or not the negligence of, the defendant was of such nature as would bar it from pleading contributory negligence and of taking advantage of the' negligence of the plaintiff, this doctrine, insofar as it relates to the negligence of the operators of trains аt crossings, is confined to the situation of the place, as where the crossing is in a city or оther populous district which the operators of the trains are presumed to know is being constantly used by the public; in ' such cases the operators of trains may well be presumed tо be conscious of the probable consequences of the omission of proper precautions and in this manner held to have been wanton or reckless; but in the presеnt instance, the crossing was not in a city or populous district; .it was not a “public crossing” in the sеnse that it was a part of the public road, and the evidence shows that it was seldom used and then only by the employees of the Lee Lumber Company, and we are of the opinion that the defendant, although it did not exercise due precautions and was guilty of negligencе in operating its train over the crossing, the situation of the place was not such as to render its omissions wanton or reckless, and to' bar it from taking advantage of the contributory negligence of the plaintiff..
For the reasons assigned, it is therefore ordered, adjudged' and decreed that the' former opinion and judgment rendered ’ herein be reinstated and made the judg^ ment of this court, and that plaintiff’s demands be rejected at his cost.