Henry, J.
This is an action to recover damages for an injury to plaintiff’s team of horses and wagon, by a locomotive of defendant passing over its road. The allegation of the petition is, that the said locomotive ran against said horses and wagon, driven by plaintiff, in consequence of the negligent and careless manner in which it was managed by defendant’s servants, who neglected to blow the whistle or ring the bell as the locomotive approached the crossing at which the accident occurred. The answer is a general denial, and also contains the following special defense: “ That at the time of the said alleged injuries and grievances, the defendant’s road was in the charge and control of one Sidney McWilliams, who had theretofore been appointed receiver thereof, by the circuit court of Livingston county, Missouri, in a suit wherein one Lemuel W. Morse was plaintiff, and this defendant and •others defendants, and each and every one of defendant’s officers, servants, agents and employes, enjoined and restrained from managing, controlling or operating defendant’s road.” This, on motion of plaintiff, was by the court ■stricken out. A trial resulted in a verdict and judgment for plaintiff, from which defendant has appealed. At the close of plaintiff’s testimony defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused.
i. receiver-, corbie for ws acts, The court erred in striking out the special defense set up in the answer. If the plaintiff' had a cause of action on the facts alleged in his petition, he could, with leave of the Livingston circuit court, and not otherwise, have sued the receiver; (Barton v. Barbour, 13 Rep. 129; s. c., 104 U. S. —; but he had no cause of action against the railroad company if the facts stated as a special defense are true. Upon what principle can a company be held liable for any injury inflicted upon any *605one by a train of ears of which the company had no control ? Can the right to operate and manage its road and rolling stock be taken from the company and given to a receiver, under whose control and management it is operated, to the exclusion of the company, and yet the latter be responsible to a person injured in consequence of the negligent operation of the road by such receiver ? The question suggests its answer, and it is adverse to the plaintiff. In the brief of respondent’s counsel, it is stated that the-injury to the horses and wagon in question occurred before McWilliams took-charge of the road, but this would have appeared much better in a replication than in a brief.
2. a case of congence. As, for the error here noticed, the judgment will be reversed, it is proper to add, that on the authority of Fletcher v. Pacific Railroad Co., 64 Mo. 484" court="Mo." date_filed="1877-04-15" href="https://app.midpage.ai/document/fletcher-v-atlantic--pacific-railroad-8005576?utm_source=webapp" opinion_id="8005576">64 Mo. 484; Harlan v. St. L., K. C. & N. R. R. Co., 64 Mo. 480" court="Mo." date_filed="1877-04-15" href="https://app.midpage.ai/document/harlan-v-st-louis-kansas-city--northern-railroad-8005575?utm_source=webapp" opinion_id="8005575">64 Mo. 480; 65 Mo. 22" court="Mo." date_filed="1877-04-15" href="https://app.midpage.ai/document/harlan-v-st-louis-kansas-city--northern-railway-co-8005606?utm_source=webapp" opinion_id="8005606">65 Mo. 22; Henze v. same, 71 Mo. 636" court="Mo." date_filed="1880-04-15" href="https://app.midpage.ai/document/henze-v-st-louis-kansas-city--northern-railway-co-8006531?utm_source=webapp" opinion_id="8006531">71 Mo. 636; Purl v. same, 72 Mo. 168" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/purl-v-st-louis-kansas-city--northern-railway-co-8006560?utm_source=webapp" opinion_id="8006560">72 Mo. 168, the demurrer to the evidence should have been sustained. The evidence for plaintiff showed that the-gravel road from Hannibal west runs parallel with defendant’s road for a quarter of a mile east of the crossing at which the injury complained of occurred. Eor that distance the roads are about 100 yards apart. Plaintiff was traveling west, and the locomotive which struck his team was moving in the same direction. Plaintiff testified for1 himself that he was returning home from Hannibal; that he looked back when he got to Mrs. Barbee’s gate, but the brush was so thick he could not see a locomotive. -The gate is on the right-hand side of the gravel road going west, about twenty yards from the railroad. Was going home in a tolerable fast trot, in á two horse wagon. The locomotive was running backwards. It did not blow the whistle or ring the bell; that he looked after he passed Barbee’s gate, but the brush was so thick that he could not see the engine. Hixon, for plaintiff, testified that in traveling on the gravel road going west you can see a train of cars fifty yards this side of the railroad. Think you can *606see a train of cars going west at any point 200 yards this side of the railroad, going along the road there, and could have seen that engine and tender; saw the train all the time after it passed me, but did not hear it. Know nothing to prevent plaintiff from seeing it. Don’t think he stopped. I was going west. Madden, for plaintiff, testified that fifty yards from the crossing, along the gravel road, could not have seen the train on account of the brush. Wm. Brown, for plaintiff, testified: The railroad company owns all the land between the gravel and railroad, within fifty feet of the latter. You can see the railroad there; don’t know that you can see the tracks; it is my opinion you can see an engine there. The railroad is lower than the corner at the crossing; think, after you get down, you couldn’t see for the brush, but after you get up on the gravel road my recollection is that you can see a train anywhere along there. Henry Hayden, for plaintiff: A man on the gravel road could have seen the smoke and heard the engine, if he had looked and listened. Bird, for plaintiff: For a quarter of a mile from the crossing the gravel road and the railroad run parallel. The gravel road bears north but turns south to cross the railroad, south of Barbee’s gate. For some distance east and west there was a growth of brush on the side of the railroad track, and the bank it grew upon is from four to six feet high. If a man had stopped within 100 or 150 yards of the crossing, and taken a good look and listened, he might have seen the tram coming.
This was substantially the evidence for plaintiff, except that relating to the injury and its extent, which we omit as immaterial to the determination of the question involved, and on the authority of the cases above cited the plaintiff, on the evidence, was not entitled to a verdict He says he looked for the train at Barbee’s gate, and after he passed the gate. This gate was, however, but twenty yards from the railroad, and while, by the testimony of several, of his witnesses, he could, by looking from any other *607point within 100 or 150 yards of the crossing, have seen the train, he never took tbe precaution to look until he reached a point within twenty yards of the railroad, where a thicket of brush, well known to him, obstructed his view of the road. Defendant’s servants were, beyond question, guilty of negligence, if they did not ring the bell or blow the whistle, as required by tbe statute when a train approaches a public crossing, but it is also negligence, gross negligence, for one traveling in a wagon to attempt to drive over a railroad without using ordinary precautions to ascertain if a train is approaching. He directly contributes to his own injury, who, paying no attention to his own safety, trusts to the obligations imposed upon the company to warn him of an approaching train. Here the plaintiff, without looking, except from a point at which lie knew he could not see an, approaching train, and failing to look at other points from which he could have seen it, drove, in a brisk trot, on to the track of the railroad, never having stopped to listen for an approaching train.
The judgment is reversed.
Sherwood and Hough, JJ., concur; Norton, J., agrees that the circuit court erred in striking out defendant’s special defense, hut thinks the court did not err in overruling the demurrer to the evidence. Ray, J., absent.