In Division One.
VALLIANT, J.
This is a suit for damages for the killing of. plaintiffs’ mother, which they allege was caused by the negligence of defendant. The plaintiffs are minors, suing by their next friend; their mother was a widow.
The allegations of the petition are, that the plaintiffs’ mother, on January 3, 1892, was struck and instantly killed by an engine drawing a passenger train within the limits of the city of St. Louis, while she was in the act of crossnig the track at a passenger station, with a view of reaching a platform provided by defendant for that purpose, from which she intended taking passage on a train of defendant. The acts of [251]*251negligence charged are, that the defendant ran its engine and cars without ringing the bell for the crossing as the statute requires, and ran the train at the speed of thirty miles an hour within the city, in violation of an ordinance of the city, which provided that it was unlawful to run it at a higher rate than six miles an hour. The prayer of the petition is for judgment for $5,000.
The answer admits that the ordinance was in force at the time of the accident, but avers that it was repealed in 1893, denies all other allegations, and sets up a plea of contributory negligence, which is denied by the reply.
The evidence for plaintiff tended to show the following:
Benton, where the accident occurred, is a station on defendant’s road in the western part of the city. Defendant has a station house there on the north side of its tracks, for the accommodation of its passengers; it has double tracks, the north track for the west-bound and the south for the east-bound trains. There was a platform on each side of the tracks, that on the south side being designed for passengers taking the east-bound trains. To go from the station house to the south platform one would cross both tracks. On January 3, 1892, Mrs. Hutchinson, the plaintiffs’ mother, came to this station with the purpose of taking the accommodation train, as it was called, going east, which train was due there at 6:38 p. m. The exact time of her arrival at the station is not established, but is appoximately given. It was stated that she had left the house of her daughter to go to the station about six o’clock, and the distance was about a half mile. A witness, Mr. Bang-hart, who was in the station with her, estimated it to be about 6:20 p. m., when they heard the whistle and she and he went out of the station together to cross over to the south platform. Another witness thought it was within three or five minutes of the time for the accommodation train. Ellendale is a [252]*252station a half mile to the west. A train at Ellendale coming east could be clearly seen from the platform in front of the station on the north side of the tracks at Benton, and from the north track and from the space between the tracks; but from the platform on the south side it could not be seen for more than three hundred or five hundred feet, owing to an embankment and pile of ties obstructing the view. Mrs. Hutchinson was in the habit of visiting her daughter and had frequently taken the train from that station, but usually went in on an earlier train. The night of the accident was cold and dark. Mrs. Hutchinson and Mr. Banghart were in the station house, where there was a light and fire, awaiting the accommodation train. She had a ticket to the Union Station. They heard a whistle in the direction of Ellendale, when Mrs. Hutchinson said, “That is our train, we will have to be in a hurry,” and she and Banghart immediately arose and went out on the platform in front of the station, where they stopped and looked west. The headlight of the train coming from Elendale was plainly visible. She said, “This is our train, we better be in a hurry to get across.” They both started to go across the tracks, Mrs. Hutchinson a little ahead, but Mr. Banghart passed her; when she reached the middle of the south track she dropped a lace scarf she was carrying in her hand, and paused and stooped to pick it up; she caught it, but while she was rising and before she had attained an erect position the engine of the approaching train, which proved to be the mail train running at the speed of thirty-five miles an hour, struck her and killed her instantly. Banghart barely reached the platform in safety. The train stopped about a hundred yards from the point of the accident in consequence of it. That station was not a stopping point for that train and but for the accident it would not have stopped there at all. The witnesses all testified that they heard no bell, but they all [253]*253heard the whistle at Ellendale, and saw the headlight. At the close of the plaintiff’s evidence the court gave an instruction to the effect that the plaintiffs were not entitled to recover, whereupon they took a nonsuit with leave, and after an ineffectual motion to -set it aside, have brought the cause here for review.
I. The fact, if it be a fact, that the engine bell was not rung as the statute requires, is immaterial under the other facts of the case. The object of ringing the bell is to give notice of the approach of the train; but in this instance that was unnecessary, because Mrs. Hutchinson heard and recognized the whistle and saw the headlight; she knew the train was coming, and required no further warning. The failure to ring the hell, though an act of negligence, could not have contributed to the catastrophe.
II. But the city ordinance forbade the running of the train at a higher rate than six miles an hour, and this train was running at the rate of thirty-five miles an hour.
That act was negligence per se, and if it was the cause of the accident, the defendant was liable unless the deceased contributed to the result by her own negligence. This proposition has been so often and so elaborately discussed and demonstrated and as a rule of law so often declared by this court that, it is now only necessary to restate it and cite some of the decisions in which it is discussed. [Karle v. Railroad, 55 Mo. 476; Bowman v. Railroad, 85 Mo. 533 ; Merz v. Railroad, 88 Mo. 672; Keim v. Railroad, 90 Mo. 314; Rafferty v. Railroad, 91 Mo. 33; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 336; Kellny v. Railroad, 101 Mo. 68; Murray v. Railroad, 101 Mo. 236; Hanlon v. Railroad, 104 Mo. 381; Bluedorn v. Railroad, 108 Mo. 439; Gratiot v. Railroad, 116 Mo. 450; Prewitt v. Railroad, 134 Mo. 615.]
[254]*254When the plaintiffs’ mother heard the whistle in the direction of Ellendale and went out on the platform and there saw the headlight of the approaching train, if she knew or could discern the rate of speed at which it was approaching and had attempted to cross the tracks as she did, she would have been guilty of such negligence as would prevent a recovery. Whether, in the darkness of the night and under the circumstances surrounding her, she is to be regarded as knowing or capable of discerning the speed at which the train was coming, is a question of fact upon which minds might reasonably differ and the court could not settle it as a matter of law.
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In Division One.
VALLIANT, J.
This is a suit for damages for the killing of. plaintiffs’ mother, which they allege was caused by the negligence of defendant. The plaintiffs are minors, suing by their next friend; their mother was a widow.
The allegations of the petition are, that the plaintiffs’ mother, on January 3, 1892, was struck and instantly killed by an engine drawing a passenger train within the limits of the city of St. Louis, while she was in the act of crossnig the track at a passenger station, with a view of reaching a platform provided by defendant for that purpose, from which she intended taking passage on a train of defendant. The acts of [251]*251negligence charged are, that the defendant ran its engine and cars without ringing the bell for the crossing as the statute requires, and ran the train at the speed of thirty miles an hour within the city, in violation of an ordinance of the city, which provided that it was unlawful to run it at a higher rate than six miles an hour. The prayer of the petition is for judgment for $5,000.
The answer admits that the ordinance was in force at the time of the accident, but avers that it was repealed in 1893, denies all other allegations, and sets up a plea of contributory negligence, which is denied by the reply.
The evidence for plaintiff tended to show the following:
Benton, where the accident occurred, is a station on defendant’s road in the western part of the city. Defendant has a station house there on the north side of its tracks, for the accommodation of its passengers; it has double tracks, the north track for the west-bound and the south for the east-bound trains. There was a platform on each side of the tracks, that on the south side being designed for passengers taking the east-bound trains. To go from the station house to the south platform one would cross both tracks. On January 3, 1892, Mrs. Hutchinson, the plaintiffs’ mother, came to this station with the purpose of taking the accommodation train, as it was called, going east, which train was due there at 6:38 p. m. The exact time of her arrival at the station is not established, but is appoximately given. It was stated that she had left the house of her daughter to go to the station about six o’clock, and the distance was about a half mile. A witness, Mr. Bang-hart, who was in the station with her, estimated it to be about 6:20 p. m., when they heard the whistle and she and he went out of the station together to cross over to the south platform. Another witness thought it was within three or five minutes of the time for the accommodation train. Ellendale is a [252]*252station a half mile to the west. A train at Ellendale coming east could be clearly seen from the platform in front of the station on the north side of the tracks at Benton, and from the north track and from the space between the tracks; but from the platform on the south side it could not be seen for more than three hundred or five hundred feet, owing to an embankment and pile of ties obstructing the view. Mrs. Hutchinson was in the habit of visiting her daughter and had frequently taken the train from that station, but usually went in on an earlier train. The night of the accident was cold and dark. Mrs. Hutchinson and Mr. Banghart were in the station house, where there was a light and fire, awaiting the accommodation train. She had a ticket to the Union Station. They heard a whistle in the direction of Ellendale, when Mrs. Hutchinson said, “That is our train, we will have to be in a hurry,” and she and Banghart immediately arose and went out on the platform in front of the station, where they stopped and looked west. The headlight of the train coming from Elendale was plainly visible. She said, “This is our train, we better be in a hurry to get across.” They both started to go across the tracks, Mrs. Hutchinson a little ahead, but Mr. Banghart passed her; when she reached the middle of the south track she dropped a lace scarf she was carrying in her hand, and paused and stooped to pick it up; she caught it, but while she was rising and before she had attained an erect position the engine of the approaching train, which proved to be the mail train running at the speed of thirty-five miles an hour, struck her and killed her instantly. Banghart barely reached the platform in safety. The train stopped about a hundred yards from the point of the accident in consequence of it. That station was not a stopping point for that train and but for the accident it would not have stopped there at all. The witnesses all testified that they heard no bell, but they all [253]*253heard the whistle at Ellendale, and saw the headlight. At the close of the plaintiff’s evidence the court gave an instruction to the effect that the plaintiffs were not entitled to recover, whereupon they took a nonsuit with leave, and after an ineffectual motion to -set it aside, have brought the cause here for review.
I. The fact, if it be a fact, that the engine bell was not rung as the statute requires, is immaterial under the other facts of the case. The object of ringing the bell is to give notice of the approach of the train; but in this instance that was unnecessary, because Mrs. Hutchinson heard and recognized the whistle and saw the headlight; she knew the train was coming, and required no further warning. The failure to ring the hell, though an act of negligence, could not have contributed to the catastrophe.
II. But the city ordinance forbade the running of the train at a higher rate than six miles an hour, and this train was running at the rate of thirty-five miles an hour.
That act was negligence per se, and if it was the cause of the accident, the defendant was liable unless the deceased contributed to the result by her own negligence. This proposition has been so often and so elaborately discussed and demonstrated and as a rule of law so often declared by this court that, it is now only necessary to restate it and cite some of the decisions in which it is discussed. [Karle v. Railroad, 55 Mo. 476; Bowman v. Railroad, 85 Mo. 533 ; Merz v. Railroad, 88 Mo. 672; Keim v. Railroad, 90 Mo. 314; Rafferty v. Railroad, 91 Mo. 33; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 336; Kellny v. Railroad, 101 Mo. 68; Murray v. Railroad, 101 Mo. 236; Hanlon v. Railroad, 104 Mo. 381; Bluedorn v. Railroad, 108 Mo. 439; Gratiot v. Railroad, 116 Mo. 450; Prewitt v. Railroad, 134 Mo. 615.]
[254]*254When the plaintiffs’ mother heard the whistle in the direction of Ellendale and went out on the platform and there saw the headlight of the approaching train, if she knew or could discern the rate of speed at which it was approaching and had attempted to cross the tracks as she did, she would have been guilty of such negligence as would prevent a recovery. Whether, in the darkness of the night and under the circumstances surrounding her, she is to be regarded as knowing or capable of discerning the speed at which the train was coming, is a question of fact upon which minds might reasonably differ and the court could not settle it as a matter of law. And as it is a fact of common experience that railway trains, as they lawfully may, not infrequently do run past some passenger stations without stopping and at a rate of thirty-five or forty miles an hour, if the plaintiffs’ mother, without knowing and without being able to discern the speed of the train, had assumed that it was running at a less rate and acting on that assumption, had attempted to cross as she did, the court would have been justified in adjudging her negligent, unless there was some other fact in the case to justify her assumption. But there was that other fact in this case. The city ordinance prohibited the train running at a higher rate than six miles an hour, and in the absence of proof that she knew or had reason to apprehend to the contrary, the law will presume that she trusted as she had a right to trust, that the defendant was running its train at not more than six miles an hour in obedience to the ordinance, and that she regu-, lated her movements accordingly. This court has frequently so declared the law. [Eswin v. Railroad, 96 Mo. 290, loc. cit. 295; Kellny v. Railroad, 101 Mo. 67, loc. cit. 77; Jennings v. Railroad, 112 Mo. 268, loc. cit. 276; Gratiot v. Railroad, 116 Mo. 450, loc. cit. 464; Sullivan v. Railroad, 117 Mo. 214, loc. cit. 222.]
[255]*255Even with the train running as it was at thirty-five or forty miles an hour, the movements of the plaintiffs’ mother were such that she had reached the middle of the south track and had almost reached the platform, as Banghart who started across with her in fact had done, when the engine struck her. It is, therefore, entirely reasonable to conclude that if the train had approached at the rate of only six miles per hour she would have passed in safety, even though.she paused to pick up the scarf which had dropped. If, then, she was acting, as the law, in the absence of any proof to the contrary, will presume she rightfully was, on the assumption that the train was approaching at the rate of not more than six miles an hour, the court had no right to conclude, as a matter of law, that her conduct was not such as might be expected of a reasonably prudent person. The question of whether, under those conditions, she was guilty of negligence was one of fact for the jury. The instruction in the nature of' a demurrer to the evidence ought not to have been given.
The judgment is reversed and the cause remanded to the trial court to be re-tried in accordance with the law as herein declared.
All concur, except Marshall, J., who dissents.
In Banc.
PEE CIJEIAM:
The foregoing opinion filed by Judge Yalliant in this cause, while it was pending in Division No. I, of the court, is approved and adopted as the opinion of the Court in Banc, by the majority of our number.
Burgess, G. J. , Brace and Gantt, JJ., concurring in said opinion. Eobinson, Sherwood and Marshall, JJ., dissenting.