Jackson v. Southwest Missouri Railroad

156 S.W. 1005, 171 Mo. App. 430, 1913 Mo. App. LEXIS 637

• Court: Missouri Court of Appeals
• Decided: May 5, 1913
• Status: Published

Opinions

STURGrIS, J.

The injuries for which plaintiff brought suit and recovered judgment were caused by his coming in collision with one of defendant’s interurban cars running on its road extending from Carthage, Missouri, through Webb City and Joplin to G-alena, Kansas. The cars are propelled by electricity and the road is what is termed a trolley line, running single cars thereon. The collision occurred at a public road crossing south of Webb City. This public road runs east and west and forms the southern boundary of that city. The defendant’s car line crosses this at right angles. The plaintiff was traveling eastward along this road on a motorcycle .and defendant’s car was going south. The result was that they collided at the crossing and plaintiff was severely injured, his skull fractured and he received such permanent injuries therefrom as will justify a judgment of $7500, provided defendant is to be held responsible for his injury.

As is usual in this class of cases the plaintiff claims that the accident was wholly due to the fault and negligence of defendant. On the other hand the defendant says that plaintiff was not without fault and negligence on his part and that his injuries were caused wholly or partially by his own negligence. The specific acts of negligence set out by plaintiff in his petition are: 1st. Negligently failing to ring the bell or gong thereon at a distance of eighty rods from said crossing and to keep same ringing until said car had crossed said highway; and also failed to sound the whistle on said .car at a distance of eighty rods from said crossing and to sound said whistle at intervals until said car had crossed said highway; 2nd. Running at a greater rate of speed than fifteen miles per hour in violation of the ordinances of Webb City; 3rd. Negligently approaching the crossing at a rapid and dangerous rate of speed without giving any warning sufficient to notify plaintiff that said car was coming, and negligently failing to ring the bell and sound the whistle on said car at a sufficient distance from said crossing to give plaintiff and persons approaching said crossing along said highway notice of the approach of said car, and negligently failing to give 'any warning sufficient to notify persons approaching said crossing of the approach of said car.

The answer of defendant, after admitting its incorporation under the general railroad laws of Missouri and its' operation of an interurban electric railway system for carrying passengers, is a general denial and this affirmative defense: “Defendant, further answering, says that the accident and injuries, if any, received by plaintiff, were caused solely and wholly by the fault and negligence of the plaintiff in that the plaintiff, riding a motorcycle, approached the track of defendant’s railroad from the west at an exceedingly rapid rate of speed, and without looking or listening for a car thereon, when by looking he could have seen, and by listening he could have heard, attempted to cross said railroad, and did cross the west track of said road with his motorcycle, when for some cause or other, plaintiff slipped- off the back end of his motorcycle and was caught by the east step of the car running on the west track of said road; all of which was without fault or negligence on the part of this defendant.”

The petition was originally in two counts and at the close of his evidence in chief, plaintiff, by leave of court, amended his first count by inserting the third ground of negligence as above mentioned. Thereupon defendant filed an affidavit of surprise and asked for a continuance. This was refused and the court’s action in this respect is assigned as error. As substantially this same ground of negligence was already in the second count of the petition, and so constituted a part of plaintiff’s cause of action which defendant was required to meet, its insertion in the first count could not have misled defendant to his injury. At least it was not such an abuse of the court’s discretion in such matter' as to call for a reversal of the case. This assignment.is therefore ruled against the defendant.'

It will be noted that there are three grounds of negligence alleged by plaintiff with reference to the running of defendant’s car: (1) Exceeding the speed limit of fifteen miles an hour in violation of the ordinances of Webb City; (2) failing to ring the bell or sound the whistle not less than eighty rods from the public crossing as required by statute, section 3140, Revised'Statutes 1909, relating to railroads generally; (3) common law negligence in approaching and passing over a much traveled road crossing at a high rate of speed without giving any sufficient and timely alarm or warning of the approaching car. Much is said in the briefs of counsel as to whether or not section 3140, Revised Statutes 1909, requiring a bell to be placed on all locomotive engines and to be rung at least eighty rods from public crossings and kept ringing until it shall cross the road, or that a steam whistle shall be attached to the engine and shall be sounded and kept sounding at intervals for a like distance, should be made to apply to interurban cars propelled by electricity. It is argued by defendant that the reading of said section conclusively refutes the idea that it applies to anything except railroads operated by steam engines. This is an old statute and certainly was not intended when enacted to apply to other than steam railroads. On the other hand it is argued by plaintiff .and admitted by defendant- that defendant is incorporated under the general railroad act applying to steam railroads and therefore assumed all the obligations and liabilities of steam railroads; that the spirit and intent of the statute is that of public safety and should aply to all rapidly moving and dangerous cars regardless of the motive power. This is a somewhat new question in this State and the excellent briefs of counsel on both sides present most, if not all, the authorities bearing directly or indirectly on this question. The plaintiff cites as supporting his position: Commonwealth v. Railroad, 133 S. W. (Ky.), 230; Baltimore Railroad v. Wheeler, 63 Ill. App. 193; Birmingham Railroad v. Jacobs, 12 L. R. A. (Ala.) 830; Hannah v. Railway, 81 Mo. App. 78. The defendant cites as supporting its contention: Fallon v. Street Railway, 50 N. E. (Mass.) 536; Transit Co. v. Andis, 72 N. E. 145; Stranahan v. Railway, 84 N. Y. 308; Thying v. Railroad, 156 Mass. 13, 30 N. E. 169; Henson v. Railroad, 110 Mo. App. 595, 85 S. W. 597; Jaris v. Hitch, 67 N. E. (Ind.) 1057.

Whatever may be the proper solution of this question as to whether the particular signals and at the particular distances required by statutes primarily intended for steam railroads shall be applied to electric cars running at a high rate of speed through the country, it is of more importance to the instant case to note that all the authorities agree that the persons operating such electric road and cars are required, regardless of statute, to give effective and timely warnings commensurate with the speed and danger likely to result from running' the same. [Baker v. Railroad, 147 Mo. 140, 160, 48 S. W. 838; Cincinnati Electric Railroad v. Lohe, 67 L. R. A. (Ohio) 637; Aurora v. Traction Co., 81 N. E. (Ill.) 544; Spalding v. Railroad, 80 N. E. 327; Pacific Railroad v. Moffett, 44 Pac. (Kan.) 67; Elliott on Railroads (2 Ed.), secs. 1155, 1156; Booth on Street Railroads (2 Ed.), sec. 431; Hannah v. Railroad, 81 Mo. App. 78.]

We need not decide this point or discuss the matter further for this reason: The principal instruction given for plaintiff and the only one covering the entire case and directing a verdict for plaintiff is on the conjunctive or cumulative plan as follows: “If the jury find and believe from the evidence in this case that the defendant, on the 30th day of October, 1911, was running and operating an electric railway between Carthage, Missouri, and Galena, Kansas, and through the corporate limits of the city of Webb City, and that the tracks of defendant were laid across a public highway in Jasper county, Missouri near Mount Hope Cemetery, and if the jury further find that defendant’s right of way and tracks, from a point more than eighty rods north of said crossing, extended south through the outskirts and in the corporate limits of Webb City, and up to the boundary of said public highway and crossing, and if the jury further find from the evidence that on said day plaintiff was traveling on said highway at the point of crossing of defendant’s tracks, and that plaintiff was in the exercise of ordinary care on his part, and that the servants and employees of defendant in charge of the car mentioned in evidence, in operating and running said car negligently failed, in approaching said crossing to ring the bell thereon at a distance of eighty rods therefrom and to keep same ringing until said car had crossed said highway, and also failed, in approaching said crossing, to sound the whistle on said car at a distance of eighty rods from said crossing and to sound said whistle at intervals until said car had crossed said fiighways — if you so find — and if the jury find that defendant’s agents and servants in charge of said car negligently approached said crossing at a rapid and dangerous rate of ¡¡speed without giving any warning sufficient to notify plaintiff and travelers approaching and about to pass over said crossing that said car was coining, and in such a manner as to endanger plaintiff and travelers on said highway, and negligently failed to ring the bell and sound the whistle on said car at a sufficient distance from said crossing to give plaintiff and travelers approaching said crossing along said highway notice of the approach of said car, and if the jury furT ther find that the agents and servants of defendant in charge of said car ran the same on defendant’s tracks from a point north of said crossing through the outskirts of Webb City in approaching and up to said crossing — if yon so find — at a greater rate of speed than fifteen (15) miles per hour, and that by reason and in consequence of such failures and conduct on the part of defendant, its agents and employees in charge of said car, if any, said car was caused to run against and strike plaintiff, thereby injuring him, you will find the issues in favor of the plaintiff.”

It will be noted that this instruction required the jury before finding for plaintiff to find defendant guilty of negligence on all three grounds mentioned in the petition. It is the well settled law that where an instruction predicates plaintiff’s recovery on several grounds of negligence, all of which must he found for plaintiff before he can recover, then, if any one of such grounds constitutes actionable negligence and is supported by the evidence, that is sufficient. The defendant cannot complain that the jury were required to and did find more than the law requires in order to make defendant liable. [Kendrick v. Ryus, 225 Mo. 150, 168-9, 123 S. W. 937; Baker v. Railroad, 122 Mo. 533, 548, 26 S. W. 20; Gibler v. Railroad, 129 Mo. App. 93, 101, 107 S. W. 1021.] In the Gibler case just cited, the court, page 101, said: “Complaint is made of the first instruction given for plaintiff, on the ground of lack of evidence to support it. Said instruction submitted to the jury all the charges of negligence made in the petition, and, as said, there was no evidence of two of them. But, as the instruction was drawn in the conjunctive, and required the jury to find defendant guilty of all the acts of negligence charged as the condition of a verdict for plaintiff, the instruction was favorable to defendant rather than adverse; inasmuch as it imposed on plaintiff the duty to prove more than the law required in order to make a case.”

If the defendant was negligent, and the jury found it was, in running its car at a high and dangerous rate of speed in approaching the road crossing in question and did not give adequate and timely warning signals of such approach so as to notify travelers about to pass over the same, that is negligence enough, even if defendant cannot be held to a strict compliance with .the statute as to giving such warning signals eighty rods fromjhe crossing.

"What has just been said also applies to the rate of speed being in excess of that prescribed by city ordinances. The defendant contends that the place of the accident and its road approaching thereto were not shown to be within the limits of Webb City and so defendant was not governed by the ordinances of said city limiting its speed to fifteen miles per hour in the outskirts of that city; also that as it was then running its car on its private right of way and not on or across any street of that city, such ordinances did not apply. While neither of these contentions can be sustained and without in any way according to the correctness of same, it is sufficient to say that the jury found that defendant was guilty of negligence in the manner above pointed out without any reference to any speed ordinance, and that such other ground of negligence is sufficient for this case.

This brings us to the real questions in the case: Is the evidence sufficient to warrant the jury in finding-defendant negligent in running its car at a high rate of speed without giving adequate and timely warning-signals in approaching- the road crossing- in question; if so, was the plaintiff also conclusively shown to have been guilty of negligence on his part contributing to the accident in his manner of approaching the crossing and in failing to use due care for his own safety in looking and listening for an approaching car; were these issues presented to the jury by proper instruction's ?

Taking the evidnce most strongly in favor of plaintiff, as we must do on this appeal, we have no difficulty in answering the first of these questions in the affirmative. The motorman in charge of the car admits that he was traveling at twenty-five miles per hour and perhaps more. Other witnesses place the speed at a higher rate. What might be termed the physical facts are that the car was going down grade on a straight track and the motorman says he first saw plaintiff approaching the crossing when his car was some two hundred or two hundred and fifty feet therefrom and that he at once applied the brakes and used every effort to stop the car; and yet the car struck plaintiff with sufficient force to hurl him some forty-five feet over a cattle-guard and he could not stop his car for near two-hundred feet beyond the crossing. This strongly tends to show the high rate of speed. The danger signal, which was such as to attract the attention of a number of witnesses, was sounded at the point where the motorman says he first saw the plaintiff, that is, some two hundred or two hundred and fifty feet from the crossing. Several of these witnesses say that the regular crossing signal, different from the continuous danger signal, was sounded almost immediately before the danger signal and no other signals were given. We think the jury were warranted in finding that the car in question was being run thirty miles or more per hour and that no warning signal was given until the car was within some three hundred to four hundred feet of the crossing and that this constitutes actionable negligence.

"Whether plaintiff was conclusively shown to have been guilty of contributory negligence is the difficult point in the case. He also was traveling down grade to within some fifty or sixty feet of the crossing. lie says he shut off the power of his motorcycle and was-coasting down the hill and approaching the crossing at a speed of four to four and a half miles per hour. The motorman says that when he first saw plaintiff he was about fifty feet from the crossing and he thinks he was going fifteen miles per hour, and that when the alarm was sounded plaintiff tried -to stop his motorcycle but failed to do so before reaching the track. Some idea of the respective rates of speed may be had by noting that according to the motorman’s statement plaintiff did not go to exceed fifty feet while defendant’s car went two hundred to two hundred and fifty feet; that is four or five times as fast. The motorman explained the reason why plaintiff did not pass the crossing ahead of the car, which he certainly would have done if going fifteen miles per hour, by saying that plaintiff was trying, to stop and slowed up; but the motorman forgets that he also was trying to stop and had likewise slowed up. The jury therefore were warranted in finding that plaintiff’s statement as to his rate of speed in approaching the crossing was substantially as stated by him and was not negligence per se.

It is claimed that plaintiff is conclusively shown to have been guilty of negligence in that, while approaching the place of danger, he did not take proper precautions for his own safety in looking and listening for an approaching car when to do so would have avoided the injury. This is the crucial point in the case. There is a wealth of learning on this point and the briefs leave little to be said as to the law; in fact, the difficulty is not in finding and declaring the principles of law applicable to this ground of negligence and counsel for the respective sides do not differ much, as to the law. The difficulty is in applying the law to the paxticuax facts of this case. Each case must depend on its own paxticulax facts. In the present case the car was traveling south and plaintiff east. On the west side of defendant’s right of way there was a cemetery. There was an office building about one hundred and fifty or one hundred and sixty feet north and fifty feet west of the railroad track measured by the west track on which the car was running. From the south side of this building a stone fence about four feet three inches high extended east some thirty feet, or to within twenty feet of the west track, and then runs south forty-four feet parallel with the track and then curves westward and southward so as to make a corner entrance to the cemetery. There were vines on this wall and columns three or four feet square and seven or eight feet high at intervals. North of the office building was a wire fence running-north and thence east to a cattle-guard two hundred and fifty feet north of the crossing. Near or along this fence and still further north were trees and bushes, some witnesses say trimmed high and others say not much higher than the fence.

Plaintiff says that on account of these obstructions he could not see up defendant’s track as far as the cattle-guard, two-hundred and fifty feet from the crossing, until within less than fifty feet of same; at which point he could see past the northeast corner of the curved stone wall entrance to the cemetery. At a point twenty-five feet from the crossing he would have a nearly clear view up the track to the top of the hill six hundred feet distant, though the track passed through a cut some six or seven feet deep at the deepest point between the cattle-guard and the hill top. In this matter plaintiff is corroborated by the motorman, who says he was looking to see if anyone was at or near the crossing as he approached it and that plaintiff first came into view from behind the stone wall when the car was at a point about two hundred feet north of the crossing and that plaintiff was then about fifty feet west of the crossing, and that that point was as far west as he could see and that he could not have seen that far west one hundred feet further north. According to plaintiff’s .evidence he must have been much nearer the track than fifty feet when the motorman was at the point he says he first saw him and gave the alarm. The jury therefore were justified in finding that plaintiff could not have seen the approaching car, unless it was within two hundred feet of the crossing, till plaintiff was within fifty feet of the same; and that the line of vision extended further north as he came nearer the crossing till at twenty-five feet he had a practically clear view to the top of the hill. The jury were also justified in finding from the respective rates of speed of plaintiff and the car that at the time plaintiff reached the point fifty feet west of the crossing where he could see up the track a distance of some two hundred and fifty feet, that the car was then much further away and was not within his vision. We also think that the jury were justified in finding that if defendant had been giving proper signals at that time that plaintiff would have .heard the same and his injury been avoided.

Plaintiff further says that, being somewhat familiar with the crossing and surroundings, he had the crossing in mind and was looking north so as to see any car approaching as soon as he passed the obstructions; that when he was at the point about fifty feet west of the crossing where he could then see about two hundred to two hundred and forty feet up the track, that he then looked and could see no car coming or hear any sounds of an approaching car; that he then looked south and saw.a clear track in that direction and was then close to the crossing; that he remembered nothing further until he was in the hospital a day or two later.

That a railroad is in and of itself a warning of danger and that anyone attempting to cross the same must use his senses — look and listen — to ascertain whether a train is approaching in dangerous proximity, and that the failure to do that is negligence per se contributing to any injury received, and that in such case no amount of negligence on the part of the defendant will warrant a recovery, is elementary law. This duty of the traveler to use care to ascertain whether the train is coming or not is wholly independent of the failure of the railroad company to observe any or all duties imposed on it, such as giving signals or running at a reasonable rate of speed. [Sanguinette v. Railroad, 196 Mo. 466, 95 S. W. 386; Hayden v. Railroad, 124 Mo. 566, 28 S. W. 74; Huggart v. Railroad, 134 Mo. 673, 36 S. W. 220; Schmidt v. Railroad, 191 Mo. 215, 90 S. W. 136; Laun v. Railroad, 216 Mo. 563, 116 S. W. 553; McCreery v. Railways Company, 221 Mo. 18, 120 S. W. 24; Farris v. Railroad, 167 Mo. App. 392, 151 S. W. 979; Burge v. Railroad, 224 Mo. 76, 148 S. W. 925; Greene v. Railroad, 192 Mo. 139, 90 S. W. 805; Stotler v. Railroad, 204 Mo. 619, 103 S. W. 1.]

It is said in Porter v. Railroad, 199 Mo. 82, 96, 97 S. W. 880, that: “It is well settled in this State that when a traveler approaches a railroad crossing he must look both ways and listen for coming trains, and the negligence of the company in failing to give proper signals will not excuse the traveler’s duty to look and listen. [Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 476; Baker v. Railroad, 122 Mo. 533; Stepp v. Railroad, 85 Mo. 229; Donohue v. Railroad, 91 Mo. 357; Butts v. Railroad, 98 Mo. 272; Schmidt v. Railroad, 191 Mo. 215.] ”

In Mockowick v. Railroad, 196 Mo. 550, 570, 94 S. W. 256, the court said: “(b) It needs no citation of authority to sustain the proposition that there was an imperative duty resting upon plaintiff to act witli reason and common sense and to look out for kis own safety when about to cross defendant’s track. He was charged with the duty of looking and listening, provided that by looking he could see and by listening he could hear. The law does not excuse those persons of mature years who have eyes and see not and ears and hear not. [Greene v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215.] . . . for the negligence of the defendants on the above hypothesis and the negligence of the injured party are concurrent, i. e., coincident in time and place. [See authorities, supra; also, Kelsay v. Railroad, 129 Mo. 362; Campbell v. Railroad, 175 Mo. l. c. 183-4; Boyd v. Railroad, 105 Mo. 371; Moore v. Railroad, 175 Mo. l. c. 544, and cases cited; Walker v. Railroad, 193 Mo. 453.]”

In Kelsay v. Railroad, 129 Mo. 362, 30 S. W. 339 the-court states the law, page 372, as follows: “The duty of a traveler upon a highway in approaching a railroad crossing, to use all reasonable precautions to ascertain the approach of trains.and to avoid injury by them is well settled law, not only in this court, but perhaps in all the courts of this country. This rule imperatively requires him to look carefully, in both directions, at a convenient distance from the crossing, before venturing on it, if, by looking, a train could be seen. The duty will not be performed by attempting to look only from a point at which the view is .obstructed. The duty is a continuing one until the crossing is reached. If there is a point between the obstruction and the track which gives opportunity to see, it is the duty of the traveler to look. He cannot close his eyes and thereby relieve himself of the consequence of his own negligence. [Hayden v. Railroad, 124 Mo. 566.]”

It is also the law that this duty to use reasonable care to ascertain the approach of a train in dangerous proximity is not in all cases at least discharged by a single look made at some distance from the crossing. The duty is a continuous one but depending on circumstances. If there are obstructions the traveler must look after the obstructions are passed and the circumstances might require that he stop to investigate • before venturing into danger. If the sight is obstructed then greater care should be given to sound. [Walker v. Railroad, 193 Mo. 453, 92 S. W. 83; Kelsay v. Railroad, 129 Mo. 362, 371, 30 S. W. 339; Cole v. Railroad, 121 Mo. App. 605, 610, 97 S. W. 555.]

Whether plaintiff is guilty of negligence in failing to look and listen at a point nearer the danger zone is somewhat dependent upon his method of travel and other circumstances of the particular case. What would be negligence in this respect by one walking might not be negligence in one riding in a wagon or on a motorcycle. This is true for the reason that a person walking can control his movements and stop much quicker than while riding and having a team or machine to control. As said in Farris v. Railroad, 151 S. W. 979, “This rule is particularly applicable to persons traveling on foot, ‘since, the danger zone in such a case is so narrow, and it may be avoided with so little effort.’ ” [See, also, 33 Cyc. 1012.] As the danger zone widens so the looking and listening zone narrows. Nothing was shown in this case as to the distance in which a motorcycle traveling at four or five miles per hour could be stopped, except that plaintiff said he could not stop it within ten and possible not within twenty, feet. We are not prepared to say whether this is true or not.

While it is true that a person approaching a railroad crossing is not permitted to rely on the presumption that the car will be run at a lawful rate of speed and that the timely signals will be given as the ear approaches the crossing to the extent that he may neglect his own duty in using care to look and listen for such, cars; yet, the courts do not exact the highest degree of care and watchfulness in this respect. The traveler is only required to use ordinary care in that respect. The point at which the last look for an approaching car was taken may be so far from the actual danger point or the intervening time so great that the failure to look and listen at a nearer point may under the circumstances be declared negligence as a matter of law. Such was the case in Semple v. Railroad, 152 Mo. App. 18, 24, 133 S. W. 114; Cole v. Railway, 121 Mo. App. 605, 97 S. W. 555. On the other hand the point at which plaintiff looked and listened and saw and heard no coming car may be so near the crossing and the circumstances such that plaintiff may rely on the presumption that no car will be run at so high a rate of speed and without any signals being given as to make it dangerous for him to cross the track. He must rely on this at some point. Thus in Woodward v. Railroad, 152 Mo. App. 468, 133 S. W. 677, plaintiff was traveling in a buggy and could not see down the track until she passed a warehouse and was then thirty-five feet from the crossing and could see four hundred feet down the track. She then looked and listened and neither saw nor heard a train. She did not look again, though by doing so nearer the track she could have seen a train at a much further distance. The court said: “The next and most serious question arising from the demurrer to the evidence is that of plaintiff’s conduct in going into a position of peril without looking but once in the direction of the train. Some six or seven seconds passed during her progress from the place where she stepped to the point where she passed into the danger zone. ... A traveler crossing a railroad track must be attentive to his safety from the time he approaches the first danger line until he passes over the last. . . . Having eyes and ears he must use them as a reasonable, careful and prudent man would use them, ancl not trust his safety to others when he is in a position to take care of himself. But of necessity a traveler is compelled to place some reliance on the care of others. Plaintiff knew that the hell should he rung, and also that there was an ordinance limiting the speed of trains to ten miles per hour. She was justified in assuming, from the fact that she could see four hundred feet, and no train was in sight or hearing, that the way was clear and she could cross in safety. It is true she was not absolved from the exercise of constant attentiveness, hut she had other places to look and other things to engage her attention that were legitimate and natural subjects of attention.”

In Moore v. Railroad Co., 157 Mo. App. 53, 65, 137 S. W. 5, the court said: “There can he no doubt of the proposition pertinent here that plaintiff was not required to anticipate defendant’s negligence; but, on the contrary, he enjoyed the right to rely upon its per-formence of duty. So relying, he was authorized to assume that if a locomotive were in the immediate vicinity, it would both comply with the ordinance by moving forward at a rate not to exceed eight miles per hour and sound the usual signals of approach. . . . Besides, as before stated, he was authorized to assume defendant’s locomotive would be sounding a signal if one were near. Having heard no sound, his act of driving forward with the horse under such control as to afford him an opportunity to save it from the collision entirely does not disclose such reckless conduct as would have justified the court in directing a verdict for defendant on the score of contributory negligence. Indeed, where the view of the track is obscured to within a few feet of the rail, as here, one on a highway may presuppose that the operatives of the locomotive are duly careful, and the precepts of ordinary care do not enjoin that he should go forward upon the ground to search out a danger which was ascertainable a few feet beyond by looking and listening, except for the fact that defendant omitted to disclose it through its failure to perform the duties as to signals which the law enjoins.”

This proposition is well stated in Campbell v. St. Louis Railway Co., 175 Mo. 161, 172 and 173, 75 S. W. 86, where the court said: “From the facts and circumstances shown by the plaintiff’s evidence the conclusion might reasonably be drawn that the deceased was guilty of such negligence, but unless that is the only conclusion that can reasonably be drawn from those facts and circumstances, the demurrer to the evidence Avas properly overruled. If the evidence was such that there could reasonably he no two opinions about it, then its effect should have been declared by the court as a matter of law, otherwise, it was a question of fact for the jury. [Gratoit v. Railroad, 116 Mo. 450; Weller v. Railroad, 120 Mo. 635.] ... It was incumbent on the boy to have used his eyes and ears before driving on the tract, and if all that these Avitnesses said was true he would have seen or heard the car if he had stopped and looked and listened. Whilst it is the duty of one under such circumstances to look and listen, and sometimes it is the duty to stop in order the better to see and hear, yet it is not always incumbent on him to stop for that purpose; whether he should do so or not in a given case depends on the circumstances, and if it is doubtful the jury are to judge of it.” To the same effect are Maness v. Railroad, 149 Mo. App. 259, 264, 130 S. W. 87; Weller v. Railway Co., 120 Mo. 635, 651, 23 S. W. 1061, 25 S. W. 532; Gratiot v. Railway Co., 116 Mo. 450, 21 S. W. 1094.

We conclude, therefore, that reasonable men might differ as to plaintiff’s negligence under the circumstances of this case; and that there is some evidence to sustain the finding that plaintiff exercised ordinary care for his own safety in approaching and attempting to pass over the crossing; and that the court properly refused to direct the verdict for defendant on that ground.

Complaint is also made as to each and all the instructions given and refused. The length of this opinion forbids that the instructions be set out at length and defendant’s criticism of each discussed. We have examined them all in the light of defendant’s criticisms and find that they properly declare the law. The jury were told in the instructions given that a railroad track is a warning of danger and that every person about to cross the track is bound to look and listen for coming cars before attempting to cross the same; and that a failure to look and listen is negligence and prevents a recovery regardless of defendant’s negligence in operating the car; also, that it is the duty of the traveler not only to look and listen before entering upon the track, but if going at a rapid rate of speed to check his speed and to stop if necessary in order to have an opportunity to look and listen, and that a failure to do this would be negligence.

Of those refused, instruction D was properly refused because the court should not declare as 'a matter of law that it was negligence for plaintiff to fail to stop or check his motorcycle to enable him to see or hear the approaching car, regardless of his speed. [Esler v. Railroad, 109 Mo. App. 580, 83 S. W. 73.] Instruction C as given, required this provided plaintiff was going at a rapid rate of speed or if necessary in order to have an opportunity to look and listen. This was sufficient. Instruction II and I were properly refused because based in p'art on plaintiff having defective hearing and there was no evidence to support that fact. Instructions J, K and L are based on the humanitarian doctrine as contained in the second count of the petition, but as this count was dismissed that feature of the case disappeared and the jury had nothing to do with it. M was properly refused because uo such issue was in tlie case, and it is not perceived bow tbe facts there stated would-necessarily warrant a verdict for defendant. If it is meant thereby to tell the jury that if plaintiff had passed over the defendant’s track ahead of the cars to a place of safety and then voluntarily came back into danger he could not recover, it is so unhappily worded as to confuse rather than enlighten the jury on that point. Instructions N and 0 were properly refused because sufficiently covered by numbers B and 0 as given. Number T relates to the ringing of the bell and sounding of the whistle eighty rods from the crossing and is disposed of by what we have said in regard to that matter.

It results from these views that the case should be and is affirmed.

Robertson, P. J., concurs, Farrington, J., dissents on the question of contributory negligance, and files separate opinion holding that this opinion is in conflict with certain decisions of our Supreme Court therein designated.

The case is therefore certified to the Supreme Court.