DOUGLAS, P. J.
[585] Plaintiff has sued because of the wrongful death of her husband who was killed when a Missouri Pacific train operated by defendant trustee struck the truck in which he was riding at Elkhorn crossing, about one-half mile west of California, Missouri. She recovered judgment for $4,000. Defendant appealed to the Kansas City Court of Appeals which affirmed the judgment on the strength of the decision of this court in a companion case (Hutchison v. Thompson, infra), but transferred the case here -for a reexamination of the issues of law as authorized by Article Y, Section 10 of the Constitution on 1945.
This case and its companion have been in both the court of appeals and this court before, so we need not set out all the facts in detail. For a complete recitation of them see Knorp v. Thompson (Mo. App.), 167 S. W. (2d) 105; 352 Mo. 44, 175 S. W. (2d) 889; and Hutchison v. Thompson (Mo. App.), 167 S. W. (2d) 96; (Mo. Sup.), 175 S. W. (2d) 903.
The case was submitted to the jury under the humanitarian doctrine on the-issue of warning. This issue as framed was not the 'familiar, simple cine whether or not a whistle was sounded, but went farther and detailed the very manner in which the whistle should have been sounded. The jury was instructed it was the duty pf defendant to give a warning by sounding ‘ ‘ emergency or short blasts of the whistle” even though a crossing warning was then being given by whistle. In effect by such an instruction the court would announce a rule that a crossing warning being given by whistle is not sufficient, but should be interrupted so that an emergency warning could be sounded by the whistle. In the Hutchison case (175 S. W. (2d)
903) this court did say: “If the crossing [586] warnings are not sounded, or if sounded are ineffective, emergency warnings, short rapid blasts, should be given,” relying on Bebout v. Kurn, 348 Mo. 501, 154 S. W. (2d) 120.
The Bebout case was submitted on defendant’s failure to sound emergency warnings, or “short toots”' of the whistle; defendant claiming that the usual crossing warning was continuously sounded up to the time of the collision, that is “two longs and a short and a long whistle.” In considering this issue we said: “Appellants say emergency warning signals would have done no good, and therefore’ the failure to give them was not a proximate cause of the casualty/ This contention is based mainly on the theory that the crossing-signals sounded continuously over nearly 160 rods were just as good, citing Blackwell v. U. P. R. Co., 331 Mo. 34, 42, 52 S. W. (2d) 814, 816(3). " But as we have said, there was substantial evidence that the latter were not given, and if the jury so found then the emergency signals were all the more necessary.”
Thus, the essential issue in. both the Hutchison and Bebout cases was whether or not
any
warning whistle was given, and we held in both cases -a prima facie case for the jury was made on this issue. In the Bebout case there was testimony of witnesses, including the conductor of the train, that they heard no whistle of any kind sounded.
The record in the Bebout case showed that an “emergency” warning by whistle would be no louder and would make no more noise than the customary crossing warning by whistle.
We do not believe that even the humanitarian doctrine requires, a specific type of warning to be sounded on the whistle. The most it requires is the sounding of the whistle in some sufficient manner if other warnings, such as by bell, lantern, or otherwise, are not sufficient under the circumstances. It is the use of the whistle, not the manner of its use, which is required. If the Bebout and Hutchison cases hold otherwise, they should not be followed.
The issue whether an “emergency” warning was required instead, of the usual crossing warning was considered in Camp v. Kurn,, 235 Mo. App. 109, 142 S. W. (2d) 772, and the court appropriately said: ‘ ‘ There is little, or no conflict in the evidence. It is undisputed that as the train approached the crossing where the collision is alleged to have occurred, the bell was ringing, the station whistle was sounded, followed by the usual crossing signal, which continued up until the train hit the truck. It is a matter of common knowledge, that a crossing whistle is a warning to pedestrians and drivers of vehicles of an approaching train and that they should remain off of and away from such crossing until the train has passed, over and cleared same. The very object and purpose of the crossing whistle is to warn traffic of every kind that a train is about to pass over such crossing, and the;
dangers incident thereto. Such whistle was sufficient warning'
This court said in Zumwalt v. C. & A. R. Co. (Mo.), 266 S. W. 717 that we had often held that enginemen must give an ‘ ‘ emergency whistle” if by due care they can do so to warn “travelers in peril approaching a public crossing”, citing a number of cases. But an examination of the cases cited discloses that we did not intend to-prescribe the manner in which the whistle should be sounded such as by giving repeated sharp toots. We meant only the whistle should be used. For instance, in Logan v. C. B.. & Q. R. Co., 300 Mo. 611, 254 S. W. 706 the evidence showed-the whistle had been sounded for a previous street crossing in the City of Hannibal and had stopped blowing before reaching the crossing where the collision occurred and .no further warning by whistle was given. There was some testimony about an automatic signal bell at that .crossing but the court held .that tbe railroad was “duty botind to give him [plaintiff] an emergency whistle or apply the emergency brake to slacken or stop the train.- . .” And in Dutcher v. Wabash R. Co., 241 Mo. 137, 145 S.W. 63 we pointed out the means at hand for preventing injury by a train were ‘.‘bell, whistle and ability to stop. In some cases the monotonous stroke of the bell might be due care. In others, easily put, the alarm whistle timely used might be due care.” By the [587] use of the term “alarm whistle” we did not intend to prescribe the precise manner in which the whistle must be sounded but must have meant that since the whistle is louder than the bell due care under the circumstances of that case might require the whistle to be sounded instead of the bell. Again, in Rollison v. Wabash R. Co., 252 Mo. 525, 160 S. W. 995, we followed the same reasoning. There the court pointed out that the statute required a warning at a crossing by either bell or whistle, not by both. Brit under the humanitaiúan rule, and conceding in that case the bell was used, the court said: “It may be laid down as the rule in this jurisdiction, that, shifting and measured by circumstances, the duty to alarm with the whistle, when the monotonous stroke of the bell is plainly ineffective, as here . . . is an essential part and parcel of due care and of the humanity rule.”
Wé observe that Section 5213 R. S. 1939, Mo. R. S. A. in requiring a crossing signal by bell or whistle does not attempt to set out the manner in which the whistle should be sounded. Hyder v. Chicago, M. & St. P. Ry. Co., 219 Mo. App. 465, 275 S. W. 977, held the “stock alarm” whistle was not required by the statute.
We do not believe it is the province of the court to declare as a rule of law the exact manner in which a whistle must be sounded in order to comply with the duty of exercising due care to warn.
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DOUGLAS, P. J.
[585] Plaintiff has sued because of the wrongful death of her husband who was killed when a Missouri Pacific train operated by defendant trustee struck the truck in which he was riding at Elkhorn crossing, about one-half mile west of California, Missouri. She recovered judgment for $4,000. Defendant appealed to the Kansas City Court of Appeals which affirmed the judgment on the strength of the decision of this court in a companion case (Hutchison v. Thompson, infra), but transferred the case here -for a reexamination of the issues of law as authorized by Article Y, Section 10 of the Constitution on 1945.
This case and its companion have been in both the court of appeals and this court before, so we need not set out all the facts in detail. For a complete recitation of them see Knorp v. Thompson (Mo. App.), 167 S. W. (2d) 105; 352 Mo. 44, 175 S. W. (2d) 889; and Hutchison v. Thompson (Mo. App.), 167 S. W. (2d) 96; (Mo. Sup.), 175 S. W. (2d) 903.
The case was submitted to the jury under the humanitarian doctrine on the-issue of warning. This issue as framed was not the 'familiar, simple cine whether or not a whistle was sounded, but went farther and detailed the very manner in which the whistle should have been sounded. The jury was instructed it was the duty pf defendant to give a warning by sounding ‘ ‘ emergency or short blasts of the whistle” even though a crossing warning was then being given by whistle. In effect by such an instruction the court would announce a rule that a crossing warning being given by whistle is not sufficient, but should be interrupted so that an emergency warning could be sounded by the whistle. In the Hutchison case (175 S. W. (2d)
903) this court did say: “If the crossing [586] warnings are not sounded, or if sounded are ineffective, emergency warnings, short rapid blasts, should be given,” relying on Bebout v. Kurn, 348 Mo. 501, 154 S. W. (2d) 120.
The Bebout case was submitted on defendant’s failure to sound emergency warnings, or “short toots”' of the whistle; defendant claiming that the usual crossing warning was continuously sounded up to the time of the collision, that is “two longs and a short and a long whistle.” In considering this issue we said: “Appellants say emergency warning signals would have done no good, and therefore’ the failure to give them was not a proximate cause of the casualty/ This contention is based mainly on the theory that the crossing-signals sounded continuously over nearly 160 rods were just as good, citing Blackwell v. U. P. R. Co., 331 Mo. 34, 42, 52 S. W. (2d) 814, 816(3). " But as we have said, there was substantial evidence that the latter were not given, and if the jury so found then the emergency signals were all the more necessary.”
Thus, the essential issue in. both the Hutchison and Bebout cases was whether or not
any
warning whistle was given, and we held in both cases -a prima facie case for the jury was made on this issue. In the Bebout case there was testimony of witnesses, including the conductor of the train, that they heard no whistle of any kind sounded.
The record in the Bebout case showed that an “emergency” warning by whistle would be no louder and would make no more noise than the customary crossing warning by whistle.
We do not believe that even the humanitarian doctrine requires, a specific type of warning to be sounded on the whistle. The most it requires is the sounding of the whistle in some sufficient manner if other warnings, such as by bell, lantern, or otherwise, are not sufficient under the circumstances. It is the use of the whistle, not the manner of its use, which is required. If the Bebout and Hutchison cases hold otherwise, they should not be followed.
The issue whether an “emergency” warning was required instead, of the usual crossing warning was considered in Camp v. Kurn,, 235 Mo. App. 109, 142 S. W. (2d) 772, and the court appropriately said: ‘ ‘ There is little, or no conflict in the evidence. It is undisputed that as the train approached the crossing where the collision is alleged to have occurred, the bell was ringing, the station whistle was sounded, followed by the usual crossing signal, which continued up until the train hit the truck. It is a matter of common knowledge, that a crossing whistle is a warning to pedestrians and drivers of vehicles of an approaching train and that they should remain off of and away from such crossing until the train has passed, over and cleared same. The very object and purpose of the crossing whistle is to warn traffic of every kind that a train is about to pass over such crossing, and the;
dangers incident thereto. Such whistle was sufficient warning'
This court said in Zumwalt v. C. & A. R. Co. (Mo.), 266 S. W. 717 that we had often held that enginemen must give an ‘ ‘ emergency whistle” if by due care they can do so to warn “travelers in peril approaching a public crossing”, citing a number of cases. But an examination of the cases cited discloses that we did not intend to-prescribe the manner in which the whistle should be sounded such as by giving repeated sharp toots. We meant only the whistle should be used. For instance, in Logan v. C. B.. & Q. R. Co., 300 Mo. 611, 254 S. W. 706 the evidence showed-the whistle had been sounded for a previous street crossing in the City of Hannibal and had stopped blowing before reaching the crossing where the collision occurred and .no further warning by whistle was given. There was some testimony about an automatic signal bell at that .crossing but the court held .that tbe railroad was “duty botind to give him [plaintiff] an emergency whistle or apply the emergency brake to slacken or stop the train.- . .” And in Dutcher v. Wabash R. Co., 241 Mo. 137, 145 S.W. 63 we pointed out the means at hand for preventing injury by a train were ‘.‘bell, whistle and ability to stop. In some cases the monotonous stroke of the bell might be due care. In others, easily put, the alarm whistle timely used might be due care.” By the [587] use of the term “alarm whistle” we did not intend to prescribe the precise manner in which the whistle must be sounded but must have meant that since the whistle is louder than the bell due care under the circumstances of that case might require the whistle to be sounded instead of the bell. Again, in Rollison v. Wabash R. Co., 252 Mo. 525, 160 S. W. 995, we followed the same reasoning. There the court pointed out that the statute required a warning at a crossing by either bell or whistle, not by both. Brit under the humanitaiúan rule, and conceding in that case the bell was used, the court said: “It may be laid down as the rule in this jurisdiction, that, shifting and measured by circumstances, the duty to alarm with the whistle, when the monotonous stroke of the bell is plainly ineffective, as here . . . is an essential part and parcel of due care and of the humanity rule.”
Wé observe that Section 5213 R. S. 1939, Mo. R. S. A. in requiring a crossing signal by bell or whistle does not attempt to set out the manner in which the whistle should be sounded. Hyder v. Chicago, M. & St. P. Ry. Co., 219 Mo. App. 465, 275 S. W. 977, held the “stock alarm” whistle was not required by the statute.
We do not believe it is the province of the court to declare as a rule of law the exact manner in which a whistle must be sounded in order to comply with the duty of exercising due care to warn. Even if such was within our province, how could we properly do so without the testimony of technical experts as to the effect of the various ways
of sounding a whistle upon human hearing? A sufficient warning under the circumstances is all that is required.
Ordinarily the sufficiency of the warning under the circumstances of each ease would be a jury question. However, in this case since the only substantial evidence on that issue shows that the customary crossing warning by whistle was timely commenced, and was continued and was being sounded up to and even over the crossing,' we find as a matter of law such warning was sufficient under the circumstances here. It is contended that the fireman, who from his side of the cab saw the truck approaching the crossing, should' have sounded a warning whistle. But it was impossible for the fireman to sound the whistle because the engineer had preempted the use of the whistle and was blowing it all the way to the crossing.'
We hold plaintiff’s instruction in this case specifically requiring an “emergency or short blasts of the whistle” placed an improper burden on defendant. The instruction was erroneous in attempting to fix as a matter of law the exact manner in which the whistle should have been sounded in order to meet the requirement of exercising due care to give a sufficient warning under the circumstances.
Whether or not a whistle warning of any kind was sounded has been a strongly controverted issue in this case and its companion, the Hutchison case. In the latter we ruled the evidence was sufficient to take the case to the jury on that issue. If the evidence in this case is just the same, we should follow that ruling. But we find the evidence in this case is not the same, is not substantial,-and does not make a submissible case on the issue of warning.
In the Hutchison case plaintiff’s witness Ehlert testified he had driven over the crossing just ahead of the truck which was struck;' that he then saw
the train a quarter of a mile or better away; that he turned west on Highway 50 which runs parallel to the railroad track and about 80 feet from it; and that he proceeded 250 feet in the direction of the train, pulled over to -the shoulder and stopped. He testified he did not hear the train whistle. He also testified in that case that as he was travelling over the crossing he was' not paying any attention and was preoccupied with the thought of business, but presently'he turned his attention t'o the occupants of the truck "and looked'back to see how they were progressing'. Since he became attentive to the situation before the collision occurred we held his testimony made a prima facie case on the issue of warning.
-In the instant case the same witness repeated this testimony on direct examination. Yet on cross examination he stated not only that he did not remember hearing any whistle but he did not hear any. noise [588] of the train as it passed him,- and did not hear the sound of the collision with the truck;- that he was paying no attention to whether or not the train whistled; that he was in such a state of excitement he did not ,1-emember whether the train whistled- or not.
In these circumstances the witness’' testimony on direct examination is not substantial evidence that no whistle warning was sounded.
Where it is showm-that. a witness was in close proximity to the track, in.a position or situation to have heard the whistle if. it was sounded, and was attentive to whether the whistle' was in fact sounded, then his testimony that he heard no whistle is substantial evidence of the fact that no whistle was sounded, and it serves to contradict positive evidence to the contrary. In other words, the ultimate fact in such a situation is one for the jury to determine. See Stotler v. C. & A. R. Co., 200 Mo. 107, 98 S. W. 509; Connole v. I. C. R. Co. (Mo. App.) 21 S. W. (2d) 910; Dodd v. Terminal R. Assn. (Mo. App.), 108 S. W. (2d) 982; and the exhaustive annotation in 162 A. L. R. 9.
However in this case the only testimony that the whistle was not sounded was given by a witness who admitted he paid no attention to whether a whistie was sounded, who could'not remember whether or not is. was sounded, and’who could not recall even hearing the sound of the train passing by at 65 miles an hour, and who heard no sound from the collision. Clearly this character of testimony has no probative value and • presents no issue of fact. See McCreery v. United Railways Co., 221 Mo. 18, 120 S. W. 24. Plaintiff also used the fireman as her witness and he testified that the customary crossing warning by whistle was commenced at the whistling post a'quarter of a mile from the crossing and' continued being sounded up to the time of the collision.
Thus all the substantial evidence on the issue of warning shows that a sufficient warning was given. Since failure to give a sufficient warning was the 'only charge of negligence in the case and was ■ not proved, the case should not have been submitted to the jury.
Judgment
reversed.
The foregoing opinion by Douglas; J., in Division One, is adopted as the opinion of the Court en Banc.
Conlding', Clark
and
Hyde, JJ.,
and
Leedy, C. J.,
concur:
Ellison, J.,
dissents in separate opinion;
Tipton,. J.,
not sitting. ■ ■