Opinion
December 14, 1940. Rehearing Denied December 31, 1940.
1. — Appeal and Error. In passing on assignment of error in refusing defendant's demurrers to evidence, appellate court must accept as true all evidence favorable to plaintiff, give him benefit of all reasonable inferences therefrom, and disregard all evidence unfavorable to him.
2. — Appeal and Error. Where action for property damage was submitted by plaintiff solely under humanitarian doctrine, allegations of defendant's primary negligence will be treated by appellate court as having been waived.
3. — Negligence. Under humanitarian rule, if given case is so plain that average fair-minded men cannot reasonably differ, there is no case to be submitted to jury, but if there is ground for fair and reasonable difference of opinion, question is for jury.
4. — Negligence. To constitute cause of action under "humanitarian rule," plaintiff must have been in position of peril, defendant must have had notice thereof (if it was his duty to be on lookout, constructive notice suffices), defendant must have had present ability, after receiving such notice, to avert impending injury with means at hand, without injury to himself or others, and failed to exercise ordinary care to avert injury, and plaintiff must have been injured by reason of such failure.
5. — Railroads. Under "humanitarian rule," railroad train operator, who sees or by proper care would see a person heedlessly approaching and crossing railroad track, without looking to right or left and oblivious to his surroundings, when, if he would look, he would see coming train and could avoid injury, must use all proper care and means to avoid injuring him, though his negligence is integral part of his peril.
6. — Negligence. A person operating dangerous instrumentality must use diligence to avoid injuring person whom he sees or could see in or going into position of peril.
7. — Negligence. "Peril" or "imminent peril" within humanitarian doctrine means certain peril, not bare possibility of injury.
8. — Negligence. A "place of imminent peril" within humanitarian doctrine is place where there is certain danger imminently impending and admitting of no time for deliberation by person in peril between its appearance and impending calamity.
9. — Railroads. Locomotive enginemen had right to assume that driver of truck, slowing down from speed of five to ten miles an hour to two or three miles an hour as it approached railroad track, would stop truck before entering danger zone very few feet or inches from track.
10. — Railroads. A locomotive engineer is not required to slacken speed of train or sound warning whistle merely because he sees automobile approaching track, but so long as automobile is traveling at such speed that it can be stopped before going on track and there is nothing in driver's conduct to indicate that he is unaware of approaching train, no duty rests on engineer to reduce speed or sound whistle.
11. — Evidence. The Court of Appeals will take judicial notice of facts that some time must elapse from moment that locomotive engineer realizes danger of train colliding with truck approaching track until whistle can be blown or bell rung and that it takes some time for sound to travel and appreciable time for truck driver's mind and muscular system to act and for clutch to be released and brakes applied.
12. — Railroads. Evidence held insufficient to take to jury question of locomotive engineer's negligence under humanitarian doctrine in failing to give warning of train's approach by blowing whistle or ringing bell after truck reached danger zone.
Appeal from the Circuit Court of Stoddard County. — Hon. James V. Billings, Judge.
REVERSED AND REMANDED ( with directions).
M. Walker Cooper for appellant.
(1) Plaintiff's evidence was not sufficient to take his case to the jury upon the charge of negligence under the humanitarian doctrine. (a) In the absence of peril there is no duty to warn; and in the absence of obliviousness there is no duty to warn. Phillips v. Railroad, 87 S.W.2d 1035. (b) Obliviousness is certainly a necessary element to make a humanitarian negligence case of failure to warn. Pentecost v. Railroad, 66 S.W.2d 533; Scott v. Railroad, 86 S.W.2d 116; Womack v. Railroad, 88 S.W.2d 368. (c) In humanitarian negligence case based upon duty to warn for the purpose of preventing a person from going immediately into a position of peril it must appear that the injured party's obliviousness could have been known to the defendant if he had exercised ordinary care in keeping a lookout. Womack v. Railroad, 88 S.W.2d 368; Lynch v. Baldwin et al., 117 S.W.2d 273. (d) Under the humanitarian doctrine, an engineer of a train need not take any steps to avert an accident merely because he sees a motorist approaching a crossing from a point where he is still absolutely safe, since under such circumstances the engineer has a right to assume that the motorist will stop before permitting his vehicle to get upon the tracks or within reach of the overhang of the train. Neill v. Alton Railroad, 113 S.W.2d 1073. (e) Though it may have been apparent to the train operatives that the driver of plaintiff's truck approaching the crossing might be oblivious of the approach of the train when he was thirty feet from the track, yet, when he was traveling up an incline at a speed of not more than two or three miles per hour they could assume that he would not continue on and across the track without ever looking, where he was well acquainted with the location and the surroundings. Pinkley v. Railroad, 299 S.W. 100; Elkins v. Public Service Co., 74 S.W.2d 600. (f) In this case, and in every other case of similar nature, there must be some evidence, visible to the operatives on the engine, that the person injured did not see the train and was not going to stop before entering into the zone of peril. This must be shown to overcome the presumption that the driver was looking and saw the tracks and saw and heard the approaching train. Alsup v. Henwood, 137 S.W.2d 586, 590; Elkins v. Public Service Co., 74 S.W.2d 600. (2) After plaintiff elected to dismiss his charge of statutory negligence and to stand upon his charge of negligence under the humanitarian doctrine, it was improper to offer any evidence relative to the giving of the statutory signals for any crossings by this train, and such evidence was prejudicial in this case. (a) The humanitarian doctrine seizes upon the situation at the time of the peril and blots out all prior negligence of either party. Hagerman v. Rodgers, 101 S.W.2d 526. (b) Antecedent negligence cannot be considered in determining liability under the humanitarian doctrine. Jordan v. Railway, 73 S.W.2d 205; Pentecost v. Railroad, 66 S.W.2d 533; Alexander v. Railroad, 38 S.W.2d 1023, 1026; State ex rel. v. Bland, 15 S.W.2d 798. (3) Instruction No. P-6, offered by the plaintiff and given by the court, was erroneous because: (a) it did require the jury to find that the driver of the truck was oblivious to the oncoming train, but did not require the jury to also find that the defendant's engine operatives knew, or by the exercise of reasonable care could have known, of such obliviousness; (b) it did not require the jury to find that after the enginemen saw, or should have seen the truck entering into, or in, a place of peril, they could thereafter have given a warning in time for the driver of the truck thereafter to have stopped the truck in time to have avoided the collision; and (c) it said, "and if you further find that the failure of the defendant's agents, servants and employees in charge of said engine to ring any bell, or sound any whistle, or in any other manner warn the said Delmar Ballard, in time for him to have stopped the plaintiff's truck and avoid it being hit and struck by defendant's engine was the direct cause of the accident, then your verdict will be for the plaintiff," and it was therefore practically a peremptory instruction to find for the plaintiff unless the jury found that a warning had been given by the bell and by the whistle and in any other (possible) manner. (a) In a humanitarian case based upon a duty to warn for the purpose of preventing a person from going immediately into a position of peril, it is necessary that it appear that the injured party was oblivious to his danger, and that such obliviousness was known to the defendant or could have been known if the defendant had exercised ordinary care. Pentecost v. Railroad, 66 S.W.2d 533; Scott v. Railroad, 86 S.W.2d 116; Womack v. Railroad, 88 S.W.2d 368; Lynch v. Baldwin et al., 117 S.W.2d 273. (b) It (the instruction) does omit the elements of plaintiff's peril and the defendant's knowledge thereof in time thereafter to avoid the collision. The omitted elements are basic facts of liability under the humanitarian doctrine. Byrnes v. Poplar Bluff Printing Co., 74 S.W.2d 20, 26; Banks v. Morris Co., 257 S.W. 482; Massman v. Public Service Co., 119 S.W.2d 833, 836. (c) The defendant was not required to give a warning by ringing the bell, and also by sounding a whistle, and also in any other (possible) manner; a warning by ringing the bell or by sounding the whistle was sufficient. Wolf v. Hines et al., 224 S.W. 143. (4) In a humanitarian case based upon a failure to warn, the duty to warn arises at the time the defendant sees, or by the exercise of reasonable care should see, that the plaitniff is in, or is immediately about to enter into, a position of peril. Pentecost v. Railroad, 66 S.W.2d 533; Scott v. Railroad, 86 S.W.2d 116; Womack v. Railroad, 88 S.W.2d 368; Lynch v. Baldwin et al., 117 S.W.2d 273. (5) There was no evidence in this case that defendant's employees would be discharged, or that it would go hard with them, if they admitted on the witness stand that they did not ring the bell nor sound the whistle. Plaintiff's argument to that effect was for the purpose of creating a prejudice in the minds of the jury against defendant and against the credibility of defendant's witnesses who were employees of defendant; and when counsel oversteps the bounds of propriety in an argument to the jury by appealing to the prejudice of juries, it is the duty of the court, upon an objection being made, to rebuke counsel in such way as to dislodge from the minds of the jury any ill effects which the unwarranted appeal may have placed there, if such ill effects can be removed in that way. Smith v. Railway, 31 S.W.2d 105, 107.
C.A. Powell for respondent.
(1) In reviewing the sufficiency of plaintiff's evidence to make issue for the jury, only testimony most favorable to plaintiff is considered by the appellate court, and the plaintiff is given the benefit of all reasonable inferences which may be drawn therefrom. James H. Forbes Tea Coffee Co. v. Baltimore Bank (Mo.), 139 1215 S.W.2d 507; Shroder v. Barron-Dady Motor Co. (Mo.), 111 S.W.2d 66; Rowe v. Mo.-Kan.-Tex. Ry. Co., 339 Mo. 1145, 100 S.W.2d 480; Alsup v. Henwood (Mo. App.), 137 S.W.2d 586; Willhauck v. Chicago, R.I. P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 336. (a) In determining whether a plaintiff has made a case for the jury under the humanitarian doctrine, no contradictory evidence of the railroad will be considered by the appellate court. Hilton v. Terminal R. Assn. of St. Louis (Mo.), 137 S.W.2d 520; (b) A railroad has the duty to keep a lookout at a public crossing. Hilton v. Terminal R. Assn. of St. Louis (Mo.), 137 S.W.2d 520. (2) There was no error in the respondent's cross-examination of the appellant's witnesses with reference to ringing bells or sounding whistles before the appellant's train reached the crossing where the accident occurred. (a) A witness may be cross-examined as to matters he testifies concerning on direct examination. Asbury v. Fidelity National Bank Trust Co., 231 Mo. App. 437, 100 S.W.2d 946. (b) A railroad company has the common-law duty to warn one of his danger as well as to give statutory signals and even though statutory signals were in fact given. Hoelzel v. Chicago R.I. P.R. Co., 337 Mo. 61; 85 S.W.2d 126; Herrell v. St. Louis-San Francisco Ry. Co., 322 Mo. 551, 18 S.W.2d 481. (c) The extent of cross-examination of a witness, even on collateral matters, is largely within the discretion of the trial court, and there is no reversible error on account thereof unless there is a palpable abuse of such discretion. Gardner v. St. Louis Union Trust Co. (Mo.), 85 S.W.2d 86; Mann v. St. Louis-San Francisco R. Co. (Mo.), 72 S.W.2d 977; Schipper v. Brashear Truck Co. (Mo.), 132 S.W.2d 993. (3) There was no error in the giving of Instruction No. P-6 offered by the respondent. (a) In an action under the humanitarian rule, an instruction need not require the jury to find that a plaintiff was oblivious to his peril, nor that a defendant could have known of his obliviousness had he exercised ordinary care in keeping a lookout. Perkins v. Terminal R. Assn. of St. Louis, 340 Mo. 868, 102 S.W.2d 915, 920-2, Brown v. Alton R. Co. (Mo. App.), 132 S.W.2d 713, 725; Willhauck v. Chicago, R.I. P.R. Co. (Mo.), 61 S.W.2d 336, 338; Wenzel v Busch et al. (Mo.), 257 S.W. 767, 770-1; Jordan v. St. Joseph R.L.H. P. Co., 335 Mo. 319, 73 S.W.2d 205, 208. (b) An appellant cannot complain of an instruction more favorable to him than he is entitled. Gilchrist v. Kansas City Rys. Co. (Mo.), 254 S.W. 161; McKenzie v. Randolph (Mo. App.), 257 S.W. 126; Grubbs v. Kansas City Public Service Co., 329 Mo. 390, 45 S.W.2d 71; Lepchenski v. Mobile O.R. Co., 332 Mo. 194, 59 S.W.2d 610; Englemann v. Railway Exp. Agency, 340 Mo. 360, 100 S.W.2d 540; Fourcade v. Kansas City, 342 Mo. 847, 118 S.W.2d 1; Hurst v. Montgomery Ward (Mo. App.), 107 S.W.2d 183; Sec. 1062, R.S. Mo. 1929. (c) A railroad's failure to warn of its train's approach to a crossing by any particular method would not be negligence if adequate warning were given by some other method. Blackwell v. Union Pacific R. Co., 331 Mo. 34, 52 S.W.2d 814. (4) When a plaintiff's instruction under the humanitarian doctrine declare that there is a duty on the defendant to act when the plaintiff is approaching or entering a position of peril, the defendant cannot complain when his own instruction declares that the defendant's duty to act arises when the plaintiff is approaching or entering a position of peril. Crew v. Kansas City Public Service Co. (Mo.), 111 S.W.2d 54, 58-9; Carle v. Akin (Mo.), 87 S.W.2d 406; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562. (a) The recent cases do not impose a burden on the defendant to warn or act until a plaintiff is in a position of peril. Kick v. Franklin (Mo.), 147 S.W.2d 512; Hilton v. Terminal R. Assn. of St. Louis (Mo.), 137 S.W.2d 520; State ex rel. Snider v. Shain et al. (Mo.), 137 S.W.2d 527; Poague v. Kurn (Mo.), 140 S.W.2d 13. (5) It was proper for the attorney for the respondent, in his argument to the jury concerning the weight to be given to the testimony of the appellant's employees, to say in substance: "What would happen if these employees admitted in their testimony that the whistle didn't sound or the bell didn't ring?" Gessley v. Mo. Pacific Ry. Co., 32 Mo. App. 413, 418-9; Gordon v. Kansas City Southern R. Co., 222 Mo. 516, 121 S.W. 80; State ex rel. State Highway Commission v. Ferbert (Mo. App.), 71 S.W.2d 55. (a) The trial court has a large discretion in permitting or restraining argument. Goyette v. St. Louis-San Francisco R. Co. (Mo.), 37 S.W.2d 552; Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919; Goucher v. Woodmen Accident Co., 231 Mo. App. 573, 104 S.W.2d 289.
This is an action by plaintiff to recover damages alleged to have resulted to his automobile truck while being driven by his agent in a collision with one of defendant's freight trains. The cause was tried to a jury resulting in a verdict and judgment for plaintiff, from which judgment defendant has duly appealed to this court.
The petition is in conventional form and among other things alleges in substance that defendant and its employees operating said railroad engine, carelessly and negligently drove and operated said engine with great force and violence against plaintiff's truck and carelessly and negligently failed to sound or ring any bell or whistle at a distance of eighty rods before it reached said crossing, or so sound any bell or whistle from such place until it crossed said crossing. The petition further alleges that plaintiff's agent, servant and employee was driving plaintiff's truck at a slow rate of speed, unaware of the approach of the locomotive engine and train coming behind him and going in the same direction on said railroad track, and in turning said truck to approach said crossing he was compelled to turn to the right and could not see the train approaching from behind; that defendant's employees in charge of and operating said locomotive saw, or, by the exercise of ordinary care could have discovered the plaintiff's servant, agent and employee in plaintiff's truck in such position of peril in time to have warned him of the approach of the train by sounding the bell or whistle and that had said bell or whistle been so sounded by defendant's agent operating said locomotive, after they saw, or by the exercise of ordinary care could have discovered plaintiff's agent and employee approaching the said track and in said position of peril, he could have stopped the truck and avoided the truck being hit by the defendant's locomotive engine; that defendant's failure to warn was the direct and approximate cause of the injury and damages to plaintiff's truck.
The answer was a general denial and a plea of contributory negligence.
The collision in which the truck is alleged to have been damaged occurred at a public road crossing a few miles north of Dexter, Missouri, and about one quarter miles north or northeast of the "B" gravel plant of the G.G. Hill Gravel Company. This gravel plant is located on defendant's right of way, on the west side of the tracks and south or southwest of the railroad crossing. The gravel pits from which the gravel is taken for the plant are located north of the crossing and the public road runs north and south, the north end being used in going from the crossing up to the gravel pits. There is a private graded, gravel road from the plant to the crossing which intersects with the north and south public road at the crossing and is used in connection with the north end of the public road in hauling from the pits down to the plant. It is west of the tracks and for some distance south of the intersection at the crossing is on defendant's right of way and along near the ends of the ties in the west track or up against the grade of defendant's roadbed.
Defendant's right of way at this point is one hundred feet wide with a double track located so that the center of the right of way is about halfway between the two tracks. The distance between the two tracks, from center to center, is fourteen feet and the distance between the rails of each track is four feet, eight and one-half inches and the distance from the west rail of the west track across the road over to the right of way fence is about forty feet at a point immediately south of the crossing. There are two series of planks used for crossing the tracks, with a narrow space between the two series. Cars can cross only where the planks are located. The railroad tracks at the point of the crossing are somewhat higher than the gravel road parallel thereto and vehicles have to go up a slight incline in passing over the crossing.
At this point the railroad runs almost, if not, due northeast and the public road runs north and south, crossing the railroad at an acute angle, so that one coming from the plant on the private road parallel with the railroad tracks and turning south at the crossing must turn at an angle of approximately forty-five degrees.
The plaintiff is an employee of the gravel company, and was using his truck at the time it was damaged for hauling gravel, he having employed Delmar Ballard to drive and operate same. Ballard had been working for about a year and a half in this capacity and was thoroughly familiar with defendant's railroad at this point, the operation of defendant's trains and the condition of this crossing.
An August 25, 1938, he drove plaintiff's truck, loaded with gravel, from the plant up the private road to the crossing expecting to turn south at the crossing, cross over the railroad tracks and go on to Sikeston where he was to deliver the gravel. At the same time appellant's freight train was traveling north on the west track and the truck and the lead engine met at this crossing. No one was injured in the collision but the truck was damaged.
Plaintiff's evidence tended to prove that the train was traveling at the rate of thirty-five or forty miles per hour and that it gave no warning by bell or whistle, and that the truck was traveling from five to ten miles per hour along the road parallel to the track and that after making the turn to the right at the crossing it slowed down to a slower speed and that at the time the truck reached the crossing it was going only two or three miles per hour. It also tended to prove that after the train passed the tipple of the gravel plant there were no obstructions to prevent the trainmen from seeing the truck nor to prevent the driver of the truck from seeing the oncoming train.
At the close of plaintiff's case the defendant offered instructions in the nature of demurrers to the testimony, generally and also specifically upon the charge of statutory negligence and upon the charge of negligence under the humanitarian doctrine. The plaintiff then elected to dismiss as to the charge of statutory negligence and to stand upon the charge of negligence under the humanitarian doctrine, whereupon the court overruled defendant's demurrers.
Defendant's evidence tended to prove that the bell was ringing upon the lead engine and that the engineer was giving the crossing whistle, the last long blast of which ended at or near the crossing, at which time the engineer applied the emergency brakes when advised by the fireman that he believed they were going to hit a truck. Defendant's evidence also tended to show that the truck was traveling at a faster rate of speed, but that the speed was reduced at the turn and was continued to be reduced up to the crossing.
At the close of the whole case defendant again offered instructions in the nature of demurrers to the evidence, one of which was general, the other directed specifically to the negligence charge under the humanitarian doctrine. These demurrers were by the court overruled.
Defendant urges six assignments of error, the first of which is: "The court erred in refusing the instructions offered by the defendant in the nature of demurrers to the evidence."
In passing upon this assignment it is the duty of the court to accept as true all evidence favorable to plaintiff and to give him the benefit of all reasonable inferences that may be drawn therefrom and to disregard all unfavorable evidence. [Tea Coffee Co. v. Baltimore Bank (Mo.), 139 S.W.2d 507; Cento v. Security Building Co. (Mo.), 99 S.W.2d 1; Willhauck v. Ry. Co., 332 Mo. 1165, 61 S.W.2d 336.]
Since this case was submitted by plaintiff solely under the humanitarian doctrine the remaining allegations of primary negligence will be treated as having been waived. The sole question, therefore, in considering the demurrers to the evidence is whether a case for the jury was made under the humanitarian doctrine. The law in this State seems to be well settled that under the humanitarian rule, if a given case is so plain that average fair-minded men cannot reasonably differ there is no case to be submitted; but if there is ground for fair and reasonable difference of opinion about it, the question is for the jury. [Lynch v. Baldwin (Mo.), 117 S.W.2d 273; Perkins v. Terminal R. Assn., 340 Mo. 868, 102 S.W.2d 915.]
It has been well stated that "The constitutive facts of a cause of action under the humanitarian rule, stated in their simplest terms, without any of the refinements, limitations or exceptions which might arise on a particular state of facts, are contained in this formula: `(1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured.' [Banks v. Morris Co., 302 Mo. 254, 273, 257 S.W. 482, 484; McCoy v. Home Oil Gas Co. (Mo. App.), 60 S.W.2d 715.]"
"Thus in this State a person may heedlessly and deliberately approach and go across a railroad track with bowed or averted head, looking neither to the right nor the left and oblivious to his surroundings, when, if he would but look, he would see a coming train and could avoid injury; yet, if the operator of the train sees, or by proper care would see, such person going into or continuing in the danger zone, but oblivious of the impending danger, though negligent in being so, he must use all proper care and means to avoid injuring him. In other words, he must not, if he can avoid it, run down or injure a careless man, though his very carelessness is an integral part of his peril, and he could, if he would, avert such peril. . . . The Missouri rule . . . requires a person operating a dangerous instrumentality to use diligence in avoiding injury to a person whom he sees or could see in or going into peril." [Bollinger v. St. Louis-San Francisco R. Co., 334 Mo. 720, 67 S.W.2d 985, 990.]
But in the Restatement of the Law of Torts, sec. 480, quoted with approval in the case of Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 1167, 88 S.W.2d 368, 371, it is said: "It is not enough that the defendant should see the plaintiff in a position which would be dangerous were the plaintiff not aware of what is going on. The defendant must also realize or have reason to realize that the plaintiff is inattentive and, therefore, is in peril. The defendant is entitled to assume that the plaintiff is paying or will pay reasonable attention to his surroundings; until he has reason to suspect the contrary, he has no reason to believe that the plaintiff is in any danger. Therefore, the defendant is liable only if he realizes or has reason to realize that the plaintiff is inattentive and consequently in peril. Thus, if an engineer of a train approaching a level highway crossing sees a traveler approaching the track on foot or in a vehicle, he is not required to take any steps either to warn the traveler by an additional blast of his whistle or to bring the train under special control, since he is entitled to assume that the traveler has discovered or will discover the oncoming train and will stop before reaching the crossing. (Italics ours.) However, it is not necessary that the circumstances be such as to convince the defendant that the plaintiff is inattentive and, therefore, in danger. It is enough that the circumstances are such as to indicate a reasonable chance that this is the case."
"Peril," or "imminent peril," as that term implies when used in connection with the humanitarian doctrine, means certain peril and not a bare possibility of danger. A place of "imminent peril" means a place where there is certain danger imminently impending and admits of no time for deliberation on the part of the person in peril between its appearance and the impending calamity. [Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562, 569; Wallace v. St. Joseph Ry. L.H. P. Co., 336 Mo. 282, 77 S.W.2d 1011; Clark v. Atchison T. S.F. Ry. Co., 319 Mo. 865, 6 S.W.2d 954, 960; Camp v. Kurn (Mo. App.), 142 S.W.2d 772.]
Keeping in mind the foregoing rules we shall determine whether there is any substantial evidence to submit the case to the jury under the humanitarian doctrine.
Plaintiff asserts that a case was made because of failure of the engineer to warn. The evidence on the part of plaintiff discloses that Delmar Ballard, the driver of the truck, was traveling on the gravel road (the truck loaded with gravel) leading from the plant along parallel with the railroad tracks up to the crossing where the collision occurred. Ballard testified: "As I approached the crossing that day I left the plant driving in second gear about five to ten minutes per hour and did not drive any faster before I reached the crossing. I drove right up the road and you have to make a big circle and I made this circle. I was sitting on the left hand side of the truck, turning to the right and I couldn't see back there when I made that turn. I had to watch that track and hit it and you can't watch that and watch every place else and you can't see very far down there until you got right upon the tracks. . . . I got clear up on the crossing, clear upon the rails, both of them; I pulled up there in low going about two or three miles an hour. I didn't know that a train was going northeast along that track until I got clear upon the track when I heard it coming; I just heard the noise of the train; I didn't hear no whistle and I didn't hear any bell ring. The train was going in the same direction I had been traveling before I got to the crossing; . . . While going up the incline toward the crossing and driving two or three miles an hour I could have stopped the truck in one-half foot or a foot. All you would have to do is to throw in the clutch; you wouldn't have to put on the brake for it would have rolled back."
On cross-examination he testified: "I didn't stop before I went up on the crossing; I drove up there about two miles an hour. . . . I changed my speed from the five or ten miles an hour to the two or three miles an hour just before I made the turn toward the crossing. . . . As I started to turn to the right to go on this crossing I had to travel fifteen, twenty, thirty or forty feet before I reached the crossing; I had to cross the road. . . . I didn't hear any bell ring or whistle sound after the accident occurred. When I pulled up on the track and heard the train coming I looked in that direction and the train was forty or fifty feet from me. I immediately stopped and started to back. . . . As I started to turn and approach this crossing I couldn't see a train coming; I couldn't see around my truck. I was on the left hand side and making a left hand turn."
Again, on cross-examination he stated: "I didn't start making the turn back from the crossing; I was right up at the crossing when I started making the turn. . . ."
C.M. Doty, the fireman, testifying on the part of the defendant, stated: "I first saw the truck when we were 150 or 175 feet from the crossing. He must have been perhaps 20 or 25 feet from where he made the turn to the right. It was just before he turned to the right. . . . When I saw the truck suddenly turn to the right it was about 20 or 25 feet from the turn to the crossing; that is, upon the crossing and I guess the engine was about 100 feet from the crossing then, and about 50 or 60 feet from the crossing when he got on the crossing. Prior to the time he made this sudden turn to the right I had not seen anything to indicate that he didn't know the train was coming, nor had I seen anything to indicate that he expected to cross at that crossing. Q. Now was the speed of the truck slowed up at all before he got to the crossing? A. It seemed that he was trying to stop before getting on the crossing. Q. Was there a slowing up of the speed to indicate that he was trying to stop? A. Yes sir. . . . Q. It seemed that as he made the turn he began slowing up? A. Yes sir. . . . Q. Now, how close was he to the crossing before it occurred to you that he was not going to stop and before you spoke to the engineer? A. It must have been ten or twelve feet."
On cross-examination he testified: "When I saw this man driving up the road I didn't see that he was going to turn; when he was turning I realized he was turning to the right. I was sitting on the fireman's seat and was looking when he first started to turn. When he turned he had about thirty feet to go before he got to the crossing; that is my opinion of it. I was never off on the ground there. The train was going about 35 miles an hour. . . . While he was going 30 feet we went something like 50 or 60 feet. . . . When he got on the crossing I judge we were 30 or 40 feet away, maybe a little better. While he had gone about 30 feet we had gone from about 90 or 100 feet to about 30 or 40 feet. We didn't slow down. It was impossible for us to slow down — I saw him start to back off the track. I didn't know there was a little incline up to the crossing. As soon as I saw him start to turn — it's kind of confusing — as soon as I got my mind set to tell him I said to the engineer: `It looks like we are going to hit a truck,' and I reached for the bell at the same time. The engineer was blowing the whistle at that time. He blew it continuously until we crossed the crossing. The bell was ringing all that time — it is automatic — I did not turn it off."
There was sharp conflict in the evidence as to the ringing of the bell and the blowing of the whistle. The uncontradicted evidence was that the freight train was about 4800 feet long and pulled by two large engines.
Accepting the most favorable evidence to plaintiff we must assume that the truck was traveling at a speed of three miles per hour or four and two-fifths feet per second; the train at a speed of thirty-five miles per hour or fifty-one and one-third feet per second. Witness Ballard, the driver of the truck, testified he could have stopped it "in one-half foot or a foot." Applying the rule heretofore stated, Ballard, and the truck were not actually in a place of imminent peril until he got within one-half foot or one foot of a line that would have been traveled by the over-hang of the engine, which, according to the evidence, extends "beyond the ends of the ties, perhaps a couple of inches or three inches." Assuming, as we must in passing upon the demurrer, that no alarm or warning was given, we must determine whether there was any evidence to establish the fact that if proper warning had been given the collision could have been avoided. Since the truck was traveling at about four and two-fifths feet per second and could have been stopped within one foot, it is obvious that it did not enter a position of peril, that is, the danger zone, until it reached the point where it could not be stopped before entering the pathway of the train. The collision therefore, must have occurred within less than a second after the truck reached the danger zone. Consequently the jury is left to a mere guess as to whether, if a warning had been given, the collision would have been averted. There was nothing in the conduct of the driver of the truck, considering the slow rate of speed with which the truck was traveling or any fact or circumstance disclosed by the record to indicate to the engine men that plaintiff was oblivious to his danger and that he intended to drive the truck upon the track in front of the approaching train. The truck was slowing down and did slow down as it approached the track from a speed of five to ten miles an hour to two or three miles an hour, which would indicate to the engine men that the driver was slowing the truck to a stop before reaching the track to permit the train to pass without danger of a collision. Therefore, the engine men had a right to assume that the driver would stop his truck before entering the danger zone, which under the facts, was a very few feet or inches from the track. [Elkin v. Public Service Co., 335 Mo. 951, 74 S.W.2d 600.]
An engineer is not required to slacken the speed of his train or sound a warning whistle merely because he sees an automobile approaching the track. So long as the automobile is traveling at a speed at which it can be stopped before going upon the track, and there is nothing in the conduct of the driver to indicate that he is unaware of the approaching train, no duty rests upon the engineer to act either in reducing the speed of his train or sounding a warning whistle. [Camp v. Kurn, supra; Poague v. Kurn et al. (Mo.), 140 S.W.2d 13; Hilton v. Terminal R. Assn. (Mo.), 137 S.W.2d 520; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961.]
Obviously, the train was less than fifty-one and one-third feet from the point of collision at the time plaintiff's truck reached the danger zone. It would take less than a second to cover that distance. There is no evidence that if a proper warning had been given by the engine men at the time the truck reached the danger zone the collision could have been avoided. But the court will take judicial notice of the fact that some time must elapse from the moment the engineer realizes the danger and the time the whistle can be blown or the bell rung; that it takes some time for sound to travel, an appreciable time for the truck driver's mind and muscular system to act, for the clutch to be released, and the brakes applied. [Stark v. Berger, supra.]
From the foregoing observations it is our conclusion that the evidence fails to make a submissible case. The judgment of the trial court is reversed and the cause remanded with directions that the demurrer be sustained and judgment entered for defendant. Tatlow, P.J., and Smith, J., concur.