D. H. Eby and Ben. 3. Hulse, both of Hannibal, for respondents.
JAMES T. BLAIR, J.
Certiorari. The record brought here by the writ is that of the St. Louis Court of Appeals in. Flatten v. C., B. & Q. H. R. Co., 233 S. W. 281. The principal question discussed by the Court of Appeals is whether the plaintiff in the case before it was guilty of contributory negligence as a matter of law. The court held he was not, and that the question of contributory negligence was for the jury. Relator contends this ruling conflicts with controlling decisions of this court.
The Court of Appeals stated the facts as follows:
"The accident happened where the Hannibal and Paris gravel road crosses defendant's line of railway, about a mile and a half west of the city limits of Hannibal. Defendant's railway crosses this gravel road at the point where the accident occurred, at an acute angle going west. The Missouri, Kansas & Texas Railway runs parallel with defendant's line of railway, and 83½ feet south at this crossing. On account of the angle at which the two lines of railway cross the gravel road, it is 220 feet from the point where the gravel road crosses the Chicago, Burlington & Quincy Railroad to where it crosses the Missouri, Kansas & Texas Railway. Plaintiff was going west over this gravel road, driving a team of horses hitched to a spring wagon about 7 o'clock on the evening of the accident, which occurred on November 17, 1916. Plaintiff had been living in Halls county, west of this crossing, and had traveled over this crossing for a number of years. When plaintiff got within 100 feet of this, crossing, his attention was drawn to a train coming from the east, traveling in the same direction in which he was traveling. He saw the headlight of the engine, which was something near a quarter of a mile away when he first observed it. He could see the reflection of the light, which extended up the valley and to the south of defendant's line of railway. Le continued to drive toward the crossing, and, as he said, listened for the ringing of the automatic bell which had been maintained at this crossing by defendant for a number of years, but which on this occasion was out of order and did not ring. He continued to look back as he drove toward the track. Plaintiff had traveled over this road for 10 years, during all of which time this bell had been at this crossing. He says he had never known it to fail to ring when trains were passing before, although he had not traveled over this particular road for about three weeks prior to the accident. The railroad approaches the gravel road from the south with a curve, swinging to the north as it crosses the gravel road. Plaintiff states that he thought the train was on the Missouri, Kansas & Texas track, because no bell was ringing at the Chicago, Burlington & Quincy crossing, because of the way the light reflected" up the valley from the headlight on the engine, and for the further reason that he noticed the train was carrying a passenger coach, and he did not know that the Chicago, Burlington & Quincy ever carried a passenger coach on its freight trains, but that he had noticed such being done on the Missouri, Kansas & Texas freight trains. When his horses stepped on the front rails, the engine came around the
curve, and flashed the light on them. They suddenly turned to the right, threw plaintiff out, and when he fell down by the side of the track the train ran over one of his hands, causing three of his fingers to be crushed, which necessitated amputation."
The court disposed of the question of contributory negligence as follows:
"In the case at bar, we have two lines of railway, running parallel, and close together. The ringing of the bell in this particular case would have served the additional' purpose of informing plaintiff upon which line of railway the train was traveling as it approached the crossing. Defendant's negligence is established when it is shown that the automatic bell maintained at this crossing for the purpose of warning travelers of the approach of trains upon these tracks had been out of order for a sufficient length of time to enable defendant, by the exercise of ordinary care, to know that it was not in working order. Defendant's negligence having been established, was plaintiff guilty of contributory negligence as a matter of law such as to bar his right to recovery? The facts of this record present a very close question, which under a slightly different state of facts would perhaps necessitate a different ruling.
"This accident occurred after dark, and there was a slight elevation between the gravel road and defendant's railway. Plaintiff saw a passenger car attached to this freight, which he had never before noticed on a freight train of defendant, but had seen such attached to a freight train, or to freight trains of the Missouri, Kansas & Texas Railway. This is one fact which would give him some reason for believing the train was being operated over the Missouri, Kansas & Texas Railway. Another reason given by plaintiff why he thought the train was on this other track was that the rays of light coming from the headlight on...
