RAGLAND, J.
This is an original proceeding by certiorari. Relator seeks to quash the judgment of the Kansas City Court of Appeals, rendered at ifs March term, 1922, in the case of Cohen v. Quincy, Omaha & Kansas City Railroad. Co., 255 S. W. 327.
The issues under the pleadings in the case just mentioned were outlined by the Court' of Appeals as follows:
"The petition alleges that there was an ordinance of said city in force, limiting the speed of trains to 7 miles per hour in that part of the city where the collision occurred, and also requiring the bell on each locomotive to be rung continuously while passing through the city. It then charges that on October 15, 1917, at defendant's crossing over Centennial avenue in add portion of said city of Kirksville, plaintiff was struck and injured and his automobile demolished by defendant's engine and train of cans, then being negligently run at a greater rate of speed than 7 miles per hour, to wit, at the rate of 30 miles per hour, and also being negligently run without the ringing of said bell; also that while plaintiff was approaching to and was on said track he was in a position of danger and was oblivious of his peril, and the train operators saw, or by the exercise of ordinary care could have seen and discovered, plaintiff's peril in time, by the exercise of ordinary care on their part, to have stopped or slackened speed and thereby avoided injuring plaintiff, but that they negligently failed to exercise ordinary care, or any care, to prevent striking plaintiff after they discovered him in peril as aforesaid, and negligently failed to exercise ordinary care to discover his peril as aforesaid, by reason of all which plaintiff was struck, injured, and damaged to the extent and in the particulars therein specified.
"The amended answer was a general denial, together with a plea of contributory negligence, in that plaintiff went upon the track directly in front of the moving train, without due care on his part, and that such negligence contributed to and caused the collision. The reply to the amended answer was a general denial."
The trial court, at the close of plaintiff's case in chief, directed a verdict for defendant, on the ground, presumably, that the evidence showed that plaintiff was guilty of contributory negligence as a matter of law. The facts disclosed by the evidence, together with the conclusions reached by the Court of Appeals with respect thereto, were set forth in the opinion as follows:
"At the time of the injury plaintiff was 73 years old, but was a very active and vigorous man," being in possession of all his faculties, able to read without glasses, and with his hearing and sight unimpaired. He was at the time mayor of the city of Kirksville, was a physician therein, and had practiced medicine there for 50 years, and was responding to a professional call when he got hurt.
"He was traveling in a Ford coupe, an inclosed automobile, the windows of which were open on both sides, having been lowered into the body of the car.
"He came west on Cottonwood street to Centennial avenue, and turned north thereon at a point 560 feet south of defendant's crossing, and continued north thereon, stopping at intervals as hereinafter stated, until he reached the crossing where he was struck by defendant's west-bound passenger train, traveling through said city and over said crossing at the rate of from 30 to 35 miles per hour.
"Centennial avenue, as indicated, runs north and south, defendant's railway crossing it, running practically east and west. About 500 feet east of the east line of Centennial avenue, the Wabash Railway runs north and south, and the defendant's railway crosses the Wabash at about that distance east of defendant's crossing on Centennial avenue. On the east of Centennial avenue, between it and Wabash railway, a tract of land extends from defendant's railroad south for a distance of several hundred feet to Cottonwood street. At that time the roadway of Centennial avenue, as it went north from Cottonwood street to the crossing, was on low ground called a `swag,' and the ground between Centennial avenue and the Wabash Railway was also denominated by certain of the witnesses as a `swag or swale.' A switch track or `Y,' connecting the two railroads, started on the south of defendant's main line at a point a little west of Centennial avenue, and, after crossing the latter, curved to the southeast and joined the Wabash Railroad at a point a short distance north of Cottonwood street. Alongside and south of this Y or switch track a bank or grade had been thrown up, and where the main and switch tracks crossed Centennial avenue they were not quite on a level with the grade of the street, being a little lower than it was. The bank or grade alongside and south of the Y or switch track was, where it crossed Centennial avenue, some little higher than the switch and main tracks, and as this bank or grade continued east and south, following the Y track's curve to the Wabash Railroad, said grade gradually rose to a height of some 10 or 12 feet, and the switch track north and alongside of this bank was some 3½ feet lower than the top of the bank. The defendant's main track, as it ran east from Centennial avenue, went lower and lower in a cut that exists there. Three box cars, either coupled together, or standing as close to one another as if they were, stood on the Y track, the westernmost one being close up to the east side of Centennial avenue, and a fourth car stood on the same track about 4 feet from the eastern most end of the other three. Close to and on the south side of the main track, and about 60 yards east of Centennial avenue was a box car used as a toolhouse by the section men. The center of the Y or switch track, at the middle point of Centennial avenue, was 8 or 10 feet south of the center of the main track at that point. On the bank or grade south of the
switch and east of these cars lay also several piles of telegraph poles some 6 feet in height and extending east for perhaps half or two-thirds of the length of the Y. The evidence is that on account of the above-mentioned conditions and obstructions, the view of defendant's track east of Centennial avenue was obstructed and cut off so that, as plaintiff in his car came north along Centennial avenue to the crossing, he could not see a train coming from the east toward the crossing.
"It was a clear day with perhaps a few clouds, and there was no wind blowing. Plaintiff was acquainted with the time of the trains, knew that defendant's west-bound passenger was due at 10:10 in, the morning, and, as it was then about 11 o'clock, he supposed that it had passed, but was not certain that it had, because it was known to be frequently late. Plaintiff, after turning north on Centennial avenue, came nearly to a standstill in front of the schoolhouse situated on the west side of Centennial avenue, about 100 feet or more north of, Cottonwood street, and there listened and looked northeast across the above-described low ground to ascertain if any train was coming on defendant's line. Owing to the bank of grade alongside the Y, the cut, and the other obstructions mentioned, he would not see a twain, and though he listened he could not hear any. A street, 50 feet wide, lay north of the schoolhouse yard and ran east to Centennial avenue, but went no further in the middle of the block lying west of Centennial avenue and north of this street, between it and the defendant's railroad, was an alley which ran east to and ended at the west side of Centennial avenue. When therefore plaintiff slowed down in front of the schoolhouse and looked and listened as before stated, he was the length of this block, and the width of the street away from the railroad, making him perhaps 330 feet south of the crossing. He then proceeded at about 0 miles per hour toward the crossing, till he reached the mouth of the aforesaid alley, where he stopped and listened and looked northeast across toward the railroad, but the conditions heretofore shut off the view of an approaching train entirely. He heard no train however, saw no smoke, and says there was no bell or whistle sounded. He then proceeded at about the same rate of speed until he got on top of the dump or grade or bank south of and alongside the Y or switch track, and here he stopped again, and while on this bank he looked and listened for a train but did not see or hear any. At this point he was 3 or 4 feet south of and slightly above the Y track. The center of the latter was 8 to 10 feet south of the center of the main track, so that be was thus from 10 to 15 feet south of the main track and standing upon a ridge a little higher than the two tracks. The front of his car was closer than that, as it was a few feet ahead of him. He looked both east and west and listened, but did not see or hear any train, and says no bell was rung. While at this point the box...
