stances mentioned that the injury done to the plaintiff was the result of wilful negligence on the part of the defendant. For the foregoing reasons, I am of opinion that the judgment should be reversed, and the cause remanded for a new trial. Trespasser upon Track. See ante, Troy v. Cape Fear & Y. V. R. Co.; Virginia M. R. Co. v. White's Admr.; Galveston, H. & S. A. R. Co. v. Ryon; Nichols's Admr. v. Louisville & N. R. Co.; post, Guenther v. St. Louis, Í. M. & S. R. Co.; Schilling v. Chicago, M. & St. P. R. Co.; Houston v. Vicksburg, S. & P. R. Co.; Hughes v. Galveston, H. & S. A. R. Co.; Donnelly v. Brooklyn City R. Co. Injury to Deaf Mute. For a full discussion of the liabilities of a railroad company for injuries to a deaf person walking laterally along a railroad track, or endeavoring to cross it, see ante, Nichols's Admr. v. Louisville & N. R. Co., and note. GUENTHER ข. ST. LOUIS, IRON MOUNTAIN, & SOUTHERN R. Co. (Missouri Supreme Court, May 21, 1888.) Trespasser on Track - Personal Injuries- Contributory Negligence. In an action against a railroad company to recover damages for negligently killing plaintiff's husband, it appeared that deceased, a man of mature years, who passed the point on the track where he was struck, daily, going to his work, and who must have known that a train was due about that time, instead of walking between the two tracks, stepped in broad daylight upon one of the tracks, the view of which was unobstructed for several hundred yards, and continued to walk on it without looking or listening for an approaching train, or paying any attention whatever to his situation. Held, that deceased guilty of such negligence, contributing directly to his death, as would prevent a recovery, unless it appeared that after deceased had, by his negligence, exposed himself to peril, the defendant's servants became aware of his perilous position, or by the exercise of ordinary care might have discov ered it, in time to prevent injuring him, and thereafter, immediately before and up to the time of actual collision, failed to use such means as were within their power, with a proper degree of care, consistent with the safety of those on board the train, to avoid injuring him. was - Same-Failure to ring Bell. Although it should appear that the defendant's employees in charge of the train failed to ring the bell, and that the place where the accident occurred was frequented by people who were in the habit of using the track for the purpose of foot-travel, the company is not rendered liable thereby, if the accident was merely caused by the concurrent acts of the defendant's negligence in failing to ring the bell, and of the deceased's contributory negligence in being on the track without paying any heed to passing trains. APPEAL from St. Louis Circuit Court. Action by Elizabeth Guenther against the St. Louis, Iron Mountain, & Southern Railway Company to recover damages for negligently killing her husband. The opinion states the case. Bennett Pike for appellant. Leo Rassieur and Dexter Tiffany for respondent. BRACE, J. This is an action in which plaintiff seeks to recover damages for the alleged negligence of defendant in running its locomotive and cars over her husband, Jacob Guenther, and killing him. The answer of the defendant conFacts. tained a general denial and a plea of contributory negligence. The reply of plaintiff to the answer was a general denial. At the close of plaintiff's evidence in chief, a demurrer to the evidence was interposed, which being overruled, the defendant then introduced its evidence, and the case was submitted to the jury under the instructions of the court, a verdict rendered for the plaintiff, and from the judgment entered thereon the defendant, after an unsuccessful effort for a new trial, appeals, and assigns for error the refusal of the court to sustain the demurrer to the evidence, the admission of improper evidence for the plaintiff, the giving of improper instructions for the plaintiff, and refusing proper instructions for the defendant. The defendant is not in position to urge the overruling of the demurrer to the evidence as reversible error, having waived the same by putting in its own evidence; and the case will have to be examined and determined upon the whole evidence in the case. Bowen v. Railway Co. (decided at this term). It appears from the evidence, that about seven o'clock on the morning of the 13th of August, 1884, the deceased, while walking southwardly on the defendant's track, at a point within the limits of the city of St. Louis, about three miles south of the Union depot, was struck by the Carondelet accommodation-train running south; that he was thrown from the track, and died the same day; that the train was about on time, — perhaps a few minutes late, and running at the rate of from 15 to 20 miles an hour; that there is a plain and unobstructed view of the track for 500 yards or more north of the point where the collision took place. The evidence of the plaintiff tended to prove that on the train, while moving over this distance, no bell was rung, and no whistle sounded, till at the moment when Guenther was struck. The evidence of the defendant tended to show that the bell was being continually rung on the engine during the whole time the train was moving to the moment when deceased was struck. At the point of collision the defendant has two tracks on its roadbed, the eastern track used by trains going north; the western track, by trains going south. The deceased was struck on the western track. Between these two tracks there is a space from five to eight feet. The road-bed is located along the western bank of the Mississippi River; and in the bluff west of the road-bed, and adjacent to it, a number of quarries have for a number of years been operated. Between the roadbed and these quarries a dirt road, on the average about four feet lower than the railroad bed, has for a number of years been used by the quarry teams; and for a like period the workmen, in passing on foot to and from their work, as well as other pedestrians, used the road-bed, the walk there being level, and better than the dirt road below; and about seven o'clock in the morning it was customary to find quite a number of people passing along the road-bed at this point. Defendant's road-bed was constructed on a strip of land conveyed to it for a right of way in the year 1856, and originally sustained but one track. In 1859 the owners of the land over which the defendant's easement was granted, laid off that part of the tract lying west of the road-bed into lots and blocks divided by streets, and located on the plat a street 40 feet wide, running parallel with the west side of the railroad track, and filed and recorded a deed of dedication thereof to public uses. This street was afterwards recognized by the city on its plats, but was never improved or definitely located on the ground, so far as the evidence shows; nor was it built upon as a street, or used as such, except, as herein before stated, in connection with the dirt road mentioned and the defendant's road-bed. This street, thus laid off, was the terminus of the streets running east and west on the plat; none of them crossing it. About the year 1873 the defendant laid the second track on its road-bed; and there was evidence tending to show, that, in doing so, the western track was pushed west of its original location in some places along where the accident occurred, to make room for the eastern track: and it is contended for the plaintiff that the collision took place within the limits of this platted street; and by the defendant, within the limits of its right of way. The evidence on this subject is very vague and unsatisfactory; nor, in the view we take of this case, do we think it very important to determine which is right. The negligence, if any, of either plaintiff or defendant, is to be measured by the condition of things at the place where the accident took place, as they were known to exist by each of them at the time the acts of each are complained of as being negligent, and those acts cannot be affected one way or the other by the existence of a fact which could be determined only by an accurate survey; and neither of the parties would have been a whit more or less negligent if, on such survey, the true line of division between the road-bed and street should happen to fall on the one or the other side of the exact spot where the deceased was struck, or if it should turn out that the streetway and roadway lapped, and that that spot was both within the limits of defendant's right of way and also of the platted street. It further appeared from the evidence, that there was no public crossing at or near the place where Guenther was struck, and no improved streets within two or three blocks thereof. The evidence of the plaintiff failed to show the place at which the deceased entered upon the track, but tended to show that he had been walking between the rails on the western track, without looking back or paying any attention to the approach of trains from the north, for a distance of 75 or 100 yards; and that he was thus walking when the train that struck him was approaching him at a distance of 500 yards upon the road, and continued to do so until he was struck. The evidence of the defendant tended to show, that the deceased was walking in the space between the east and west tracks until the engine approached within 70 to 90 feet of him, when he stepped on the west track, and was almost immediately struck by the engine; that, as soon as he stepped on the track, every thing was done that could be done to stop the train, but it could not be stopped in time to prevent striking him; that the train, running at the rate of 15 miles an hour, could not be stopped in less than 180 to 190 feet. A con In view of the first instruction given by the court on its own motion, many of the objections urged to the action of the court in refusing instructions asked for in behalf of the defendant are obviated, as it is not perceived how, in the light of Instructions. that instruction, the refusal of the court to give them could have operated to the prejudice of defendant's case. sideration of instructions numbered 1, 2, 3, and 5, given by the court on its own motion, in connection with defendant's instruction No. 13, will be sufficient for the disposition of the case. Those instructions are as follows. Instructions given: "(1) The court instructs you that the deceased, Jacob Guenther, was guilty of negligence in failing to take ordinary care to notice the train that struck him. Hence your duty as jurors requires you to find. a verdict for defendant, unless you find the other facts relating to this case to be as set forth in instructions 2 or 3. (2) If the jury believe from the evidence, that, at the time of the accident, the place where the injury occurred to Jacob Guenther was a travelled public road or street, and had been used as a public road, highway, or thoroughfare for twenty years prior thereto, then the court declares the law to be, that it was the duty of the servants of the defendant to keep ringing the bell of the locomotive while the train was passing over said road or street, and for a distance of eighty rods before reaching the place of the accident; and if it appears from the evidence that no bell was rung while the locomotive was so passing over said street or road at the time of and immediately before the accident, then the jury may infer negligence or carelessness in the agents or employees of the defendant in the running and managing of said train; and if you further find from the evidence, that the death of said. Jacob Guenther was directly occasioned by or directly resulted from said omission to so sound the bell as aforesaid, then you should return a verdict for the plaintiff. (3) If you find from the evidence that said train of defendant that struck deceased. could have been stopped by the employees of the defendant in charge of said train, by the exercise of ordinary care on their part, in time to have prevented his injury after they (said employees) became aware, or might have become aware by the exercise of ordinary care, of his imminent peril of being struck by said train, then you should return a verdict for the plaintiff. (5) If you find, in view of the other instructions, that the place where Guenther was killed was not a part of the public street, or that defendants were not guilty of any such negligence as is described in instruction No. 2 (under the law as stated therein), and further find that the agents of defendant in charge of said train exercised ordinary care in the management of said train, and did all they reasonably could, in the circumstances, to stop the train, and avoid the injury to deceased (Guenther), then you should return a verdict for defendant." Defendant's instruction, refused: "(13) If the jury find from the evidence that the deceased, Jacob Guenther, stepped upon the western track of the defendant's railway, just before the accident, in front of a passenger-train approaching thereon from the north, and that he could have seen or heard said train if he had looked or listened, and that he went on said track without looking or listening for the same, and was struck by said train, then the verdict should be for the defendant, unless the jury further find from the evidence that said train could have been stopped by the employees of defendant in charge of said train, by the exercise of ordinary care and prudence, in time to prevent the injury, after they became aware, or might have become aware by the exercise of ordinary care, of the peril of said deceased while on said track." The evidence fails to show that the deceased was struck at or near the crossing of any travelled public road or street, or that any such public crossing was within such a distance as to Failure to ring require that the bell on the engine should have been bell. Dekept ringing, under the statute, as it approached the ceased's conPlace where deceased was struck; and while the negligence. failure to ring the bell when a train is passing Liability notlongitudinally along a public street, except on ap- withstanding. proaching a public crossing, and within the distance of 80 rods tributory |