Hunt v. C. B. & Q. Railroad Co. the cab in his engine when he first saw Hunt, about two hundred feet away, standing in the middle of the track, trying to get his motor car off the track. The curve in the track, and the projecting boiler on the engine, prevented him from seeing the man earlier than he did. Hunt had the car partly off over the east rail. He had hold of the end of it, and was apparently trying to push it over the rail. When witness first saw Hunt, he shut off the speed. sounded several short blasts, got hold of the brakevalve, and threw the break on, as far as he could. There was nothing more he could do to stop the train. He did not see the engine strike Hunt, the boiler shut off his view. But he saw a hat fly across the track. Cross-examination: There is a very sharp curve there to the left. You cannot see very far around that curve. When I first saw him, the man was on the curve and I was on the point of the curve. I ran five or six hundred feet after I hit him. This sharp curve, with the woods, would keep a man, whichever side of the engine he was on, from seeing a man very far ahead of him. When I first saw him the man was about a hundred and fifty feet away from me, possibly two hundred. Could then see the man until within about twenty feet of him, when the boiler obstructed my view. Plaintiff's rebuttal evidence was as follows: Fred Hall testified: That he made measurements, observations and experiments on the track where the injury happened from positions corresponding to those occupied by the engineer in his cab. That one hundred and fifty feet north of the take-off, he could not see a person in the center of the track, near the take-off, and the nearest point, at which he could see the track south of there, was between four and five hundred feet south of the take-off. At points three hundred, four hundred, five hundred, six hundred and eight hundred feet north of the take-off, he could not see a man on any part of the track at the takeoff or anywhere near it. The court refused a demurrer to the evidence, offered by the defendant at the close of the testimony, and also Hunt v. C. B. & Q. Railroad Co. refused certain instructions asked by the defendant, and gave certain instructions for the plaintiff, which will be noticed in the opinion hereafter. I. It is well settled that the enginemen, or others in charge of operating trains, are not required to look out for sectionmen, which would include signal-repair men, while working on or near the track, and are, Warning. therefore, not guilty of negligence in failing to ring the bell, or sound the whistle, or otherwise warn them of the approach of trains, unless required to do so by some established rule or custom. [Kirkland v. Bixby, 222 S. W. (Mo.) 462; Nivert v. Railroad, 232 Mo. 641; Rigley v. Prior, 233 S. W. (Mo.) 828; Dixon v. Railroad, 109 Mo. 413; Woods v. Railroad, 187 S. W. (Mo.) 11, and cases cited.] II. In the case we have in hand, the petition pleaded that there was a rule or custom requiring defendant's servants in charge of its engine and trains, to sound the whistle before passing around curves, where the Exception. view is obscure, for the purpose of warning employees on the track, of the approach of trains. That Hunt was killed on such a curve, by the negligence of the enginemen, to observe said rule, and in failing to sound such whistle, in passing around such curve. Consequently this case, as made by the petition, is based upon the exception to the general rule, mentioned in the preceding paragraph, as well as upon the humanity doctrine. to Motor Cars. III. We think, under the rules of defendant, introduced in evidence, considered and construed together, it was the duty of the enginemen, under Rule Rules: Applicable 920, to sound the road-crossing whistle at obscure curves, between the hours of 6:30 A. M. and 6:30 P. M., before passing around such curves, and the duty of the men on the track, under Rules 909 and 47 and 213, to exercise due care for their own protection and not rely on others to warn them of the approach of trains, and those using hand or motor cars, in places Hunt v. C. B. & Q. Railroad Co. where the view of the track was obscured, were required to protect themselves with proper signals, when neces sary. Whether defendant should have pleaded rules introduced by it under the Kirkland Case, supra, is not before us, as they were read in evidence without objection, and are not objected to in respondent's brief here. Appellant does not apparently deny that said Rule 920 applies to section and trackmen, without hand or motor-cars, but says it does not apply to signal-repair men or other employees, with hand or motor cars, because said Rule 47 expressly requires employees, with such cars, to protect themselves, and where the view of the track is obscured with proper signals, when necessary. We do not agree to this contention. The rules should all be construed together and given a harmonious and not a contradictory effect, if reasonably possible, to carry out the intention of such rules as a body intended for the guidance and safety of the employees of the railroad company. We think Rule 920 applies both to sectionmen and signalmen, both of whom use track-motors or hand-cars in their work, when and whether they are using such cars or not. That said Rule 920 was intended to apply to all such employees in danger of being injured, while upon such curves, where the view is obscure, and which, the evidence shows, were quite numerous upon defendant's track, is plain, from the provision that a crossing whistle must be sounded before passing around such curves, between 6:30 A. M. and 6:30 P. M., the time such employees are usually engaged in their work on the tracks. Self-Reliance. But, it is said that Rule 909 expressly provides that such employees must not rely on others, to warn them of the approach of an engine or train, and, therefore, it was not negligence, as to such employees, for the enginemen to fail to sound the crossing whistle at curves, as required by Rule 920. Such a construction would nullify Rule 920, and make it ineffective, for the purpose of protecting all employees on the track, which its humane provisions were evidently intended to. Hunt v. C. B. & Q. Railroad Co. do. We think a reasonable construction of Rule 909, would be that men on the track must not themselves be guilty of negligence by relying on the enginemen to protect them, as required by Rule 920, but must also exercise proper care for their own safety. But, in view of the evidence danger, not only to the employees of the railroad company, but to the passengers also, whether such employees, on the track, could rely on such whistle being sounded or not, did not make it less the duty of the enginemen to comply with said Rule 920, and their failure to do so was evidence of negligence, for which defendant was responsible to all persons injured thereby, including track employees. We rule this point against appellant. IV. But, it is urged that even if the enginemen were guilty of negligence, as to the deceased, in failing to blow the whistle, so as to warn him of the approach Demurrer to of the train, there is no evidence that such negligence caused or contributed to his injury and death. We must overrule this contention. Evidence. The defendant's evidence shows that the deceased was off his motor car, standing between the rails, trying to push his car off the track, when the engineer first saw him, two hundred feet away. Under such circumstances, it was for the jury to say, if the crossing whistle had been sounded, before the engine passed around the curve, which was about eight hundred or a thousand feet long, as required by Rule 920, whether the deceased would not have been made aware of the approach of the train, in ample time to have taken a step or two, which was all that was necessary to avoid being injured thereby. In Dixon v. Railroad, 109 Mo. 1. c. 429, this court said: "There was abundant direct evidence of the omission of the enginemen to sound the whistle signal as the train came around this obscure curve. Defendant's rule and custom required such a signal, and the failure to give it was evidence of negligence on defendant's part in managing the locomotive. If that omission should be found, as a fact, to have caused the death of Dixon [a quarry laborer on Hunt v. C. B. & Q. Railroad Co. the track] we cannot properly say that such finding would be an unreasonable inference from the evidence." V. But it is said, plaintiff's evidence shows that the deceased could have seen the approaching train for eight hundred or a thousand feet, had he been lookProximate ing north, in the direction of the train, which it was his duty to do, and his failure to do so, or negligently remaining on the track, after seeing the train, was the sole proximate cause of his death. Cause. It is not contended that the contributory negligence, if any, of the deceased, would bar the plaintiff's cause of action, given by the Federal statute, under which the suit is brought. But it is correctly assumed that such negligence of the deceased would have to be the sole proximate cause of his death, to defeat the action of plaintiff. Plaintiff's evidence, from which alone the conduct of the deceased, as a matter of law, must be determined, does not show whether he was going north or south, when he stopped his car, before the collision. No one saw him, just prior to his injury, until he was seen by the engineer of the train, who said that Hunt was then standing about two hundred feet away in the middle of the track endeavoring to push his car over the rails. The engineer does not say whether Hunt, when he saw him, was looking, or facing north towards the train, or was looking or facing south, with his back to the train. The engineer does not seem to have been interrogated on this point. There is nothing in the engineer's testimony showing. that Hunt was aware of the approach of the train. From all that appears in the evidence, Hunt may at and before he stopped his motor car, and alighted therefrom, or even afterwards, have looked both ways, first looking north, without seeing the train, because it was hid from his vision by the curve in the track, and then looked south, at which moment, the train, going at fifty miles an hour, emerged from behind the bend in the track, and ran the eight hundred or thousand feet, it had to run, to reach |