Opinion
March 31, 1931.
1. NEGLIGENCE: Automobile Traveler: Failure to Look. The failure of the automobile traveler, as he was crossing the railroad at one crossing, to look down the railroad track toward another crossing 447 feet away, where his car was struck by an approaching train, cannot be held to be contributory negligence as a matter of law, where he testifies that he failed to look because he thought the train, twenty-seven minutes late, had already passed, and because he was giving attention to a horse-drawn wagon, behind which was fastened a cultivator, which he thought might collide with his car as he traveled over the crossing, and because the driver of the wagon, after having stopped on the other side of the crossing, proceeded to drive across, which led him to conclude no train was approaching.
2. ____: ____: ____: Failure of Engineer and Fireman to See. It cannot be held as a matter of law that the driver of a truck was guilty of contributory negligence in failing to look down the track at one crossing for an approaching train which a few minutes later struck his truck at another crossing 447 feet closer to the train, where neither the engineer nor the fireman, who were in their seats, saw his truck on the crossing, for if they did not see his truck the natural inference is that he would not have seen the train had he looked.
3. ____: ____: Failure to Stop and Listen. It cannot be held that the driver of a motor truck was guilty of contributory negligence as a matter of law in failing to stop before driving upon the regular railroad crossing that he might effectively listen for the noise of an approaching train, where the train was twenty-seven minutes late, its steam had been shut off, the track was obstructed, the highway was sandy, the automobile was making only the usual noise, and he testifies that as he approached the crossing he looked over the tops of the obstructing cars for smoke from an engine and saw none, and listened for the noise of a train and warning signals and heard none.
4. ____: Storing Cars on Sidetrack: Independent Ground of Recovery. The mere storing of cars on the sidetrack of a railroad and thereby obstructing the view and hearing of an automobile traveler at a public crossing cannot be an independent ground of recovery, for the railroad company has the right in the course of its business to so store them.
5. ____: ____: ____: Instruction. In an action to recover for injury to a motor truck and for personal injuries received by the driver in a collision of the truck with a railroad engine at a public crossing, wherein he alleges that defendant negligently stored cars on its sidetrack, one of which occupied a part of the highway, thereby obstructing his view of the approaching train and preventing him from hearing the noise of said train and thereby preventing the engineer and fireman from seeing him approaching said crossing, and wherein the evidence shows that twenty-three cars were stored on a sidetrack within eight feet of the main track on which the train was approaching, some of them on one side of the crossing and the rest on the other side, and that one of them extended fourteen feet into the highway, and that these cars obstructed the view of one driving in an automobile until its front wheels were within twenty-two inches of the rail of the main track, it is error to give an instruction for plaintiff telling the jury that "if you believe from the evidence that defendant negligently permitted obstructions consisting of box cars to be placed and remain upon its passing track on the side of the crossing where the collision occurred, so as to obstruct the view of plaintiff in approaching said crossing, and if you believe such acts constitute negligence upon the part of defendant, and that they were the proximate cause of plaintiff's injuries, and that plaintiff did not by his own negligence contribute to his injury, then you will find your verdict for plaintiff." The instruction is not directed against a car extending into the highway, nor against the obstruction of the view by cars stored so near the crossing that a traveler while in the exercise of ordinary care could not learn of an approaching train in time to avoid a collision; it in effect tells the jury that to store cars on a sidetrack at a crossing in such manner as to obstruct the view of an approaching traveler is of itself a negligent act.
6. NEGLIGENCE: Storing Cars on Highway. It is negligence in a railroad company to store a car by extending it fourteen and a half feet into a highway at a public crossing. And where the driver of a motor truck approached the crossing at a speed of five or six miles an hour, and reduced the speed as he ascended the slight embankment to the tracks, it becomes a question for the jury to determine whether if the car had not extended into the highway his view might have afforded him an opportunity to avoid a collision with the approaching train.
7. ____: Cars Stored Near Crossing: Reserved Question. The right of a railroad company to obstruct the view of a traveler on a highway by cars stored so near the crossing that the traveler while in the exercise of ordinary care could not learn of an approaching train in time to avoid a collision, is not presented for review by the record in this case, and for that reason the question is reserved.
8. ____: Obstructed Crossing: Warning Signals: Increased Hazard: Ordinary Care: Higher Care. The duty of the operators of a railroad train approaching an obstructed public crossing to give warning signals, increases as the danger to travelers on the crossing highway increases. The statutory signal is the minimum requirement. If the railroad company by obstructions to view and hearing makes the crossing more hazardous, it is both its duty and the duty of the traveler on the highway to use such care on approaching the crossing as is commensurate with the increased hazard occasioned by the obstruction, and the care made necessary by the increased hazard is only ordinary care, and not a "higher" degree of care. [Overruling any contrary ruling in Porter v. Mo. Pac. Ry. Co., 199 Mo. 82, and other cases, if any such there be.]
Appeal from Butler Circuit Court. — Hon. Charles L. Ferguson, Judge.
REVERSED AND REMANDED.
E.T. Miller and Ward Reeves for appellant.
(1) The plaintiff did not make a case for the jury and the defendant's demurrer at the close of the whole case should have been given. (a) We concede that the evidence tends to show that no alarm of the whistle or bell was given, but we insist that plaintiff's contributory negligence nevertheless defeats his recovery. Grossman v. Well, 282 S.W. (Mo. Sup.) 713; Gubernick v. Rys. Co., 217 S.W. (Mo. Sup.) 33; Nunn v. Railroad, 258 S.W. (Mo. App.) 20; Tannehill v. Railroad, 279 Mo. 158; Sullivan v. Railroad, 317 Mo. 996. (b) There was an unobstructed view for at least twenty or twenty-five feet at the north crossing, although the plaintiff did not look for a train, which could then have been seen for a distance of over a mile. After making the first crossing there were obstructions to view until the second crossing was reached and the plaintiff had exact and accurate knowledge of all these obstructions at the time and knew that he could not see the train approaching the second crossing in time to stop his automobile after passing the box cars. He did not change his speed or stop his car between the two crossings and it was making the usual noises of such a Ford car. Under these circumstances the plaintiff was guilty of such contributory negligence as prevents him from recovering. Monroe v. Railroad, 297 Mo. 633; Central Coal Co. v. Ry., 215 S.W. (Mo. App.) 914; Dickey v. Railroad, 251 S.W. (Mo. App.) 112; State v. Bland, 237 S.W. (Mo. Sup.) 1018; Henderson v. Railroad, 248 S.W. (Mo. App.) 987. (c) The evidence is uncontradicted that from the north crossing to the south crossing plaintiff traveled 600 feet, did not shift his gears and did not change his speed and was running at the rate of six miles per hour, and that the train was not running to exceed 30 or 35 miles an hour for a distance of a mile before reaching the south crossing. The distance from the south crossing to the north crossing was 447 feet. Plaintiff's own evidence shows that if he had looked where he had an unobstructed view at the north crossing he could have seen the train for more than a mile on this clear, bright, fogless and smokeless evening. According to his own testimony this unobstructed view was the last he was to have, or did have, before going on the railroad track at the south crossing immediately in front of the train. The evidence clearly shows that the plaintiff did not look at the north crossing, but if he did look he negligently looked, because the physical facts show that he would have seen the train if he had carefully looked. To say that he looked and did not see is to contradict the conceded physical facts, and such testimony should not be given credence. Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 569; Sexton v. St. Ry. Co., 245 Mo. 254; Aldridge v. Railroad, 215 Mo. App. 230; Roseman v. Rys. Co., 251 S.W. (Mo. App.) 106; Sanguinette v. Railroad, 196 Mo. 494; Clark v. Railroad, 242 Mo. 605. (d) Plaintiff did not exercise ordinary care for his own safety. It was his imperative duty to stop his automobile in order to listen effectively for the approach of the train before going upon the south crossing where he was struck by the train. Monroe v. Railroad, 280 Mo. 490; Campbell v. Railroad, 175 Mo. 173; Brice v. Payne, 263 S.W. (Mo. App.) 1007; State v. Bland, 237 S.W. (Mo. Sup.) 1019; Monroe v. Railroad, 297 Mo. 653; Underwood v. Railroad, 190 Mo. App. 414; DeRousse v. West, 198 Mo. App. 293; Central Coal Co. v. Railroad, 215 S.W. (Mo. App.) 914. (e) The plaintiff cannot justify or excuse his own heedlessness and negligence by a reliance upon the presumption that the statutory warnings would be given. Underwood v. Railroad, 182 Mo. App. 252; Langley v. Hines, 207 Mo. App. 587; Lyter v. Hines, 224 S.W. (Mo. App.) 837; Nichols v. Railroad, 250 S.W. (Mo. App.) 628; Dempsey v. Traction Co., 240 S.W. (Mo. App.) 1093. (2) Plaintiff's Instruction No. 1 submitted to the jury as a ground of recovery and directed a verdict for plaintiff if the jury believed that the defendant negligently permitted obstructions consisting of box cars and cattle cars to be placed and remain upon its passing track so as to obstruct the view of plaintiff in approaching the crossing, provided the jury further found that such negligence was the proximate cause of plaintiff's injuries. This instruction directed a verdict for the plaintiff, irrespective of whether or not the statutory signals were given as the train approached the crossing. The evidence admits that the end of the box car was from eight to twelve feet from the traveled portion of the highway and it in no way actually obstructed the travel on the highway. Plaintiff knew of its location and carefully observed it as an obstruction to his view as he approached the crossing. We concede that if the plaintiff was entitled to go to the jury the fact that the box car was so near the traveled road as to prevent one from seeing the approach of the train until the automobile was on or near the track that it could not be stopped, that such fact was for the consideration of the jury in passing upon the contributory negligence of the plaintiff. The plaintiff had seen the box car before and was well aware of its location and he saw and was paying close attention to this obstruction as he approached the crossing. The mere fact that the box car was so located could not afford a basis of recovery in this case, uncoupled and disconnected with the manner of operation of the train. The trial court also erred in this connection in refusing defendant's Instruction No. C withdrawing this matter as an independent ground of recovery in this case. Spain v. Railroad, 190 S.W. (Mo. App.) 358; Fife v. Railroad, 174 Mo. App. 655; Porter v. Railroad, 199 Mo. 82. (3) Plaintiff's Instruction No. 2 was erroneous. That instruction was misleading to the jury and was calculated to lead the jury to believe that the operators of the train owed the plaintiff a greater degree of care than ordinary care. The defendant did not owe the plaintiff any more duty or care than to either sound the whistle at intervals or to continuously ring the bell from a distance of 80 rods from the crossing until the crossing was reached. But under this instruction the jury were in effect told that in addition to giving these warnings the degree of care required of the operators of the train was increased according to the liability or danger at this obstructed crossing. Central Coal Co. v. Railroad, 215 S.W. (Mo. App.) 919; Porter v. Railroad, 199 Mo. 82.
Charles T. Bloodworth and Sam M. Phillips for respondent.
(1) The following are cases similar to the instant case and in which the injured parties were held not guilty of contributory negligence as a matter of law, and the various plaintiffs entitled to recover. Weigman v. Ry. Co., 223 Mo. 699; Clay v. Ry. Co., 5 S.W.2d 409; Pierson v. Railroad, 275 S.W. 561; Roques v. Railroad, 264 S.W. 474; Toeneboehn v. Frisco, 298 S.W. 802; Dobson v. Frisco, 10 S.W.2d 531; McKerall v. Frisco, 257 S.W. 166; Jackson v. Ry., 189 S.W. 381; Kenney v. Railroad, 105 Mo. 277; State ex rel. v. Trimble, 254 S.W. 846; Dutton v. K.C., etc., Assn., 292 S.W. 718; Hoff v. Wabash, 254 S.W. 874; Jones v. Frisco, 220 S.W. 484; Monroe v. Railroad Co., 219 S.W. 70; Shaffer v. Rock Island, 254 S.W. 260; Brown v. Same, 252 S.W. 55; San Antonio, etc., Co. v. Schoeffer, 194 S.W. (Tex.) 684. (a) Where a traveler knows that it is not the usual train time and does not hear customary signals he is not negligent, as a matter of law, in going upon the track without looking. Cahill v. Railroad, 92 Ky. 345, 18 S.W. 2. (b) The same rule applies when the train is running behind time. 33 Cyc. 1010, n. 29; Toledo, etc., Ry. v. Jones, 76 Ill. 311; Cincinnati etc. Co. v. Howard, 124 Ind. 280; Tucker v. Ry., 122 Mich. 149; Salter v. Ky., 75 N.Y. 273; Howard v. Ry., 1 N.Y.S. 528. (c) As plaintiff drove his automobile across the upper crossing his attention was attracted and engrossed by the cultivator that was tied on the back of Adam Hawk's wagon, and which plaintiff thought might strike his automobile. This fact is a proper matter to be taken into consideration on the question of plaintiff's contributory negligence and would justify the jury in finding for plaintiff on this point. 33 Cyc. 1014; n. 51-55; 33 Cyc. 1121, n. 17; Dutton v. Terminal Assn., 292 S.W. 718; Ruenzi v. Payne, 231 S.W. 294; Curlin v. Co., 232 S.W. 215; McDaniel v. Hines, 292 Mo. 401. (d) Plaintiff's failure to stop before driving over the Buncomb crossing, was not, of itself, negligence. Shaffer v. Railroad, 300 Mo. 477, 263 U.S. 687, 68 L.Ed. 507; Monroe v. Chicago Alton, 297 Mo. 633, 249 S.W. 649; Brown v. Chicago, R.I. Pac., 252 S.W. 56; Monroe v. Chicago Alton, 280 Mo. 483, 219 S.W. 68; Swigart v. Lusk, 196 Mo. App. 471, 192 S.W. 138; Donohue v. Railroad, 91 Mo. 357; Killingsworth v. Railroad, 209 S.W. 304; Kenney v. Railroad, 105 Mo. 288; Pierson v. Railroad, 275 S.W. 262. Generally stopping is not essential unless both seeing and hearing are ineffectual without doing so. Berry on Automobiles, (6 Ed.) 725, n. 84; Swigart v. Lusk, 196 Mo. App. 471, 192 S.W. 138. If plaintiff had stopped to look he could have seen no more because twenty-three box cars obscured his vision in the direction from which the train was coming. The plaintiff did not have to stop his car, get out, walk up to the track and look both ways. State ex rel. v. Trimble, 254 S.W. 850; McKerall v. Frisco, 257 S.W. 169. (2) The negligence of the defendant in leaving a string of twenty-three box cars standing on its sidetrack, one of which extended fourteen and one-half feet out into the right-of-way of the dirt road and obscuring the view of an approaching train until plaintiff's car would be in a position of being struck by the train, was the proximate cause of plaintiff's injury. Lindman v. Kansas City, 271 S.W. 516, 308 Mo. 161; Daneschocky v. Sieben, 193 S.W. 967, 195 Mo. App. 470; Shafir v. Sieben, 233 S.W. 419, 17 A.L.R. 637; Shafir v. Carroll, 274 S.W. 755; Strother v. Sieben, 282 S.W. 502; Adelman v. Altman, 240 S.W. 272; Strother v. Carrol, 287 S.W. 310; Adelman v. Altman, 285 Mo. 503, 226 S.W. 953; Strother v. Kansas City, 296 S.W. 795, 316 Mo. 1067.
Action to recover for injury to automobile and for personal injuries sustained by plaintiff in a collision of his automobile with an engine of defendant at "Buncomb Crossing" in Naylor, Ripley County, Mo. It is alleged in the petition that defendant negligently failed to give statutory warning of the approaching train. It is also alleged that defendant negligently stored cars on its sidetrack, with a car occupying a part of the highway, thereby obstructing plaintiff's view of the approaching train and preventing him from hearing the noise of said train and thereby preventing the engineer and fireman from seeing plaintiff approaching the crossing. It is also alleged that defendant negligently ran the train, while hidden by the cars on the sidetrack, at a dangerous speed, and that as a direct result of defendant's negligence, plaintiff was injured.
The answer was a general denial, with pleas that the injury was due solely to negligence of plaintiff and that he was guilty of contributory negligence.
Trial was had as if the reply was a general denial. The issues of failure to give statutory warning and storing cars on the sidetrack were submitted to the jury. Judgment for $10,000, and defendant appealed. It contends plaintiff was guilty of contributory negligence as a matter of law.
There is evidence tending to show the following: In the vicinity the railroad runs northeast and southwest. The sandy highway proceeding northwardly from the town of Naylor crosses the railroad at the "North Crossing," which is 447 feet by rail and 600 feet by highway northeast of "Buncomb Crossing," where the collision occurred. After the highway crosses the railroad at "North Crossing" it proceeds northwardly 150 feet, where it curves and proceeds south to "Buncomb Crossing" in the southwest part of Naylor. In other words, the highway crosses the railroad twice in this vicinity. A parallel sidetrack extends from northeast of the "North Crossing" to a point some distance southwest of "Buncomb Crossing." The view of the railroad to the southwest of one traveling northwardly from Naylor to the "North Crossing" was obstructed, and especially by a pile of ties just southeast of the highway and within eight feet of the main track. On the southwest side of this crossing and just northwest of the sidetrack are two large oil tanks, the oil company's office, railroad stock pens and another pile of ties. In addition there were nine cars standing on the sidetrack just northeast of "Buncomb Crossing" and twenty-three cars on the sidetrack southwest of the crossing, with the north car of the twenty-three cars extending fourteen and one-half feet into the highway. The cars to the southwest of "Buncomb Crossing" obstructed the view of one driving an automobile on the highway from the north until the front wheels of the automobile were within twenty-two inches of the north rail of the main track at this crossing.
This was not a trunk line. Only two passenger trains and a few freight trains were scheduled for a day. Plaintiff resided on a farm three miles west of Naylor, was familiar with the schedule time of the passenger trains, the obstructions near the crossings and the location of the cars standing on the sidetrack for some days. On June 6, 1927, at about 6:35 P.M. plaintiff, on his way home from Naylor, drove northwardly in his Ford truck, loaded with baby chickens, over the highway toward the "North Crossing." As he approached the crossing Adam Hawks and son were also approaching it from the opposite direction in a horse-drawn wagon, behind which was fastened a cultivator as a trailer. Plaintiff stopped when the horses were on the track and listened, but heard no train. He also looked to the southwest, but the ties obstructed his view. He then, while the horses were moving over the tracks, proceeded over the crossing. While traveling about twenty-five feet over the crossing, he had an unobstructed view of the railroad, and could have seen an approaching train from the southwest from the time it reached a point about a mile from the "North Crossing." He testified that he did not look in this direction at that time, for the reason he was giving attention to the cultivator, which he thought might collide with his car as he traveled over this unobstructed part of the crossing. After crossing the "North Crossing" plaintiff proceeded northwardly and around the curve of the highway and then south to "Buncomb Crossing." Approaching this crossing he could not see a train from the southwest on account of the twenty-three cars on the sidetrack. He looked over the top of the cars for smoke from an engine, but saw none. He listened for the noise of a train and warning signals, but heard none. Thereupon he drove slowly on the crossing and the collision occurred. On account of the baby chickens he traveled from Naylor to "Buncomb Crossing" at a speed of only five or six miles an hour. At the time of the collision the train was twenty-seven minutes late and running thirty miles an hour. However, steam had been shut off as the train approached the crossing and it may have been moving at greater speed. The fireman saw the automobile as it emerged from behind the standing cars. The front of the engine obstructed the view of the engineer and he did not see the automobile until the moment of the collision.
I. Defendant contends the failure of plaintiff to look for an approaching train while crossing the tracks of the "North Crossing" was contributory negligence as a matter Contributory of law. The contention rests on the statement of Negligence. plaintiff on cross-examination that "he failed to look because he thought the train had passed." He was cross-examined at length with reference to his failure to look through the open space to the southwest for an approaching train while he was traveling over the tracks of this crossing. During the examination he also testified that Hawk stopped on the other side of the crossing, which caused him to think a train might be approaching. However, when Hawk proceeded to drive the team over the crossing, he concluded no train was approaching. He also testified that as he traveled over the tracks his attention was given to the movements of the cultivator.
Thus it appears the statement that "he failed to look because he thought the train had passed" does not stand alone. In ruling the demurrer all of his testimony on the question should be considered. When so considered it cannot be held that his failure to look at the time and place was negligence as a matter of law. Moreover, neither the engineer nor fireman testified they saw plaintiff's truck moving over the "North Crossing." If plaintiff, by looking to the southwest as he drove over this crossing, could have seen the train, it follows the engineer and fireman who were in their seats could have seen the truck at the crossing. Taking the speed of the train and automobile as given and the distance traveled by plaintiff from the "North Crossing" to "Buncomb Crossing" as given, the train could have been seen by plaintiff from the "North Crossing." But these speeds and distances were estimates and a jury might believe from the failure of the engineer and fireman to testify on the question that the train was around the curve southwest of the crossings and could not have been seen by plaintiff from the "North Crossing."
II. Defendant next contends the failure of plaintiff to stop before driving on "Buncomb Crossing" that he might Failure to effectively listen for the noise of an approaching Stop. train was contributory negligence as a matter of law.
The highway was sandy, the automobile making only the usual noise and plaintiff as he approached the crossing could hear the baby chickens "peep." Clearly, he was not for this reason guilty of negligence as a matter of law.
At the request of plaintiff, the court instructed the jury as follows:
"The court instructs the jury that if you believe from the evidence that defendant negligently permitted obstructions consisting of box cars and cattle cars, if you Storing Cars find that they were such obstructions, to be on Sidetrack. placed and remain upon its passing track on the south side of the crossing where the collision occurred, so as to obstruct the view of plaintiff in approaching said crossing, and if you believe such acts, if any, constitute negligence upon the part of the defendant, and that they were the proximate cause of plaintiff's injuries, if any, and that plaintiff did not by his own negligence contribute to his injury, then you will find your verdict for the plaintiff."
Defendant challenges the instruction. It contends it had the right to store cars on its sidetracks: that having said right it would not be negligence to do so; that the instruction is without authority in this State; that it is in conflict with the general rule in other jurisdictions and that it could not be a ground for recovery.
It will be noted that the instruction is neither directed against the car extending into the highway, nor the obstruction of the view by cars stored so near the crossing that a traveler while in the exercise of ordinary care could not learn of an approaching train in time to avoid a collision. It deals solely with the question of storing cars on the south side of the crossing.
The mere storing of cars on the sidetrack and thereby obstructing the view and hearing of plaintiff could not be an independent ground of recovery for the defendant had the right in the course of its business to do so. The rule is stated in Bruggeman v. Illinois Cent. Railroad Co., 134 N.W. (Ia.) 1079, l.c. 1080, as follows:
"That the placing of freight cars upon a sidetrack so as to obstruct the view of a crossing would not be deemed as an independent ground of negligence is too plain to require argument. The authorities are practically uniform on this question." [22 R.C.L. 994, 995; M.K. T. Ry. Co. v. Perino, 47 A.L.R. 283, 287 (note).]
Plaintiff states the instruction was taken from Galveston H. S.A. Ry. Co. v. Michalke, 37 S.W. (Tex.) 480, 14 Tex. Civ. App. 495 . This case was overruled in Galveston H. S.A. Ry. Co. v. Harris, 53 S.W. (Tex.) 599, l.c. 601. The instruction was erroneous and prejudicial.
At the request of plaintiff, the court also instructed the jury as follows:
"The court instructs the jury that it was the duty of the defendant in the movement of its trains along its tracks across the public highway in question, to exercise reasonable care and diligence to warn travelers upon said highway Warning Signals: of the approach of its trains, in order to Ordinary Care. prevent accidents at such crossing, and if there were obstructions along and on said crossing which prevented a train of cars from being seen as a traveler upon the highway approached the crossing, the degree of care required is increased according to the liability or danger at such crossing; both the traveler and the company are charged with a higher degree of care under such circumstances, than they otherwise would be, the one to avoid being injured and the other to avoid inflicting an injury."
Defendant also challenges this instruction. It contends that the operators of the train on approaching the crossing were only required to give the statutory signal. Whereas, the instruction increased the care required according to the danger of a collision at the crossing. It also contends that only ordinary care was required of it on approaching the crossing, whereas, the instruction required more than ordinary care.
The statutory signal is the minimum requirement. If defendant by obstructions to view and hearing made the crossing more hazardous, it was the duty of both plaintiff and defendant to use such care on approaching the crossing as was commensurate with the increased hazard occasioned by the obstruction. Of course, this would be ordinary care. The great weight of authority sustains this view. [Stepp v. Ry. Co., 85 Mo. 229, 235; Moberly v. Ry. Co., 17 Mo. App. 518, 540; Louisville N. Railroad Co. v. Locker's Admrs., 206 S.W. 780, 781; Danskin, Admrx., v. Railroad Co., 22 L.R.A. (N.S.) 232, note, 233, 234.] Any statement to the contrary in Porter v. Mo. Pac. Ry. Co., 199 Mo. 82, and other cases, if any, are on this question overruled. However, a higher degree of care was not required of parties, but to be in the exercise of ordinary care under such circumstances they must on approaching the crossing increase the care commensurate with the hazard of passing over the crossing. The instruction should not have required of the parties a higher degree of care.
We next consider the act of defendant in storing the north car of the line of twenty-three cars on the southwest side of the crossing fourteen and one-half feet into the highway. This was negligence [Close v. Lake Shore M.S. Ry. Co., 41 Storing Cars N.W. (Mich.) 828, l.c. 830; Harvey v. Ill. Cent. in Highway. Railroad Co., 167 S.W. (Ky.) 875, l.c. 877.] As stated, plaintiff traveled at five or six miles an hour from Naylor to this crossing. When he proceeded to ascend the slight embankment to the tracks he reduced the speed. Now if this car had not extended into the highway, the wider view open to plaintiff as he neared the main track might have afforded him an opportunity to stop in time to have avoided the collision. We think this question would be for the determination of the jury.
The right to obstruct the view of a traveler on a highway by cars stored so near the crossing that the traveler while in the exercise of ordinary care could not learn of an approaching train in time to avoid a collision is not presented by Storing Cars the record for review. Therefore, we reserve the Near Highway. question Other assignments of error are without merit, or may not appear in the record of another trial.
It follows the judgment should be reversed and the cause remanded. It is so ordered. All concur.