Masterson v. Chicago, Rock Island & Pacific Railway Co.

Smith, P. J.

This case was here on another occasion, 49 Mo. App. 6 . The evidence then disclosed is in its essential features the same as that contained in the present record. We there ruled that the evidence was sufficient to entitle the plaintiff to go to the jury *575 and .so reversed the judgment and remanded the cause. It appears that the case has been retried and that plaintiff has obtained a verdict in his favor. The defendant by its appeal seeks a reversal of the judgment given on that verdict, mainly on the ground that the trial court erred in its action refusing an instruction asked by it in the nature of a demurrer to the evidence.

And since the evidence in the record in the ease then does not substantially differ from that in the present case the ruling there made is in its nature res acljudicata and therefore conclusive on us. It is a little singular that-the plaintiff instead of calling our attention in his brief to th¿t precedent in order to uphold his judgment has contented himself with citing other cases which beseems to have deemed more pertinent.

As to the defendant’s further contention that the second instruction asked by the defendant and refused by the court to the effect that under the circumstances of the case it was the duty of the plaintiff before driving on the main track to stop his horses and look and listen for the train is not well taken. This instruction was properly refused. It was not the absolute diity of a traveler with a team about to cross a railway track where it intersects a public highway to stop, look and listen for a train. If the view of the railway tracks is obstructed, or if from the noise of the winds or the rattling of a wagon and the clatter of the horses’ feet, or from other causes, hearing is rendered difficult it would be his duty to stop, look and listen. Kelly v. Railroad, 88 Mo. 534 ; Stepp v. Railroad, 85 Mo. 229 ; Johnson v. Railroad, 77 Mo. 547 .

But when his view is unobstructed and his hearing not interfered with so that he can both look and listen, it is not required of him as an ordinarily prudent man under such circumstances before entering upon a railway crossing to stop, -for he can see and hear an *576 approaching train without so doing. McNown v. Railroad, 55 Mo. App. 585 ; Jennings v. Railroad, 112 Mo. 275 ; Easley v. Railroad, 113 Mo. 245 .

In this cas© the testimony was that the plaintiff’s buggy made no noise — the roads were smooth. There was no obstruction to interfere- with the plaintiff’s view-before he entered upon the crossing. It was his duty to look and listen but not to stop, and the evidence goes to prove that he performed the required duties. There is no merit perceived in the other objections suggested by-the defendant to the rulings of the trial court, and so the judgment must be affirmed.

All concur.