Dudley v. Wabash Railroad

1. RAILROADS: Crossing Accident: Failure to Give Signals: Prima Facie Case: Burden of Proof. In an action against a railroad company for death by wrongful act, resulting from a train striking decedent at a public crossing, evidence that the hell on the engine was not rung nor the whistle sounded, as required by Sec. 3140, R. S. 1909, establishes plaintiffs right to recover, prima facie, and the burden of proving nonliability then shifts to defendant; and the refusal to direct a verdict for defendant is proper, unless its nonliability is affirmatively and conclusively established by the evidence. 2. EVIDENCE: Admissions: Conclusiveness. Where, in an action for the death of plaintiffs child as a result of a train striking a buggy driven by plaintiff at a crossing, defendant offered evidence that, immediately after the accident, plaintiff admitted that he saw the train approaching, but thought he could cross ahead of it, plaintiffs failure to deny or explain such statements was not conclusive of the fact alleged to have been admitted by them. 3. --: -: -: Question for Jury. Where a witness testifies to certain admissions made by plaintiff, from which an inference could be drawn which would preclude a recovery, but plaintiff testifies positively to the contrary, plaintiff should not be denied a recovery as a matter of law, but the question should be submitted to the jury. 4. RAILROADS: Crossing Accident: Contributory Negligence: Question for Jury. In an action against a railroad company for the death of plaintiff’s child as a result of a train striking a buggy driven by plaintiff, in which decedent was riding, at a public crossing, on a dark night, held that not only was there no conclusive showing that an obstruction caused by weeds growing along the right of way ceased in time to let plaintiff see and keep off the track, but there was a sufficient showing to justify an affirmative finding that the headlight on the. engine did not come into view until the horses were on the track, at which time the train was so near that plaintiff did not have time to drive off of the track before the buggy was struck; and hence it is held that the question of whether plaintiff was guilty of 'contributory negligence wasi properly submitted to the jury. 5. -: -: Failure to Give Signals: Contributory Negligence. In an action against a railroad company for injuries received by being struck by a train at a public crossing, where proof is offered that defendant failed to give the statutory signals, it must appear, in order to convict plaintiff of contributory negligence in failing to hear and heed the noise made by the train, not only that the train made a noise (whether by proof or judicial notice is immaterial), but that the circumstances were not such as to prevent him from hearing it or to excuse him from not heeding it; and the burden of proving such circumstances is on defendant. 6. -: -: Contributory Negligence: Failure to “Stop, Look and Listen.” Where, in an action for the death of plaintiff’s daughter in a collision at a public crossing on a dark night, between a railroad train and a buggy driven by plaintiff, in which decedent was riding, it appeared that plaintiff was unfamiliar with the crossing, never having traveled the road before, it could not be said, as a matter of law, that he was negligent in failing to know that his view of the track was obstructed, and in failing to stop and make a more careful observation for approaching trains, before undertaking to drive over the crossing. 7. NEGLIGENCE: Contributory Negligence: Intoxication. In an action for the death of plaintiff’s child, resulting from a buggy, in which she was riding and which was driven by plaintiff, being struck by a railroad train, evidence held insufficient to conclusively establish that plaintiff had been made careless by drinking before the collision. 8. DEATH BY WRONGFUL ACT: Suit by Parent for Death of Child: Necessity of Proving Child was Unmarried: Evidence. In an action by a parent for the death of a minor child, under See. 5425, R. S. 1909, it is necessary for plaintiff to establish that decedent left no husband or minor child surviving her, and it will not be presumed, in aid of such proof, that a female child, twelve and a half years of age, had never been married, since she might lawfully have contracted marriage at twelve years of age; but the marriage of a child at that age is so improbable that slight evidence will be sufficient to establish the contrary, and such evidence need not be direct and positive but may be shown by facts and circumstances or by tacit concession at the trial. 9. -: -:--: -: Sufficiency of Evidence. In an action by a father for the death of his daughter, twelve and a half years of age, under Sec. 5425, R. S. 1909, where it was shown that she lived with plaintiff and bore his name, and she was referred to by counsel and witnesses in terms usually applied to a little child and totally inconsistent with the idea that she was a married woman, while married women were referred to by their title of “Mrs.,” it was sufficiently proved and conceded that she was unmarried and left no minor child surviving her to authorize plaintiff to maintain the suit. 10. APPELLATE PRACTICE: Trial Practice: Unresponsive Answer to Question: Remedy. A party will not be heard to complain on appeal that an answer given by a witness was not responsive to the question, unless he moved to strike it out on that ground. 11. EVIDENCE: Conclusion of Witness. In an action for injuries received by being struck by a railroad train at a public crossing, a witness, in response to a question as to whether he had “observed, in passing over the crossing, about how close you would be to the south rail before you could see up,” answered: “A man would have to be within five feet of the crossing, of the south rail of the crossing, on account of the growth on the right of way and on the side of the right of way..... there’s quite a lot of tufts of gras's growing over the sides of the embankments.” Held, that the office of the answer was to show how nearly the obstructing embankment and vegetation extended along the side of the road and up to the railroad track, and hence it was not a mere conclusion. 12. TRIAL PRACTICE: Incompetent Evidence: Motion to Strike Out: Necessity of Definiteness. Where portions of a witness’ testimony is rendered incompetent by answers he gives on cross-examination, it is proper for the party conducting such examination to point out the incompetent statements and to move tó strike them out; but where a motion to strike out is made, which is so broad and indefinite that it would, if sustained, have the effect of striking out all of the witness? testimony, .it should be overruled, even though some of his testimony is incompetent. 13. EVIDENCE: Grass and Weeds: Sufficiency of Identification. Where, in an action for death in a railroad crossing accident, it was claimed that the view of the train was obstructed by grass and weeds growing on the right of way, and weeds and grass taken from the place and tied into bundles were properly identified, and the difference between their appearance when growing and at the time they were exhibited was explained to the jury, it was proper to admit them in evidence, over an objection that they were not in the same condition as when they • were standing on the ground; their difference in appearance being for the jury in determining the weight to be given to them. 14. DEATH BY WRONGFUL ACT: Measure of Damages: Instructions: Nondirection. An instruction, in an action for death at a railroad crossing, brought under Sec. 5425, R. S. 1909, that, in case the jury found for plaintiff, their verdict should be in a sum not less than $2000 and not exceeding $10,000, was correct in its general scope, and the failure to instruct the jury that they should arrive at the amount of their verdict by the exercise of a sound discretion, giving consideration to the extent of the injury, so as to give effect to the remedial side of the statute, and to the facts relating to the acts of negligence, so as to give effect to its penal side, was mere nondirection, for which the court could not be convicted of error, in the absence of a request by defendant that the omission be supplied.

Appeal from Audrain Circuit Court. — Hon. James ID. Barnett, Judge. (1) The court erred in refusing to direct a verdict for the defendant at the close of the evidence for the plaintiff, and at the close of all the evidence, (a) The plaintiff’s contributory negligence, he being the beneficiary under the statute attempting to recover damages, bars a recovery. Cogan v. Eailroad, 101 Mo. App. 179. This is the theory on which the case was tried. Reilly v. Eailroad, 94 Mo. 600; Koons v. Eailroad, 65 Mo. 592; Hook v. Railroad, 162 Mo. 569. (b) Plaintiff’s evidence is to the effect that he heard no signals and did not see the train, and that as he'went on the track the train was not over thirty feet away with the headlight lit. His evidence is contrary to the physical facts. Hook v. Railroad, 162 Mo. ,569; Sianguinette v. Railroad, 196 Mo. 466; Payne v. Railroad, 191 Mo. 215; Kelsay v. Eailroad, 129 Mo. 362; Hayden v. Eailroad, 124 Mo. 566. (c) The experiments made by plaintiff’s witnesses were made in the day time and were of no value to determine whether a headlight could be seen through the weeds. If Maxey and Miss Maxey saw the headlight, then plaintiff could have seen it. Newton v. Railroad, 152 Mo. App. 167. (d) After the accident, plaintiff admitted to numerous persons that he saw the train before he went upon the track. Under all the circumstances, the admissions being evidence that the plaintiff saw the train, the plaintiff failing to explain or to deny the admissions, such statements become for the purpose of this case just as if they were plaintiff’s own testimony given upon the witness stand; and the plaintiff stands in this case with nothing more in his favor than evidence that he did not see the train, contradicted by his own evidence of a much stronger character that he did see the train before he went upon the track. His evidence, therefore, is- á felo de se. It is too contradictory to be of the slightest value. Oglesby v. Railroad, 150 Mo. 177. (e) There was uo evidence in this case that plaintiff’s deceased daughter was single and unmarried and that she left her husband or minor child or children surviving her. This proof was necessary to a recovery by the father. (2) The court erred in allowing the witness Pritchett to state that he thought a person would have to get within five feet of the south rail to see up the track. Roscoe v. Street Railway, 202 Mo. 595; Saylor v. Railroad, 185 Mo. 239; McAny v. Henrici, 141 S. W. 633. (3) The court erred in admitting in evidence the bundle of weeds on behalf of the plaintiff, (4) The court erred in refusing defendant’s instruction No. 4. To move to a crossing at a rapid rate of speed where the view was obscured is negligence; and ordinary care requires that when one cannot see he should stop to make more careful observation. (5) The court erred in giving plaintiff’s instruction 3. Boyd v. Railroad, 236 Mo. 54. (1) When the statutory signals are not given and a collision occurs at a crossing, it is presumed that this negligence caused it, and the burden is on the defendant to prove otherwise. Byars v. Railroad, 141 S. W. 926; McNulty v. Railroad, 203 Mo. 475. (2) Every one is presumed to be in the exercise of due care for his own safety until the contrary is shown. Dunlap v. Chemical Works, 139 S. W. 828. (3) This presumption is not overcome by proof of a crossing collision; the burden is on the .railroad company to prove contributory negligence to overcome this presumption. Byars v. Railroad, 141 S. W. 926. (4) The court committed no error in refusing appellant’s fourth instruction. There is no proof that any circumstances interfered with plaintiff’s hearing or that he knew of the obstruction. Russell v. Railroad, 70 Mo. App. 88. (5) And whether or not a traveler should stop, look and listen, is a question for the jury in view of all circumstances. Moore v. Wabash, 137 S. W. 7; Smith v. Railroad, 150 Mo. App. 1; Frank v. Transit Co., 99* Mo. App. 334; Elliott v. Railroad, 105 Mo. App. 532. (6) Pritchett’s evidence that you would have to get within five feet of the south rail to see three hundred feet west on the track is competent. This is a statement of fact and not an opinion or a conclusion. Railroad v. Robey, 118 111. App. 324; Innis v. Steamer, 4 Cal. 5'; Mitchell v. Railroad, 138 la. 283; Railroad v. Shannon, 76 Ark. 166; Railroad v. Sanders, 99 S. W. 1109; Railroad v. Hagenbeck, 8 N. E. 1016; Railroad v. Watson, 90 Ala. 41. Statement. — ¿This is an action by the plaintiff against the defendant under section 2864, Revised Statutes 1899, as amended (Laws 190*5, p. 135), for damages on account of the death of plaintiff’s daughter, Eunice Dudley, who, while riding in an ordinary open buggy with plaintiff, was struck upon a much-traveled public road crossing in the western part of Martinsburg, Missouri, by one of defendant’s eastbound freight trains. Plaintiff had verdict and judgment for $2500 and the defendant has appealed. The allegation of negligence upon which the case went to the jury is that defendant failed to give the statutory signals by bell or whistle while approaching the crossing. The answer contained, first a general denial, and then a plea that plaintiff was guilty of contributory negligence in driving upon a public crossing in front of defendant’s train when he saw and heard or could by the exercise of ordinary care have seen and heard said train in time to have remained off of said track and in a place of safety with his daughter. There was ample evidence that defendant failed lo give the statutory signals as charged. The question is whether the state of the evidence is such as to convict plaintiff of contributory negligence as matter of law. The defendant’s right of way runs approximately east and west through Martinsburg. Approaching the town from the west and coming toward the “North Road,” where the plaintiff’s daughter was hilled, the railroad track slopes down hill to a point about 2000 ■ feet from, and eight feet lower than, said North Road. It then runs up an incline for said 2000 feet to said road, which as already mentioned is eight feet higher than the foot of the incline. Nearing the road it runs through a “cut” for about 400 feet, then out of the cut while crossing a little “swag” in the ground surface, and then approaches the North Road in and through another cut which is about 400 feet long and has embankments on either side which are each about four feet high above the rails. On the &outh side or the side from which plaintiff approached the railroad track, the top of the embankment is about fifteen feet from the south rail, though it slopes from there toward the track. Such embankment extends west along the railroad track about 400 feet. The northern six or eight feet of the top of the embankment is the highest, being there about four feet high on account of the earth thrown up from the cut. From thence south the natural ground is at least three feet higher than the rails and gradually declines “a little bit, not much,” toward the south, falling a foot or two in 300 feet. Such embankment comes east to within thirty feet of where a wagon would travel along the North Road. This eastern end of the embankment is in the neighborhood of four feet above the North Road at its northern edge and gets slightly lower, perhaps within three feet as it extends back southwardly. Peyton’s drug store is on the southeast corner of First and Washington streets in the eastern part of the town and about 375 feet south of the railroad track. Washington street runs parallel to the railroad track. The way from Peyton’s drug store to the “North Road” crossing, at which plaintiff’s daughter was killed, ran west along Washington street about 1000 feet to and across a little culvert, and then diagonally, northwest and uphill, about 500 feet, along a traveled road to the North Road, and along it north about 100 feet. At the crossing, on the west or left side of the North Road, is a cattle guard, from which a plank fence four feet high runs some twenty feet south and up on the embankment. 'At the time when plaintiff’s daughter was killed, behind this fence, on the northern slant of the embankment, and on top of the embankment and higher ground for a considerable distance west, was a growth of resin weeds and prairie grass.' According to plaintiff’s witnesses this growth was dense and high, six to eight feet high, above the embankment, and higher ground, and effectually obstructed the view to the west along the track as one approached from the east and south along the way we have described. As one started up the incline from the culvert and looked northwest, he could just see the tops of the telegraph poles along the right of way, even after'the weeds and grass had been cut off. On August 7, 1909, plaintiff, a widower, and his two children, Zella and Eunice, spent the day at a picnic in New Florence, Missouri. He and his said children lived together with Lute Diggs, a farmer, from whose farm they had come into Martinsburg that morning over the North Road and had taken the train from Martinsburg to New Florence, putting up the buggy and team at the livery barn in Martinsburg. About 9:00 o’clock that night the two girls waited at Peyton’s drug store while he went and got the rig. From Peyton’s drug store, going home by way of the North Crossing, they followed the way we have traced above, that is, they went west along Washington street until they came to and crossed the little culvert and then took the diagonal road to the North Road and thence north down towards the railroad crossing. The • plaintiff was driving, Zella, who was fifteen years old, was sitting beside him with the little girl, Eunice, who was only twelve and a half years old, sitting on her lap. The buggy had no top to it. The ponies were going at a little trot. Both plaintiff and his daughter Zella testified that as they went along from Peyton’s drug store they did not see the headlight of the train coming from the west although they were looking in a generally westward direction all the time until they turned north to go over the crossing. They were corroborated in this by one Erret Oliver who followed after them and had reached the culvert about the time when the collision occurred. lie testified that he did. not see any light from the engine. As' they got near the crossing, Zella called plaintiff’s attention to the fact that they were approaching the railroad track and each of them testified that thereafter, until they got right on the track, they kept looking first one way and then another for signs of an approaching train and saw nothing. We may say that the plaintiff was not familiar with Martinsburg and its surroundings, having come in over the North Road across the railroad track that morning for the first time. The team went at a slow trot until they got right at the track and plaintiff checked them up a little as they came to it. The team was on the track and the wheels of the buggy just about at the south rail when he first saw the headlight which seemed to be not more than twenty or. thirty feet west of the crossing. Seeing it, he reached for the buggy whip, thinking he would try to get across. The engine struck the buggy about that time. The little girl, Eunice, was killed. Zella was severely injured. One of plaintiff’s witnesses, Lute Biggs, made am observation approaching the track in a buggy like the one in which plaintiff’s daughter was killed, and he testified that he had to drive to a point where the horses’ heads were on the south rail before he could'.11 see up the track any distance at all and then -he could see only thirty to forty feet. Dr. Divan testified that shortly before this collision he had had his attention called to the condition of the crossing as to whether or not he could observe trains coming from the west, as follows: He approached the crossing going north in an automobile as a train came from the west and, though he was looking for the train all the time, he got within ten or fifteen feet, “right on the track,” before he observed the engine; got so close he could not stop and went on across. At that time the train was probably 100 yards away. He was going five or six miles an hour. Two other witnesses for plaintiff made observations in an automobile, approaching the crossing along the way we have described. One testified that he could not see an engine up the track to the west until he got within sixteen or eighteen feet of the south rail, and then he could see only sixty or eighty feet up the track. The other testified that he had to get within eighteen or twenty feet of the south rail before he could see an engine and not then unless it was within seventy-five or eighty feet of the crossing. Just where the train with which plaintiff collided was when he was within sixteen to twenty feet of the track is not disclosed. It does appear, however, that the train approached the crossing at a speed variously estimated at from thirty to fifty-five miles an hour, while plaintiff approached it at a slow trot; also that though the plaintiff and his daughter, and Maxey and his daughter, two of defendant’s witnesses whom we will mention further, were looking for it, none of them saw the headlight until their horses were upon the track. On behalf of defendant several witnesses testified that they saw the headlight of the engine as they looked toward the west, but none of them were in a position to have their view obstructed as was the plaintiff, except Watkins, who testified that he made an observation from the road as it approached the crossing and found that a headlight would show, through the weeds and grass. He had worked for the defendant twenty-eight years, and at the time of the'trial had three sons working for it. Two other witnesses, William Maxey and daughter, testified that they drove toward the crossing that night along the way we have traced, immediately in front of the plaintiff’s rig. They stated that from about the culvert they looked to the west and saw the light of the train — not the headlight, but a reflection in the sky, “a blush in the heavens,” above the obstructions. Maxey testified that it was “very dark,” “an awful dark night.”' He testified that he did not see the headlight itself and could not get a view of it until he was right up to the track; his team was on the track when the headlight flashed in his face. His daughter’s testimony was to the same effect. He saved his conveyance from a collision only by a rapid whirl to the left. At that moment, plaintiff’s team and buggy, following, were struck. As the defendant’s counsel seems to place a different construction upon the testimony of the witness Maxey and his daughter, we here set forth the pertinent parts thereof. Direct examination of William Maxey: “Q. I will get you to state if in approaching that crossing there where the accident occurred you saw any train? A. I saw the light of the train before I got to the crossing. ’ ’ He then states that he was about at the bridge or culvert we have mentioned when he first saw the light. “Q. When you got down there and first saw the light of the train you still drove on towards the crossing? A. Yes, sir. Q. I will get you to state, you drove on the crossing, did yoü? A. I drove on to the crossing, yes, sir. Q. When you got onto the crossing what did you do? A. I saw the train close to me and I whirled my team away from it on the south side of the railroad. Q. I will get you to state if you saw any person there in a bnggy? A. No, sir, I didn’t see any. Q. You didn’t see any? A. No, sir, not at that time. Q. Well, did you see anybody afterwards ? A. I saw them there when the train struck them. Q. Where were they? A. They were right on the track. Q. Right on the track? A. Yes, sir. Q. Now describe to the jury how you drove up there and how you turned? A. I drove up going kind of northwest course, the road runs up a little slope to the track, and I saw the train was too close to me to venture over and I whirled myYearn south. Q. Which way did you turn? A. I turned to my left.” Cross-examination: “Q. And you simply got a glimpe of the headlight at the bridge (culvert) ? • A. Somewhere along there. Q. And drove on, and of course having seen the headlight down there you knew there was a train in the neighborhood? A. Yes, sir. Q. And you were listening and looking for the train and aiming to guard yourself against it? A. Yes, sir.” . . . “Q. And you did drive up to within about twenty feet of the rail, didn’t you? A. I didn’t know how far; it was dark; I know I drove until I could see the headlight flash in my face. Q. The headlight flashed on you suddenly and you became somewhat excited and pulled your horses to the left or south? A. Yes, sir. Q. And as the headlight lighted up the space in front of you you saw Dudley’s team on the track right ahead o“f you? A. ■ Yes, sir. Q. And it • was struck? A. Yes, sir. Q. You turned off to the left or to the south? A. To the left. Q. Now you never heard any bell or any whistle on that train as it came down there at all, did you? A. No, sir, I nevér heard anything of the kind. Q. And not until it was in the act of striking the Dudleys did it whistle? A. That’s right. Q. And you were listening and aiming to guard your own conduct by the sound of whistle or bell? A. Well, I thought I could cross, that’s all I was aiming to do. Q. And not hearing any bell or whistle, you didn’t think it was as close as it was? A. I didn’t think it was as close at it was. Q. And when it did dawn on you danger was there, it flashed on you suddenly? A. Yes, sir. Q. And the light from the headlight showed Dudley’s buggy on the crossing? A. Yes, sir. Q. It was so dark before that you couldn’t see, a dark night? A. Yes, sir, it was an awful dark night. Q. And you drove at rather a rapid trot. A. Drove tolerably pert, yes, sir. Q. You couldn’t tell what rate Mr. Dudley was driving, you didn’t see him? A. No, I didn’t know he was anywhere about. Q. After getting that first gleam of the headlight when the train was about a mile away, you .don’t remember of seeing that headlight any more until it flashed on you? A. I don’t remember noticing only the light of the headlight in the sky; that’s all I recollect. Q. You don’t mean to be understood as saying you saw the headlight itself; you think you saw probably lighting up? A. Yes, sir,>but I never noticed the headlight until I drove up on the track. Q. You saw the headlight as a headlight when at the bridge? A. No, I didn’t see any headlight at the bridge; I saw the light from the train. Q. Just saw sort of lighting up above the track. A. Yes, sir. Q. You never saw the headlight at all? A. Not until-I got right up to the track, then I saw the headlight. Q. And you never could get a view of the headlight and didn’t get a view of the headlight itself until it was in the act of striking the Dudleys? A. No, sir.” Cross-examination of Miss Maxey: “Q. Do I understand you to say you kept your eye on that headlight from the time you went down onto the bridge (culvert) until your father turned? A. Not the headlight; I did the light from the train. Q. You mean you saw a flush in the heavens above the obstructions? A. Yes, sir. Q. But you couldn’t see the headlight proper? A. No, sir. Q. And didn’t except at first? A. No, sir. Q. Now at the time your father drove-up there and approached the crossing there was considerable excitement in your vehicle, wasn’t there? A. Yes, sir. Q. Your father was very close to the railroad track before the headlight came into view? A. Well, I thought so. Q. And your father wheeled his team towards the south and west almost instantly and got away from the track? A. Yes, sir. Q. And just as he wheeled, the light of the engine made the crossing light and you saw a vehicle on the crossing that was being struck by the oncoming engine? A. I didn’t see it until after I turned. . Q. Well, just in the act of turning? A . Yes, sir. Q. You saw it and saw the engine strike it? A. Yes, sir.” . . . “Q. How close, Miss Maxey, do you think your father was to the track when the headlight came in view?. A. I couldn’t say. Q. Well, could you estimate any distance? A. No, sir, I don’t know anything about such as that; of course it was dark; I couldn’t see; we must have been close; that’s all I can say. Q. And how close was the engine carrying the headlight when he turned, in your judgment; very close? A. I couldn’t say; I was excited and it seemed close to me. Q. It seemed close to you? A. I couldn’t swear how close it was. Q. Couldn’t swear how close, but your father had barely turned when it crossed the crossing. A. Yes, sir.” A Mr. Obushon, to whose house the girl that died was brought, testified that plaintiff told him the next morning, in substance, “that when he approached the track he saw the engine and it was close and he tried to make it and it caught him before he got there.” The conductor and brakeman on the train testified that when they got off and found the plaintiff he told them in effect that he saw the train coming but thought he could beat it across the track. William Moore testified that he heard this conversation, adding to it that plaintiff said “the girls tried to get him to stop,” and that the next day plaintiff said “he saw the light but he thought it was a quarter mile away, but when he got up on the track he found out it was closer; he thought he could make it until it was too late.” On this witness’s redirect examination it seemed to be his idea that plaintiff was right upon the track when he first saw the headlight. H. Gr. Hilkemeyer testified that plaintiff told him the girls begged him not to cross the track, but that he thought he had time enough to make it. Another witness stated that when plaintiff came to the place where Zella was lying, Zella asked the plaintiff if her sister had not screamed and asked him not to cross the track and he answered, “Yes, but I thought I could get across the track and so did the team.” Plaintiff was not cross-examined at all and was not recalled to be interrogated as to the statement attributed to him by defendant’s witnesses. The court gave several instructions at the instance of plaintiff and defendant respectively, but refused to give one offered by the defendant as follows: ‘ ‘ The court instructs the jury that a traveler upon a public highway at a crossing over a railroad track is bound to use caution and care for his or her own safety; that the presence of the railroad itself is a warning to such traveler of the danger of going upon the track at a crossing, and that it was the duty of the plaintiff when approaching said track to look and listen for an approaching train, and if an embankment and vegetation growing upon said embankment would prevent his seeing an approaching train in near approach to the crossing, then it was his duty not only to look and listen but to stop and look and listen; and the court instructs you that if the plaintiff, the driver of the vehicle, went onto said public crossing without looking and listening for an approaching train, and if the said embankment and the vegetation between him and the railroad prevented his seeing an approaching train, and he went upon said crossing without stopping to look and listen for an approaching train, when by doing so he conld have discovered the approach of said engine and train, bnt went upon the track and thereby caused his daughter to be struck and killed, then this plaintiff cannot recover and you will return a verdict for the defendant.” Other matters will be noticed in the opinion proper.