Plaintiff instituted her suit in the circuit court of the city of St. Louis against the receivers of the defendant railroad company to recover damages for the death of her minor daughter, Dorothy Rollinson, the petition alleging that said daughter had been negligently killed at the railroad crossing of Knox avenue, a street in the city of St. Louis, on August 25, 1916, by a train operated by defendants.
Of the pleadings it is sufficient to state that the petition as one for simple negligence in the alleged violation of a speed ordinance of the city of St. Louis, which limits the running of steam railroad engines and trains within the limits of said city, over, along or across any crossing or intersecting improved street, avenue or road, to a rate of twenty miles per hour. The answer was a general denial and a plea of contributory *Page 36 negligence on the part of the deceased. The reply was a general denial. It will be noted that under the pleadings the case proceeds as one for simple negligence and that the humanitarian doctrine is not involved in the case.
It appears that Dorothy Rollinson, on the day in question, lacked five days being eighteen years of age; was in good health, and had no trouble whatever with her eye sight or hearing, and was a girl of intelligence. She lived but a block or two from what is known as the Knox avenue crossing of the defendants' railroad, Knox avenue being a street running north and south. At this point three separate set of tracks, running parallel with each other, cross Knox avenue. They run on a gradual curve from the northeast to the southwest. The south track is the eastbound main track, the middle track is the westbound main track, and the north track is a switch track. On the west side of Knox avenue and south of the said tracks there was a store building from the corner of which a board fence ran north parallel with the street for a short distance and then turned west in the general direction of that of the railroad tracks. There was a concrete sidewalk on the west side of Knox avenue in front of the said store building, running almost to the railroad tracks. Crossing gates were maintained by the defendants at this crossing, one of such gates being situated north of the tracks, and the other south thereof. The base or support of the south crossing gate was distant about twelve feet from the south rail of the eastbound main track. On the morning in question the south crossing gate was out of order and was standing in a raised position.
Dorothy Rollinson, her sister and their mother, a widow, lived within a block or so of the Knox avenue crossing. On this particular morning Dorothy left the house shortly before eight o'clock and proceeded north along the sidewalk on the west side of Knox avenue to the crossing of the Frisco tracks. At this time a freight *Page 37 train, or drag, consisting of some fourteen or fifteen cars, was moving on the westbound main track, and either while Dorothy was crossing the eastbound main track or just after she had crossed over the north rail of said track and stood waiting for the freight train to pass, an eastbound passenger train, known as the fast mail or Meteor, consisting of a locomotive and eight or nine heavy steel coaches, approached on the south track and struck and injured her so she died in a few hours. It appears that a person walking north on the west side of Knox avenue, just after passing the fence corner above referred to, would have a view to the west along the railroad tracks of from three to six hundred feet, and that the range of view along the tracks to the west would be increased as one approached nearer the track.
The case was tried to a jury who returned a verdict in favor of the plaintiff and against the defendants in the sum of $6750, and from a judgment rendered thereon the defendants in due course appeal.
I. Let us first determine whether the case should have been submitted to the jury.
The measure of precaution to be observed by one about to cross a railroad track depends upon the circumstances and surroundings. [Schmidt v. Ry. Co., 191 Mo. 215, 90 S.W. 136.] And while the traveler is not excused from the use of some care to avoid injury, even while endeavoring to cross railroad tracks at a crossing supplied with gates and a flagman, yet where, as here, gates are maintained and the gate is open, it is a fact which a traveler may properly take into consideration and upon which he may place some reliance. [Wack v. Ry. Co., 175 Mo. App. 111, 157 S.W. 1070; Yonkers v. Ry. Co., 182 Mo. App. 588, 168 S.W. 307.]
One of defendants' witnesses stated on cross-examination that he had been a witness at the coroner's inquest held over the body of the deceased, and stated. *Page 38 "I remember testifying before the coroner that I saw her turn and look to the west. At that time she was standing just over the north rail. She made a motion like she was looking. When I saw her turn and look west is when I heard the last whistle of the slow order, and the train at that time was about three hundred yards west of the crossing. From where I was sitting I could see this train coming around the curve. When that whistle was blown, and she turned and looked in that direction, I should think she didn't seem to notice any train in that direction. She then turned around and almost faced me."
"Don't know whether I testified before the coroner that when the engineer got within fifty or one hundred feet of her he sounded four or five blasts of the whistle, but suppose if I said it I just estimated it; I was east of the crossing. The engine was not any closer to her than fifty or one hundred feet when the sharp blasts were given; if anything, it was farther than that. I didn't hear any whistle given between the long whistle three hundred yards west of the crossing and the short, sharp warning whistle. I noticed the gates at the time, and the gate on the south side was about half way up when my train and the other train were both going by the crossing."
If the testimony of this breakman is to be believed the deceased was standing just north of the north rail of the eastbound track when the last whistle of the "slow order signal" was sounded, which whistle was blown, according to his testimony, when the passenger train was about "three hundred yards west of the crossing." And according to his admission he had testified at the inquest that when the "slow order signal" was sounded, "saw the deceased turn and look west." There is testimony, which when taken in the light most favorable to plaintiff, made it impossible for the deceased to have seen the approaching train at that distance. And after that time, according to the brakeman, no further warning of the approach of this train *Page 39 was given until the locomotive thereof was within fifty to one hundred feet of her, if the testimony he admitted he gave before the coroner is correct, or within one hundred to two hundred feet of her, taking his evidence at the trial; and furthermore, as to whether the deceased could have heard the passenger train as it approached, we must note that the brakeman testified: "The train was making the usual noise that a passenger train makes, but I couldn't hear it because I was on the freight train," and that plaintiff stood within a few feet of the same freight train.
According to police officer Ryan, who was thoroughly familiar with the Knox avenue crossing, and who arrived on the scene of the accident almost immediately thereafter, "the north gate was down and the south gate, I will say, from half to two thirds of the way up. There is something to obstruct the view of a person approaching the Frisco tracks at Knox avenue from the south, the view to the west side of Knox avenue. . . . After you pass the corner of the fence you can see about five or six hundred feet up the track; the closer you get to the track the farther you can see up the track around the corner. There is a sharp curve and a great many sheds, and there is a fence on the curve, and I should judge that you can see over six or seven hundred feet after you got into the middle of the track — believe you could see six or seven hundred feet."
Another police officer, Edward F. Dwyer, a witness for plaintiff, and who also was thoroughly familiar with the Knox avenue crossing, testified that he arrived on the scene immediately after the accident; that "there is something in the way of obstruction to the view westwardly along the track of anyone approaching the tracks on the south at this point; there are some buildings on the west side of Knox avenue on the south side of the tracks, and also a fence. The effect of the building and the fence upon the view of a person coming as Dorothy Rollinson did, from the south and *Page 40 approaching the railroad tracks, is such that you would have to be almost on the tracks before you could see any distance west on the railroad. That is especially true as to the inbound track, that is, nearest to the south. There is a curve for quite a distance south and west of that point. The track curving in this manner crossses Knox avenue, I should judge, obliquely to a slight extent. The grade is slightly down to the east. . . ."
Lillian B. Jones who lived in a home immediately along the tracks of the said railroad company close to the scene of the accident, testified that the train had passed the crossing at the rate of fifty or sixty miles an hour, while N.L. Allen, who lived five hundred feet west of Knox avenue and whose lot extends back to the Frisco right-of-way, testified that the train was running "at least forty miles an hour."
From the facts gleaned from the record as we have set them out above, and taking them in the light most favorable to plaintiff, they are susceptible to the view that the deceased had already crossed over the nearest rail of the south tracks and had gotten to a point immediately north of the north rail thereof, when the approaching train gave the "slow order signal" whistle, and that plaintiff at that time looked to the west where she had a clear view of from nine hundred to one thousand feet, and did not see the train in sight; that the freight train which was then in the act of passing in front of her, which contained some fourteen or fifteen cars, had passed by with the exception of perhaps five of the cars; that plaintiff after looking to the west turned her head toward the southeast and did not look again until she was struck by the passenger train which approached at fifty to sixty miles an hour, the noise of the freight train being such that plaintiff did not hear the passenger train as it approached. The evidence in this record being susceptible of such a construction, we are inclined to the view that plaintiff made out a case for the jury and deceased could not be held to have been guilty of concontributory *Page 41 negligence as a matter of law, particularly when it is shown that the south gate was up, and Dorothy Rollinson being dead there is the presumption indulged in her favor that she knew of the ordinance limiting the rate of speed to 20 miles per hour and that she relied on defendant's running their trains at a rate of speed not in excess thereof. That the gate was open and the deceased's reliance on the ordinance are of moment in this case in that a traveler at a railway crossing where gates are maintained as here, and the gate is open, can properly take that fact into consideration and place some reliance thereon; and under the ordinance limiting the speed of trains at such crossings to twenty miles per hour, the deceased, having looked when the "slow signal" blast of the whistle was sounded, and not seeing the train in sight, may well have concluded that no approaching train would reach the spot where she was standing until the few cars of the freight train yet remaining to pass would have passed and thus enable her to pass over these tracks and out of the way of any train approaching on the southbound track. In light of the record as outlined above we are of the opinion and so hold that the learned trial judge properly overruled defendants' instruction in the nature of a demurrer offered at the close of the case.
II. We next address ourselves to the assignment of error argued here by the defendants, that the court erred in refusing to give certain instructions requested by the defendants by which the question of deceased's contributory negligence was sought to be submitted to the jury.
We have examined each of these instructions and find that they were properly refused.
Defendants' refused instructions numbered one, two and four each told the jury, among other things, that if the deceased neither looked nor listened for *Page 42 the approaching passenger train, "or if she did, that she failed to need what she saw or heard, then she was guilty of negligence which will bar plaintiff form recovering in this case," and your verdict must be for the defendants in this case. These instructions were properly refused in that there was no testimony upon which to base that portion of the instructions which we have quoted. There is nothing in the record to indicate that the deceased at any time saw the passenger train or heard the passenger train approaching, because of the noise that was made by the freight train within a few feet of which the deceased was standing, Each of these instructions was therefore properly refused.
Defendants' instruction number three, which was refused by the court, reads (in part) as follows: "The court instructs the jury that a railroad track is itself a warning of danger and one who attempts to cross the same must look or listen for the approach of trains thereon before attempting to cross, and if the view is obstructed he must stop and then look and listen, and this duty continues until the crossing is accomplished."
The facts in this case do not bring it within the rule that where a traveler's view is obstructed he must stop and then look and listen. The most that can be said of the testimony relative to this railroad crossing is that a traveler approaching it can look up the tracks for the distance of three hundred feet when passing the gate crossing, which is twelve feet from the nearest or south rail of the southbound track, and that the view to the west enlarges as one approaches the tracks due to the fact that the tracks curve to the southwest from the Knox avenue crossing. For this reason the instruction was properly refused.
While we have this point under consideration it is well to note that plaintiff's main instruction, which covers the entire case and directs a verdict, properly covered the question of deceased's contributory negligence, and that the learned trial judge who admitted testimony to the effect that the south gate was open at *Page 43 the time of the accident solely for the purpose of bearing upon the question of deceased's contributory negligence, of his own motion gave to the jury the following instruction:
"You are to consider the evidence relating to the south gate being raised only in so far as the same may relate to the issue of contributory negligence, and for no other purpose. If plaintiff recovers at all it must be on the allegation contained in her petition, to-wit, that deceased met her death as a direct result of the train being operated across Knox avenue in excess of twenty miles an hour."
Reading all given instructions together it is clear that the question of deceased's contributory negligence was properly submitted to the jury even though the instructions offered by defendants on this point had been refused by the trial court.
III. We next come to an assignment of error which in our view is well taken. It refers to the instruction on the measure of damages.
The court at the request of plaintiff gave the following instruction:
"The court further instructs you that if you shall find a verdict in favor of the plaintiff you will fix her recovery at an amount not less than $2000, and not in excess of $10,000, in the discretion of the jury."
And the court refused to give the following instruction asked by defendants:
"The court instructs the jury that if you find the issue in this case for the plaintiff, you cannot access in her favor as a penalty against defendants more than the sum of $2000; and you are further instructed that there is no evidence in this case to support a finding of compensatory damages, and if you find for the plaintiff, you will not assess any amount in her favor as compensatory damages above said penalty of $2000." *Page 44
The court erred in refusing to give the defendants' requested instruction on the measure of damages and it was error to give said instruction for plaintiff. Section 5425, Revised Statutes of Missouri, 1909, as amended by the Laws of 1911, page 203, which provides, among other things, that a corporation negligently killing any person while running, conducting or managing any locomotive, car or chain of cars, shall pay a penalty of not less than $2000 and not over $10,000, in the discretion of the jury, covers both a penalty and compensatory damages. It is no longer open to question but that under this statute the sum of $2000 is the penalty and the remainder up to the $10,000 limit is compensatory. [Boyd v. Ry. Co., 249 Mo. 110, 155 S.W. 13, Ann. Cas. 1914; Johnson v. Ry. Co., 270 Mo. 418, 193 S.W. 827; State ex rel. Dunham, et al., v. Ellison ___ Mo. ___ 213 S.W. 459; Smelzer v. Ry. Co., 262 Mo. 25, 170 S.W. 1174; Colvin v. Ry. Co., ___ Mo. App. ___, 200 S.W. 715.]
The petition in this case alleges no facts upon which to base a recovery for compensatory damages. Plaintiff's petition, it is true, in its prayer asks for damages in the sum of $10,000 yet alleges facts alone under which the plaintiff, if entitled to recover at all, is limited to the amount prescribed by statute as a penalty, namely, $2000 and no more. Plaintiff's petition having alleged no facts to sustain a recovery for any compensatory damages, no evidence was admissible thereunder in support of the compensatory part sought under the statute It follows that the instruction on the measure of damages as offered on the part of the defendants should have been given as it correctly declares the law applicable to this sase. [See cases cited supra].
There are several other assignments of error raised by the appellants which we have examined carefully but find each of them to be without merit and they are each of such character that in light of what we have stated in this opinion we do not think it necessary to set them forth in detail herein. *Page 45
Because of the error in plaintiff's instruction on the measure of damages, which incorrectly sets forth the law with reference thereto, it is evident that the plaintiff is not entitled to recover anything in excess of the penalty provided by statute, namely, $2000. Therefore, upon the respondent remitting the sum of $4750, within ten days, the judgment is affirmed; otherwise the judgment is reversed and the cause remanded, with leave to plaintiff to amend her petition if so advised. Reynolds, P.J., and Allen, J., concur.