With some hesitation I dissent in this case. I agree with the holding in the principal opinion of Westhues, C., that the plaintiff-respondent's long main instruction A was erroneous in requiring the jury to find only that appellant's automatic red light crossing signal had been out of order long enough for appellant to know that fact, without further requiring the jury to find the appellant had had time to repair it. But respondent's cause of action and main instruction was not based solely on that alleged negligence: it was also [462] founded on the failure of appellant's enginemen to sound the statutory warning signals for the crossing by bell or whistle. And all the assignments of negligence in the instruction were coupled together by the conjunctive "and".
Our rule under our decisions has been that even though some of the conjoined assignments of negligence are unsupported by substantial evidence, yet if any of them are so supported and the jury returns a verdict for plaintiff, the verdict will not be disturbed. This is put on the theory that the jury must have found for plaintiff on all the assignments in obedience to the instruction; and that their finding on any of the good assignments will sustain the verdict even though others of the assignments were not good. And if that be true of assignments which are unsupported by substantial evidence, it would seem the same ought to be true of assignments whereon there has been a misdirection in the instructions. In either case, on the hypothesis of the rule, there would still be good assignments of negligence left on which the jury could base its verdict. The rule is applied in Rinderknecht v. Thompson, trustee (Div. 2),359 Mo. 21, 220 S.W.2d 69, 74(11).
In that railroad-highway crossing damage case, the plaintiff truck driver's main instruction told the jury that if the defendant railroad's automatic signal was not working, and the railroad knew that fact long enough to have repaired the signal before the casualty, then *Page 784 the plaintiff could recover. But there was no evidence as to how long the signal had been out of repair, or that the railroad could have repaired it within the time. The decision nevertheless held the error was not reversibly erroneous, because these two grounds of negligence were stated conjunctively.
In the instant case there was evidence on both these points. However, the plaintiff's instruction omitted the second requirement — that the railroad knew of the defect in time to repair it — which was, of course, erroneous. But there were also still other assignments of negligence in this plaintiff's instruction, namely that the railroad violated its statutory duty to sound crossing alarms by bell or whistle; they were stated conjunctively with the other assignments; and there was evidence to support them. This being true, if the "conjunctive" rule is to be followed I think it should be applied in this case.
[6] The second finding of error in instruction A, in the principal opinion, is that it authorized the jury to find a verdict for plaintiff-respondent if they believed from the evidence that after the train came within view of respondent's deceased husband, he was going so fast he could not stop his automobile before reaching the railroad track upon which the train was approaching. There was a shed on the right-of-way which obstructed the deceased's view of the approaching train for a considerable distance. And the theory of the principal opinion is that it was contributory negligence for him to drive at such high speed that he could not stop his automobile after the train came in view; and that no matter how many assignments of negligence may have been coupled in the conjunctive in plaintiff's instruction, still if the evidence showed the deceased was guilty of contributory negligence he could not recover on any of them, as a matter of law, or at least the plaintiff's instruction would be prejudicially erroneous, citing Bachman v. Q.O. K.C. Rd. Co., 310 Mo. 48, 66 (V), 274 S.W. 764, 768(8-9).
But it seems to me the decision holds the other way. It did expressly rule that where a motorist depended on the automatic signals at a crossing where his view was obstructed, and they were generally relied on by the public, it at least was a question for the jury as to whether the plaintiff was guilty of contributory negligence. In the instant case the plaintiff-respondent's main instruction A seems to have followed pretty closely the instruction in the Bachman case. Not only did it require the jury to find that the railroad maintained an automatic signal and the public relied on it, but it also required the jury to find the deceased was exercising the highest degree of care, before the jury could return a verdict for plaintiff-respondent.
[463] It is well established law in this state that where a motorist approaches a blind railroad crossing where he cannot see the train, he should check his speed and watch carefully, and even stop if *Page 785 necessary, to avoid being injured. But where the railroad maintains an automatic warning signal which discloses the approach of a train, the motorist may rely on the signal if it does not show the train is approaching, and relax his vigilance to some degree. It was so ruled in the Bachman case, and there are several others more or less in point: Mullis v. Thompson,358 Mo. 230, 213 S.W.2d 941, 944(2); Rhineberger v. Thompson,356 Mo. 520, 526(1), 202 S.W.2d 64, 68(7); Perkins v. K.C. So. Ry.,329 Mo. 1190, 49 S.W.2d 103; Benton v. Thompson,236 Mo. App. 1000, 1001, 156 S.W.2d 739; State ex rel. Thompson v. Shain,349 Mo. 1075, 163 S.W.2d 967; Fritz v. Mfg. Ry. Co. (Mo. App.) 124 S.W.2d 603; Ann. 6 N.C.C.A. (N.S.) 781; Ann. 18 N.C.C.A. (N.S.) 174, 195.