(concurring).
I concur in the result reached in the principal opinion but would be more specific with reference to a retrial.
At the outset, I agree that the evidence did not establish that plaintiff1 was guilty of contributory negligence as a matter of law and that this issue properly was submitted to the jury for its determination.
I do not consider that any Missouri case up to now has ruled on the question of whether conduct of a railroad in permitting weeds and brush to grow on its right of way can constitute negligence which will sustain a verdict against the railroad in favor of one injured at the crossing. The case of Fowler v. Missouri-K.-T. R. Co., 229 Mo.App. 561, 84 S.W.2d 194, cited in the principal opinion, recognizes that such conditions may be considered in determining the railroad’s duty to warn, but the appeal did not involve the issue of whether plaintiff could recover on that basis as actionable negligence. The petition in Fowler contained such an allegation of negligence but the case was not submitted to the jury on that issue.
It also seems clear that there is no statutory duty in Missouri on which plaintiff can rely to sustain a judgment based merely on failure to cut the weeds as constituting negligence. The only statutory duty on defendant to cut weeds and brush on its right of way is prescribed in § 389.660(2) (all references are to RSMo 1959, V.A.M.S.). That statute expressly requires removal of all “dead or dry vegetation and undergrowth upon the right of way”, this being “for the purpose of preventing the spread of fire and the destruction of property”. The statute requires that this be done between the first and fifteenth days of August, and between the fifth and twenty-fifth days of October, in each year. That section does not create a statutory duty the breach of which constitutes negligence for which plaintiff can recover herein. Plaintiff also cites § 389.650(3), which requires the railroad to build and maintain farm crossings, but that section does not provide for any statutory duty of the railroad to cut weeds and undergrowth on its right of way adjacent to such farm crossings.
There are cases in other states which have permitted recovery on the theory that permitting growth on the right of way adjacent to a crossing so as to obstruct the view of approaching trains constitutes negligence. For example, in Corley v. Atchison, T. & S. F. R. Co., 90 Kan. 70, 133 P. 555, 1. c. 556, the court upheld a verdict for plaintiff and concluded with this statement: “It follows that it was proper in the present case to submit to the jury the question whether the defendant permitted the crossing to be rendered unnecessarily dangerous by allowing needless obstructions to the view, and that a finding of negligence in that regard is sufficient to support a judgment.” See also Burzio v. Joplin & P. Ry. Co., 102 Kan. 287, 171 P. 351, L.R.A.1918C, 997, and Adams v. *488Missouri-K.-T. R. Co., 119 Kan. 783, 241 P. 1086. The latter opinion seems to recognize that this is a minority view.
The view that permitting such growth is not actionable negligence in and of itself is expressed in Cowles v. New York, N. H. & H. R. Co., 80 Conn. 48, 56, 66 A. 1020, 1. c. 1023, 12 L.R.A.,N.S., 1067, wherein th court said: “The view of the trial court that the neglect of the defendants to cut down the trees and bus.hes upon their land which obstructed a view of their tracks from travelers passing on the highway was in itself a violation of the defendants’ legal duty, and therefore constituted actionable negligence, finds support in some authorities. C. & E. I. R. R. Co. v. Tilton, 26 Ill. App. 362, 366; T. H. & P. R. R. Co. v. Barr, 31 Ill.App. 57, 60; 2 Thompson on Negligence, §§ 1507, 1508. The contrary view finds support in Cordell v. N. Y. C. & H. R. R. R. Co., 70 N.Y. 119, 26 Am.Rep. 550; Nashville C. & St. L. R. R. Co. v. Witherspoon, 112 Tenn. 128, 78 S.W. 1052; A. T. & S. F. R. R. Co. v. Hawkins, 42 Kan. 355, 22 Pac. 322; C., R. I. & P. Ry. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993; Shearman & Redfield on Negligence, § 478; Baldwin on American Railroad Law, p. 402. We have never before had occasion to discuss this question, and must therefore treat it as an open one. For the reasons above suggested, we are satisfied that, while trees growing upon land adjacent to the highway, including land owned by the railroad company, which substantially obstruct the view of a traveler approaching the grade crossing, is clearly one of the circumstances, to be considered in determining whether the railroad company exercised ordinary care in the operation of its cars at a particular time, yet the mere neglect of the company to cut down trees on its own land although proper to be considered with all the surrounding circumstances affecting the care required at that time is not in itself a violation of any legal duty the company owes to a passing traveler (unless so made by statute), and it not therefore in the absence of any other negligence a neglect which constitutes actionable negligence.”
A similar view is expressed in Cordell v. New York C. & H. R. R. R. Co., N. Y., 70 N.Y. 119, wherein the court said, 1. c. 123: “The obstructions in this case may, and perhaps should, have had a material bearing upon two questions: First, as to the contributory negligence of the plaintiff. If they prevented his seeing the approaching train until he arrived at the track, he would not be negligent for not seeing it before, and secondly, the fact of the existence of those obstructions, with the other surrounding circumstances, were proper to be considered upon the question of the degree of care and vigilance which the defendant was bound to exercise in the running and management of its train, and in giving warning of its approach. It cannot be an independent ground of recovery.”
I have reached the conclusion that the rule as expressed by the Connecticut and New York courts is the better one and I would adopt it. Actually, this is in harmony with what was said in Fowler v. Missouri-K.-T. R. Co., supra.
The principal opinion correctly points out that courts of this state have recognized that there can be a common law duty to warn at private crossings. Fowler v. Missouri-K.-T. R. Co., supra; Boland v. St. Louis-San Francisco R. Co., Mo., 284 S.W. 141. In my judgment, the evidence which was introduced in this case would be sufficient to sustain a finding by a jury that defendant did have a duty to warn and that the failure so to do was negligence. Concededly, no warning of any kind was given within one and three-tenths miles of this private crossing.
Plaintiff’s petition actually alleged as one assignment of negligence that defendant, knowing of the growth adjacent to the crossing and of the hazardous condition thereby created, should have warned plaintiff by bell, whistle or otherwise of the approach of the train and negligently failed so to do. However, that issue was not submitted to the jury. In view of my conclusion that plaintiff can make a case on *489the issue of failure to warn, I would reverse and remand so as to give plaintiff an opportunity to retry his case on that basis. I do not mean to infer that plaintiff could not submit on some other ground of negligence if the evidence justifies, but I do believe we should recognize that the evidence introduced would sustain a verdict based on a finding of failure to warn and that such failure was negligence.
Finally, I observe the defendant offered no testimony with respect to the extent of plaintiff’s injuries. Furthermore, defendant’s brief in this court says that, “Defendant has not made a statement of facts as to the injuries and damages claimed, as no issue is briefed on this appeal as to injuries and damages.” Defendant is the appellant and has not made an issue of the amount of the recovery. Under those circumstances, there would appear to be no useful purpose in having a retrial on the issue of the extent of damages. The issue presented is one of liability. Consequently, I would reverse and remand for trial on the issue of liability only.
. The term “plaintiff” when used herein includes both plaintiffs when appropriate.