ON MOTION FOR REHEARING. The evidence tended to prove that when the engine was 325 feet from the crossing and the truck 40 feet from the track, the fireman could and should have discovered that the driver of the truck was oblivious of the approach of the train and intended to cross the track, and could have thereafter sounded an adequate warning in time to have enabled the driver to avoid the collision by stopping the truck. The trial court submitted negligent failure to warn which was approved by this court.
Appellant contends that in approving the submission of negligent failure to warn, we overlooked the fact that plaintiff and the driver of the truck both testified that when the truck was 40 feet from the track and the engine 325 feet from the crossing, they looked but did not and could not see the train; that they continued to look and did not and could not see the train until the truck was within fifteen feet of the track and the train within 150 feet of the crossing.
Appellant contends that necessarily the fireman could not have seen the truck and its occupants any sooner than the plaintiff and the driver of the truck could have seen the train. [Bollinger v. St. Louis-San Francisco Railway, 334 Mo. 720, 732-3,67 S.W.2d 985.]
We have no fault to find with the holding in the Bollinger case. The holding in that case was that, "The same gloom, mist and fog *Page 79 which prevented plaintiff and the driver of the Ford car from seeing the coming train also prevented the operators of the train from seeing the approaching Ford car."
The proof in the case at bar was not such that we can say, as a matter of law, that if the fireman could see the truck when it was forty feet from the truck, necessarily the occupants of the truck could see the train at that time. There was evidence that the distance from the top of the rail to the level of a man's eyes when sitting in the fireman's seat on the engine was eleven feet. It is a matter of common knowledge that the distance from the ground to the level of a man's eyes when sitting in an automobile is considerably less than eleven feet. Plaintiff testified that an embankment covered with drifted snow and a curve in the track prevented him seeing the train until the truck was within fifteen feet of the track. It might well be that the embankment covered with drifted snow obstructed plaintiff's view of the train, but did not, on account of the fireman's elevated position, and on account of the fact that the truck was much closer to the embankment than the train was, obstruct his view of at least the top of the truck as it approached the track. We would not be justified in holding otherwise, as a matter of law. We did not discuss this question in the opinion, hence this memorandum on the point. Other points presented in the motion do not present any reason for rehearing. The motion for rehearing is overruled.