ON MOTION FOR REHEARING. The plaintiff, respondent herein, in motion for rehearing urges that we are in error as being in conflict with the Supreme Court, in respect to our conclusions as to instruction number one (No. 1) given on behalf of plaintiff.
Our conclusion, as stated in the opinion, is that as appearing in the context, "Coming into a position of imminent peril, without any qualification as to obliviousness, we conclude gives an entirely too roving commission to the triers of facts."
The contention is made that there is error, in that the opinion is to the effect that obliviousness must be submitted in an instruction under the humanitarian doctrine, when such fact is alleged in the pleadings.
The language used in the opinion of this court states no such abstract principle.
If a defendant's answer admits that plaintiff was oblivious, failure to mention obliviousness in the instruction is not error. [Milward v. Wabash Ry. Co., 232 S.W. 226.]
If other instructions cure such defect, then omission in principal instruction is not reversible error. [Larey v. Railway Co., 64 S.W.2d 681.]
We conclude that the plaintiff has not distinguished, as between the case at bar and Crockett v. Railways Co., 243 S.W. 902. In the Crockett case, the word oblivious was contained in the instruction. *Page 470 The point raised by the Railway Company in that case was as to the evidence showing obliviousness.
It will be noted that the opinion, in the above case, distinguishes as to Kamoss v. K.C. W.B. Ry. Co., 202 S.W. 434, and Haines v. K.C. Rys. Co., 203 S.W. 631.
The issue in Bruns v. United Rys. Co., 251 S.W. 760, cited in the plaintiff's motion, involves issue of fact and not error in instruction.
The plaintiff cites Schmitter v. United Rys. Co., 254 S.W. 629. We find no such case anywhere in the volume cited.
The plaintiff cites Koontz v. Wabash Ry. Co., 253 S.W. 413. The instruction therein used the term oblivious and the question is as to evidence to support.
In Allen v. Purvis, 30 S.W.2d 196, cited by plaintiff, this court held that the omission of obliviousness in the principal instruction did not constitute error. In the above case no question of coming into a position of imminent peril was involved. In that case the plaintiff had stopped in the direct line of approach of the on-coming vehicle. In other words, was in a position of imminent peril. To the end that our opinion might be understood in that case as not being in conflict with the Kamoss and Bruns cases, supra, we included the instruction in full in the opinion.
By a study of the Allen case, supra, it will be clearly shown that there was no roving commission given to the jury.
In Woods v. Moffit, 38 S.W.2d 525, cited by the plaintiff, no question of instruction is involved. The case holds that, where obliviousness is admitted, no proof of same is required.
In the interpretation of court opinions, as well as other writings, the meaning must be gathered from the whole context.
As before stated, this court does not in its opinion in this case lay down the rule that, in all cases submitted on the humanitarian rule, the plaintiff's instructions must specifically use the term "oblivious.
There is language in the Allen case, supra, which, if followed, would justify the conclusion that the defendant, in its answer herein, admits obliviousness when the deceased did enter the danger zone. However, the instruction in the Allen case expressly requires the jury to find each and every fact constituting the basis of recovery from the evidence in the case.
In the Allen case, the question of obliviousness was not a contested issue from the fact that there was no evidence of any warning. In the case at bar the issue of warnings and signals is presented in the pleadings and in the evidence.
While the issue of warning is eliminated as an element fixing liability under the humanitarian rule, still the evidence of such may have bearing upon the issue of obliviousness as to the time when the deceased was coming into a position of imminent peril. In the *Page 471 trial of this case, the engineer testified that as the boy was coming toward the tracks, and some twenty feet away, he was hauling his wagon. Others testified that he was pushing the wagon, one knee in the wagon and the other leg propelling, and that his head was down. The engineer testified to the effect that he did not realize that the boy was going upon the track, until it was too late to stop the train.
There is no issue of obliviousness as to the time the engineer knew, or by due care could have known, the boy was going on the track. However, we conclude there is an issue of obliviousness as to the time the boy was seen coming toward the track or was coming into a position of imminent peril.
The approaching to a railroad crossing by a person does not call for action, unless there is something in the approach that indicates obliviousness and that the person approaching is oblivious to the on-coming train.
The allegation of negligence, in the defendant's answer is, "Negligence and carelessness of the deceased in failing to look or listen for an approaching train, and in going upon the railroad track immediately and directly in front of the movingtrain." (Italics ours.)
There is no admission whatever as to deceased approaching the track or "coming into a position of imminent peril." The testimony being contradictory, as to the approach of the deceased, we conclude presents an issue of fact as to his being oblivious.
If defendant's answer had alleged that deceased failed to look and listen as he was coming into a position of imminent peril, or as he was approaching the track, then such would have been an admission of obliviousness as to that question and then the rule as laid down in the Allen case, supra, would have applied.
In the Allen case it is said:
"Where it appears at the trial that a given fact is not treated as a real disputed question, the court may assume the existence of such fact and omit it from plaintiff's instruction. [Dickensheets v. Patrick, 217 Mo. App. 171, 274 S.W. 891, 893.]"
It is further urged that, as the word oblivious was presented in the plaintiff's instruction number two (No. 2), that the defect in instruction number one (No. 1) is cured. Instruction number two (No. 2) was presented as to the watchman and as said instruction was declared as error, for reasons given in the opinion, we cannot give same probative force to supply deficiency in instruction number one (No. 1).
Our conclusion, as to error in instruction number one (No. 1) in the case at bar, is not based upon the omission of the word "oblivious" alone, but is based upon our conclusion that to predicate recovery on the mere coming into a position, without any requirement *Page 472 as to obliviousness and without any other instruction requiring any other finding of fact constituting the basis of recovery, from which obliviousness could be inferred, is a too roving commission.
Rehearing denied. All concur.