ON MOTION FOR REHEARING. In appellant's motion for rehearing it is most strenuously argued that our decision concerning respondent's instruction No. 1 does violence to the rule laid down in the cases of Turner v. Railroad, 78 Mo. 578; Halferty v. Railway Co., 82 Mo. 90, and Cathcart v. Railroad, 19 Mo. App. 113. We thought it would appear without discussion that these cases are clearly distinguishable. However, since appellant still insists that same control here, we now briefly refer to them.
In the Turner case the instruction simply told the jury that if they found that defendant failed to sound a whistle or ring a bell they should find for plaintiff, the other elements being present. The court there said that the statute, of course, does not require both the ringing of a bell and the blowing of a whistle; "either is sufficient, and yet the instruction is predicated upon a supposed legal duty to do both." The instruction in that case nowhere advised the jury that under the law the railroad company was excused if it either rang a bellor sounded a whistle.
Likewise in the Halferty case, the instruction told the jury that it was necessary for the railroad company to ring a bell or sound a whistle as a warning. The court said in that case that since the instruction later on required a finding that there was a failure to sound a whistle concurring with a failure to ring a bell, the instruction was not bad, but in discussing the phrases "failed to sound a whistle," or "failed to ring a bell," it was said that this was held in the Turner case to require the company to give both statutory signals in order to escape liability, and that such was not the law.
In the Cathcart case the instruction likewise authorized the jury to find for plaintiff if the defendant omitted to ring a bell or omitted to sound a whistle, and the Kansas City Court of Appeals there held, on authority of the Turner case, that the instruction was bad, in that same would be understood to mean that the railroad company was required to give both signals, whereas the statute requires that only one be given.
No such instruction as appears in these cases is now before us. From the instruction as set out in the opinion in this case, it will *Page 19 be seen that the jury were plainly told that the law of this State requires either that a bell be rung, etc., or that a whistle be sounded at the crossing, and that if the railroad company failed to do "one or the other" it violated the law. Though the instruction concludes with the direction that a failure to ring a bell or to sound a whistle violated the railroad company's duty, it is explained in the preceding language that it is the duty of the company to either sound a whistle or ring a bell; that in either event it has complied with the law, and that unless it has done one or the other, that is, that unless it has either rung a bell or sounded a whistle, it has failed to comply with the law. The words "neglected to do one or the other," do not mean in ordinary understanding "neglected to do both;" it means doing neither. Especially plain becomes the phrase in this instruction in the light of the preceding statement that doing either is sufficient. In none of the instructions considered in the above cases were the jury told that a compliance with the law was had if either warning was given. We think when the whole instruction is read, no sensible jury could have been misled to understand that the railroad must both ring a bell and sound a whistle to comply with the law.
Motion for rehearing overruled, with the concurrence of the other judges.