
    G. E. REYNER, Respondent, v. KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY, Appellant.
    Kansas City Court of Appeals,
    February 4, 1901.
    1. Eailroads: NEGLIGENCE: DUTY OE ENGINEER. Though an engineer see a team on a traveled way where teams are want to pass, he is not expected to keep a lookout to see if it intends to cross in front of his engine except at a public crossing, but he is presumed to act as if they were not going to do so.
    2. -: -: SITUATION OE DANGER. The general duty of» a railroad to operate its trains with care becomes a duty to no one until he is in a position to have a right to complain of neglect; and so a railroad is not liable to a teamster whose team leaves a beaten way where it is safe and suddenly undertakes to cross the track at an unused place, unless the engineer saw the changed course of the team in time to avert the danger.
    3. -: -: RUNAWAY TEAM. Evidence is reviewed and found insufficient to send to the jury the question of the liability of the defendant for an injury resulting to plaintiff’s team which, became frightened on a traveled way parallel to defendant’s road and ran away across the track colliding with an engine of whose approach plaintiff had knowledge.
    Appeal from tbe Jasper Circuit Court. — Hon. J. D. Perkins, Judge.
    KeVERSED AND REMANDED.
    
      Pratt, Dana & Black for appellant.
    (1) Plaintiffs damages were the result of a mere accident. Plaintiff was not expecting to cross defendant’s tracks where the accident happened. He is not in a position therefore to complain, if there was a failure of signals on defendant’s part. Wasson v. McCook, 80 Mo. App. 483, 488; Railroad v. Payne, 29 Kan. 166. (2) There was no evidence that the switch engine could have been stopped in time to have avoided the accident; neither was there any evidence of any kind to show in what distance the switch engine could have been stopped. Zurfluh v. Railroad, 46 Mo. App. 636, 642; Powell v. Railroad, 59 Mo. App. 626, 633.
    
      Frank L. Forlow for respondent.
    (1) The appellant complains of the instructions asked by respondent, and as given and modified by the court. We contend that the instructions under the evidence were proper and in support of our contention cite the following cases: Kendig v. Railroad, 79 Mo. 207; McPheeters v. Railroad, 45 Mo. 22. (2) Respondent contends that taking into consideration, under the evidence, the place where the accident happened, the distance that the engine was north of Main street, that if the engineer had been looking he could have avoided the injury. If the engineer was not looking, then of course he could not have stopped in time to prevent the accident. Put we contend that it was the duty of the engineer to look. And if he had done this and had been unable to stop his engine in time to have avoided the accident, then in that case, under the evidence, the plaintiff could not have recovered. (3) It was charged by respondent that the accident was caused by the carelessness and negligence of defendant’s servants in operating the engine on its road, and this question was submitted to the jury by proper instructions and we think that in the light of the testimony the jury were justified in finding that the engineer was both careless and negligent in running the engine without looking in the direction in which he was going.
   BROÁDDITS, J.

This suit was instituted before a justice of tbe peace for Jasper county where a judgment was rendered for tbe plaintiff against tbe defendant for $68, wbicb was appealed to tbe circuit court of tbe county where it was tried anew on tbe seventh of July, 1899, and finding and judgment again bad for plaintiff, from wbicb tbe defendant has appealed to this court.

Tbe plaintiff seeks to recover on the ground of negligence on tbe part of defendant’s agents in operating a switch engine in its yards in Webb City.

There was only one witness in tbe case, and that was tbe plaintiff. His evidence is to the effect that in January, 1899, be was driving a two-borse team of bis own, going north between tbe two switch tracks of tbe defendant wbicb were east and parallel to tbe main track; that tbe distance between tbe middle track and tbe main track was about eight feet and tbe space in wbicb be was driving between the other two tracks was twenty or twenty-five feet; that when be got on to tbe tracks be was about one hundred yards south of tbe depot wbicb stands on tbe west side of tbe main track; that there is a street crossing tbe tracks of tbe defendant at right angles just south of this depot; that there was a travelled roadway between tbe two tracks where be was travelling; that at tbe time be went upon tbe tracks of defendant be saw smoke from tbe engine that was north of tbe depot and-tbat as it came down from tbe north, moving slowly, be saw it plainly, as there was nothing between him and tbe engine; that bis team was gentle; that tbe injury to bis team and wagon was received on tbe main or west-track on wbicb tbe engine was moving and near tbe end of a railway coach that was standing on tbe middle track; that tbe horses got scared and attempted to run; that tbe team turned west and south, they being beaded north before they became alarmed. It further appears that the street crossing was forty or fifty feet further north, and that tbe horses when they started to run were close to the end of the coach that stood on the middle track. Plaintiff was thrown from the wagon before the collision with the engine. The engine was close to the horses at the time they turned to run west and were struck by .it just as they were attempting to cross the main track. It does not appear how far the plaintiff with his team was from the middle track when they started west and south.

It will be perceived from the statement of fact, that the middle track which the team crossed was only eight feet from the main track, where the collision happened, and that the team and engine could not have been but a short distance apart when the team turned and started to run west. It does not appear that the engineer in charge of the engine saw the team coming in time to have averted the accident. In fact, just after the occurrence the plaintiff asked him why he did not stop a little sooner, and in response he said he did not see him — that he was looking the other way. Respondent claims that it was negligence upon the part of the engineer in not looking ahead, and if he had been doing so the injury could have been avoided. And his counsel cites Kendig v. Railroad, 73 Mo. 207, and McPheeters v. Railroad, 45 Mo. 22. These two cases' assert the law in relation to the duty that devolve upon railroads at public crossings.

The court in the last cited case merely holds that the right of plaintiff to recover depends upon whether the evidence showed negligence upon the part of defendant charged with the killing of plaintiff’s cow on the crossing of a street of a town. As the evidence in that ease showed negligence, the finding was approved by the Supreme Court. The former case was also a case of negligence where the defendant had killed the plaintiff’s steer at a public crossing. The evidence tended to show that the animal was or could have been seen approaching the crossing, and the defendant was held liable for negligence for not avoiding the collision although the engineer did not see the animal on the crossing in time to avoid it. These two cases apply to animals at large, not in charge or directed by the intelligence of man, and are not in point here.

An engineer while operating an engine along on the main track might have seen plaintiffs team between the middle and east track, where teams were in the habit of being driven, but as that was not a public crossing he was not expected to be on the lookout to see if they intended to cross in front of his engine. He must be presumed to have acted as if they were not going to do so. He was not required to be looking out for such an occurrence. The plaintiff had no right to cross the tracks at said place. In fact, he was not endeavoring to do so, but his team was alarmed and running away and were not under his control. When the plaintiff drove his team among the defendant’s switches he assumed the risks usually and ordinarily attending such a situation. He knew or must have known that there would be more or less switching on the tracks and that his team was liable to be frightened thereby. In fact, he says that he saw smoke from the engine north of the depot when he drove in among the tracks; saw it afterwards come slowly down from the north.

As the engineer was not required to be on the lookout to see that plaintiff did not drive the team upon the track, the company could only be held liable in the event that the engineer, after the team had started to run in the direction of the track in front of the engine, saw it in time to have averted the danger. Here, the only evidence is that he did not see the danger. The general duty of a railroad to operate its trains with care becomes a duty to no one until he is in a position to have a right to complain of neglect. Cooley on Torts, 660; Barker v. Railway, 98 Mo. 50; Maher v. Railroad, 64 Mo. 267; Hallihan v. Railway, 71 Mo. 113; Rine v. Railway, 88 Mo. 392.

It therefore follows that the court erred in refusing defendant’s instruction number one which was a demurrer to plaintiff’s right to recover on the evidence. Cause reversed and remanded.  