
    ROY HAMM, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, et al., Appellants.
    In the Kansas City Court of Appeals,
    November 6, 1922.
    1. TRIAL PRACTICE: Demurrer: Upon Demurrer to Evidence, it is the Duty of Trial Court to Treat the Evidence of Plaintiff as True. In passing upon a demurrer to the evidence, it is the duty of the court to treat the evidence of plaintiff as true.
    2. NEGLIGENCE: Contributory Negligence: Contributory Negligence of Driver of Coal Truck Struck by Train While Crossing Switch Track in a Coal Yard Where it was Customary to Give Warning of Approach Thereof, Held for Jury. In an action to recover damages for personal injuries sustained by the driver of coal truck struck by a train on a switch track in a coal yard while operating the truck slowly through a passageway between a barn and a coal shed, where the evidence showed, that for a long time before the injury it had been the custom of the railroad company to ring the bell and have a man at the crossing ahead of trains to give warning, no warning was given, the plaintiff being aware of the custom had a right to rely upon the same and plaintiff upon approaching track listened for approach of train, but heard nothing and when he had reached a point within the passageway where he could look he did so and then observed the first car in the oncoming train too late to escape being struck, held, that the question of plaintiff’s contributory negligence was for tbe jury, and the trial court was justified in refusing the peremptory instructions.
    3. -: Degree of Care: Truck Driver Approaching Railroad Crossing Required, to Exercise Reasonable Care to Avoid Danger. The degree of care required of a truck driver struck at railroad crossing was that which a reasonably careful and prudent person in his situation would have exercised to avoid dangers incident to a proper operation of trains and cars upon track thereof.
    4. -: Nonfeasance: Misfeasance: Negligence of Engineer in Tailing to Ring Bell as Required by Ordinance, Held Guilty of Nonfeasance Rendering Railroad Liable for Injuries Caused Thereby. Where it was charged and the evidence showed that defendant's engineer, whose negligence, in failing to ring bell as required by ordinance, caused injury to driver of coal truck crossing track, held that the engineer was not personally liable, his negligence constituting nonfeasance, and not misfeasance, for 'which an employee would be directly liable for injuries resulting therefrom.
    5. -: --: -: Master and Servant: Employee Liable to Third Persons for Injuries Resulting from Misfeasance. Where an agent is employed to perform certain work and negligently fails in a certain element thereof, he is guilty of nonfeasance and his principal is responsible for injuries to third persons received through such nonfeasance, but in case of positive misfeasance and not mere omission of duty on the part of the agent or employee, he will be directly liable to a third party for injuries resulting therefrom.
    6. INSTRUCTIONS: Negligence: Instruction Held Properly Refused as Excluding the Very, Element upon Which Plaintiff Had a Right to Rely for Recovery. In an action for injuries received by a truck ■ driver struck by train while crossing switch track in coalyard of his employer, where there was evidence that there was an ordinance requiring the ringing of the bell and that it had been the custom of the defendant railroad to have a man at crossing to warn persons of approach of trains, an instruction charging the jury that there was no duty upon defendants to flag the crossing, held properly refused as excluding from consideration of jury, the very element in plaintiff’s cause upon which he had a right to rely for recovery.
    7. APPEAL AND ERROR: Harmless Error: Where the Court Directed Withdrawal of Objectionable Evidence and Instructed Jury to Disregard it, the Defendants’ Rights Were not Prejudiced. Court did not err in overruling a motion to discharge the jury because of oral evidence of a'former switchman to the effect that defendant, railroad company, had issued a written bulletin requiring switch-men'to flag crossings similar to’ that at which plaintiff was injured, where the court directed the withdrawal of such evidence and instructed the jury to disregard it, thus removing any possible prejudice to defendants’ rights.
    8. INSTRUCTIONS: Proximate Cause: Instruction Held not Erroneous in Failing to Require Jury to Find that Failure to Ring Bell was Proximate Cause of Injury. An objection that an instruction failed to require jury to find that failure to ring bell was the proximate cause of injury, to driver of truck at crossing, held not tenable as th<? Instruction required jury to find defendants negligently operated the train over crossing without causing bell to be rung and that by reason of failure to sound the bell, plaintiff drove his truck through the passageway toward track and was struck.
    9. APPEAL AND ERROR: Cumulative Evidence: Opinion Evidence Improperly Admitted Held Harmless in View of Testimony of Physicians to Same Effect. Testimony of plaintiff’s mother that plaintiff “suffered awful bad,” and “he was a very sick man,” was a conclusion of the witness and improper, but in view of the fact that three physicians testified to plaintiff’s condition, the testimony was merely cumulative and not prejudicial.
    10. COMPROMISE AND SETTLEMENT: Joint Tort-feasor: Refusal to Allow Defendant to Show Plaintiff had Settled with Employer not a Party Defendant nor Shown to be Joint Tort-feasor, Held Proper. Refusal to allow defendants to show that plaintiff had compromised and settled his claim against his employer who was not a party defendant, nor shown to be a joint tort-feasor, held proper.
    ON REHEARING
    11. EVIDENCE: Judicial Notice: Courts Take Judicial Notice tjjat Railroads Were Being Operated by Director General During Particular Period of Time.' Courts take judicial notice of the fact that the railroad company was not operating engine and cars on the 15th day of October, 1918, but that they were being operated by the Director General of Railroads.
    12. PLEADING: Petition: After Verdict Petition Construed Liberally in Favor of Plaintiff. After verdict the petition must be construed liberally in favor of plaintiff.
    Appeal from the Circuit. Court of Buchanan County.— Hon. L. A. Vories, Judge.
    Affirmed {in part) Reversed {in part).
    
    
      Won. E. Stringfellow for respondent.
    
      H. J. Nelsoot, J. G. Trionble and E. M. S-pencer, for appellants.
   ARNOLD, J.

This is a suit in damages for personal injury. Plaintiff was an employee of the Central Coal & Coke Company and his duties consisted in driving an auto-truck and in loading and unloading coal into and from said truck. The yards of the Central Coal & Coke Company at St. Joseph, Missouri, are located a short distance north of the Union Station and adjacent to the railroad yards maintained by defendant railroad company.

The defendant Chicago, Burlington & Quincy Railroad Company is a corporation duly organized and existing and, at the time of the injury in question, owned, maintained and operated a line of railroad through the city of St. Joseph, with spur tracks, side tracks and switch tracks at various points in said city. One of said tracks ran north and south, east of Sixth. Street and parallel thereto, from the yards of said railroad company to the coal yard of one John W. Bruce at Sixth and Olive Streets, the said track passing through the property leased to, and occupied by, the Central Coal & Coke Company.

At the time the alleged injury defendant William G. McAdoo was Director General of Railroads of the United States. Defendant Millard F. Hughes was a locomotive engineer in the employ of defendants railroad company and William G. McAdoo, Director General, and was operating the locomotive attached to the train which caused the injury.

The yard of the said Coal Company is 600 feet in length and 115 feet in width, divided into two narrow tracts from north to south, called the east and west yard. The barn and coal sheds form the dividing line, the barn to the north and the coal sheds to the south, extending almost the entire distance from the north to the south lines.

Defendant railroad maintained a switch track on the east side of said barn and coal sheds over which cars are switched to the coal yards of the Bruce Coal Company. The only opening in this long dividing line is about the center of the yard, and consists of a passage.way, eleven feet two inches in width, between the bam and the coal shed. It is necessary to go through this passageway in going from one side of the yard to the other and to cross the switch track. The railroad company also maintains a stub track, situated in the east side of the yard of the Central Coal & Coke Company, The coal shed opens to the east and the barn to the west.

All coal for delivery is loaded into the trucks and wagons from the east yard, either from the coal sheds or the stub track whereon loaded cars are set. The entrance for wagons and trucks is at the northeast comer of the yard; thence across to the office at the north end of the west yard where orders are received for delivery. The wagons and trucks then proceed south in the west yard, cross through the passageway to be loaded from the sheds or the cars placed on the stub track. The east track was for the exclusive use of the Central Coal & Coke Company (hereinafter called the Coal Company.) The construction of the yard as above described had existed for many years and the manner of operation had been as indicated.

The evidence shows that the west rail of the west track was located about five feet from the 'east line of the coal shed and about six feet from the barn, so that in switching cars on that track, the sides thereof were within about eighteen inches of the shed, and the cab of the switch engine almost touched -the side of the shed. The evidence also shows there was no schedule; trains were irregular and infrequent and it had been the custom for many years for defendant railroad company to have a man at said crossing ahead of trains to warn any employees of the Coal Company who might be about to drive through said opening and upon said crossing.

On October 15, 1918, after having delivered two loads of coal, plaintiff returned to the yard, in accordance with his orders and the custom, drove in at the-northeast gate, across to the west yard and office and obtained' an order for his next load. He then proceeded south in the customary manner and turned east to pass through the aforesaid opening between the barn and the coal shed, to obtain the load from a car which was set on the stub, or east track. Plaintiff testified he was running slowly, just barely moving, and that his truck engine was making very little noise; that at a point twenty feet west of the track, he listened carefully for the sound of a train, but heard no bell ringing, or other sound indicative of an approaching train, and saw no railroad employee at the crossing. Thereupon, he drove through the opening and as soon as he got through it, he looked to the right and saw the train approaching a few feet away; he immediately turned his truck to the left in an attempt to avoid the train, but was caught by the box over the journal on the left side of the first car, just at the point of the auto truck where plaintiff was seated, and that he and the truck were mashed through the side of the barn, and plaintiff received a permanent injury therefrom.

The petition alleges that plaintiff was in the exercise of proper care and caution in approaching said crossing and charges defendants were negligent in that they “carelessly and negligently operated a locomotive engine and cars, going in a northerly direction, along and over said track, against, upon and over the auto-truck in which plaintiff was riding, and carelessly and negligently drove said engine and cars along and over said track at said point without causing any bell upon the engine to be sounded, and without giving any signal or warning of any kind or character in approaching said point and while passing along and over said track, and carelessly and negligently drove said engine and cars along and over said track without having any person on the forward end of said engine and cars as they were being moved northward, and without sending a man ahead of said engine and cars to said passageway or crossing, and without having a man stationed at said crossing for the purpose of warning the. employees of said Central Coal & Coke- Company who might be about to come through said passageway or across said crossing . . .”

The defendant railroad company in its answer admits that during the month of October, 1918, William G. McAdoo was Director General of Railroads, but denies generally each and every other allegation in the amended petition. And as a special defense alleges that “the line of railroad, tracks and switches described in' plaintiff’s amended petition was not in the possession of and was not being operated by this defendant during the times therein mentioned, but was in fact in the possession of and being operated by the United States Government through its duly appointed agent and officer, the Director General of Railroads . . .” The answer further pleads that on the 26th day of December 1917, the United States Government took possession of all the property of defendant Chicago, Burlington & Quincy Railroad Company and operated the same.

The answer also specially pleads General Order No. 50, of the Director General of Railroads of October 28, 1918, directing that all suits sought to be prosecuted upon causes of action accruing during Government control and possession of railroads shall be prosecuted against the said Director General of Railroads, and in no other manner; that afterwards, to-wit, on the--day of January,-1919, the said Director General issued a further order known and designated as Order No. 50-a, providing that all actions at law growing out of injuries to persons arising since December 31, 1917, and growing out of the possession, use and control or operation of any railroad by said Director General, which action, but for Federal control, might have been brought against the carrier company, shall be brought against,the Director General of Railroads and not otherwise; and that the pleadings in all such actions then pending might, on application, be amended by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom. The answer further pleads contributory negligence.

The separate answer of defendant, Director General of Railroads, admits that he was the duly appointed and acting Director General of Railroads, that he was in possession and control, and operating the lines of the defendant railroad company during the month .of October, 1918, as alleged in the petition, and generally denies all other allegations therein contained. There is also a plea of contributory negligence.

The answer of defendant Milliard F. Hughes was a general denial.

Under the pleadings thus made the cause went to trial before the court and to a jury, resulting in a verdict and judgment in favor of plaintiff and against all the defendants, in the sum. of $2500. Motions for new trial and in arrest, in behalf of all the defendants, were duly filed and by the court, overruled. Defendants appeal.

Assignment of error No. 1 urges that the court erred in refusing to give the instructions offered by the defendant railroad company in the nature of a demurrer to the evidence, at the close of plaintiff’s case, and again at the close of all the evidence. The next two assignments of error refer to the refusal of the court to give similar instructions in behalf of the other defendants and, as they involve the same points, they will be considered together.

The basis of defendants’ contention in this respect is that plaintiff was guilty of contributory negligence, as a matter of law. In passing upon a demurrer to the evidence, it is the duty of the court to treat the evidence of plaintiff as true. This rule is so firmly established as to render citations in support thereof unnecessary. Applying this rule to plaintiff’s testimony in this case, we are unable to say plaintiff was guilty of negligence as a matter of law. His testimony tends to show that, on approaching the passageway between the barn and the coal shed, plaintiff was driving very slowly and that he brought his truck almost to a dead stop; that he listen-f or the approach of any train on the track, and that when he had gone to a point, within the passageway where he could look for the approach of a train, he did so and then observed the first car in the oncoming train.

The testimony further tends to show that for a longtime it had been the custom of the railroad company to have a flagman at. this crossing, or to have a brakeman go forward to that-point to see that no one crossed when a train was about to pass. Plaintiff testified that he was aware of this custom. We think he had a right to rely upon such custom and that his actions at the time and immediately preceding were most natural. The fact that he did not alight from his truck, go forward and make observations as to the possible approach of a train may not be charged to him as contributory negligence. The degree of care required of him was that which a reasonably careful and prudent person in his situation would have exercised to avoid the dangers incident to a proper operation of trains and cars upon the tracks. [Lang v. Railway Co., 115 Mo. App. 489; Pinney v. Railway Co., 71 Mo. App. 577; O’Connor v. Railway Co., 94 Mo. 150; Baker v. Railroad, 122 Mo. 533; Baker v. Railway Co., 147 Mo. 140; Stevens v. Railway, 67 Mo. App. 356; Elliott v. Railroad, 105 Mo. App. 523.] The question of contributory negligence was for the jury and the trial court was justified in refusing to give the peremptory instructions offered by defendants.

The defendant railroad company further urges that its demurrer should have been sustained for the additional reason that, as the railroad company was in possession and under the control of the Director General of Railroads of the United States, and the employees thereof, under the direction of said Director General, it may not be held liable for torts committed by its employees while under such control.

We think the law on this point is well settled. It must be conceded that plaintiff would be entitled to but one satisfaction in the event-that he obtained judgment against both the railroad company and the Director General. It has been held that it was' incumbent upon the Director General to defend such suits and to pay any judgment obtained out of bis receipts. Section 12 of tbe Act (March 21, 1918) provides that moneys received by the Director General shall not be covered into the treasury of the United States, but shall remain in the custody of the same officers and the accounting thereof shall be in the same manner as before Federal control. It is reasonable to conclude that the same action will follow in the event of recovery in the case at bar as if the railroad company had not been under government control, and the matter of adjustment is between- the government and the railroad company.

In Johnson v. McAdoo, 257 Fed. 757, it is said:

“I think it was the purpose of Congress in adopting the act to allow litigants to sue the .railroad companies, just as they had theretofore been able to do, and in such courts as have jurisdiction under the general law. [See Postal Tel. & Cable Co. v. Call, 255 Fed. 850,--C. C. A. --; Jensen v. Lehigh Valley R. R., 255 Fed. 795.]”

The decisions are all one way and we need go no further with this point. Our ruling is against the position of defendant railroad company thereon.

Under point. 3, defendants charge error in the overruling of the demurrer to the evidence offered by defendants ’ engineer Hughes, for the reason that the negligence of Hughes, if any, constitutes nonfeasance and not misfeasance, in Ms failure to ring the bell, which failure caused plaintiff’s injury,-and that employees are not individually liable to third parties for nonfeasance.

We think this point is well taken. It was charged, and the testimony of plaintiff tends to show that the defendant engineer negligently failed to ring the bell as required by ordinance. The principle is well settled that where an agent is employed to perform certain work and negligently fails in a certain element thereof, he is guilty of nonfeasance and his principal is responsible for injuries to third persons received through such nonfeasance. But in case of positive misfeasance -and not mere omission of duty on the part of the agent or employee, he will be directly liable to a third party for injuries resulting therefrom. [Harriman et al. v. Stowe, 57 Mo. 93.]

In McGinnis v. Railway Co., 200 Mo. 347, 357, the Supreme Court very tersely announces the rule applicable to this question, saying:

“There are two classes of cases falling under this doctrine, one wherein the master is held liable for the nonfeasance or negligent failure of the servant to perform a duty, and the other where the master is held liable for the misfeasance or negligent performance of a duty. In the one case the servant, simply negligently fails to do what should have been done, and in the other he negligently does what should have been done and properly done.

“In the first class of cases, the servant is not liable to third parties, but the master under the rule of respondeat superior is liable. In the second class both are liable to third parties. The servant because he actually does the wrongful act occasioning the injury. The master, because under the rule of respondeat superior, he is liable for the negligent act of the agent done within the scope of his employment, in the course and performance of his master’s business. In either case the master has recourse upon the servant as for breach of duty to the master. ’ ’

Applying this rule to the.facts herein, as shown by the evidence, it is clear the- court erred in overruling the demurrer to the evidence offered by defendant Hughes.

Defendants complain, under point 4, that the court erred in refusing to give defendants’ instruction “G” which charged the jury that there was no duty upon defendants, under the law, to flag this kind of a crossing.

■ We fail to see in the petition that there was any charge of a duty resting on defendants to maintain a general watchman at this crossing, or that an employee was required to run ahead of the train to protect the crossing. The amended petition alleged that defendants negligently approached this particular crossing with the train, without giving any warning of any kind of its approach; that there was an ordinance requiring the' ringing of the bell, and that it had been the custom of the defendants to have a man at this crossing to warn, persons of the approach of trains.

Plaintiff’s evidence tended to prove -these allegations, and we therefore hold that the court’s refusal to give instruction “Gr” was not error. This testimony went to the question of due care exercised by defendants, and to have given the instruction would have been to exclude from the consideration of the jury the very element in plaintiff’s cause ijipon which he had a right to rely for recovery. Defendants ’ citations, on examination, are found not to be in point.

Defendants further complain that the trial court erred in overruling a motion to discharge the jury because of the oral evidence of a former switchman, admitted over the objection'of defendants, to the effect that defendant railroad company had issu'ed a written bulletin requiring switchmen to flag crossings of this character.

It cannot be conceded that oral testimony is admissible to prove the contents of a written instrument, the instrument itself being the best evidence. The record shows this testimony was elicited during the progress of the inquiry as to the custom of defendants .in regard to guarding this crossing. Its admission was not harmful since the court directed the withdrawl of such evidence and instructed the jury to disregard it, thus removing any possible prejudice to defendants’ rights.

This situation is covered in Harrison v. Electric Light Co., 195 Mo. 605, 635, where it is said by Marshall, J.: “When a trial court becomes satisfied that it has erred in the admission of testimony, all that it can do is to instruct the jury to disregard it, and the presumption is that the jury did disregard it.” The court held, in effect, in that case that to hold otherwise would be to establish a rule of practice that when a court made a mistake and admitted incompetent testimony, and after-wards discovered that it had done so, it could not effectually correct the error by instructions to the jury, but that in order to remove the sting of the error, it would have to discharge the jury and award a new trial before a new venire.

Under point 6, defendants urge that there was error in plaintiff’s instruction No. 1, because it requires the jury to find that the railroad company and the director general of railroads were jointly operating the railroad track in question and that defendant Hughes was j ointly employed by them.

Our ruling above to the effect that the railroad company and the director general were properly joined covers this objection, and further discussion of this point would be useless. Another objection to this instruction is that it failed to require the jury to find that the failure to ring the bell was the proximate cause of the injury. We think this objection is not tenable. The instruction-required the jury to find that defendants negligently operated said train along said track and over the crossing,’without causing the bell to be rung; and that by reason of the failure to sound the bell plaintiff drove his truck through the passageway toward said track and was struck. There wa's no proof that plaintiff drove onto the track, and this was not alleged in the petition.

Complaint also is directed against the ruling of the trial court in permitting plaintiff’s mother to testify that plaintiff “suffered awful bad,” and “he was a very sick man.” This clearly was a conclusion of the witness and was not proper, but in view of the fact that three physicians tesified to plaintiff’s condition, we hold this testimony of the mother was merely cumulative and defendants’ rights .were not prejudiced thereby.

Defendants’ objection that the court erred in refusing to give their instruction “ H ” which charged that it was the duty of plaintiff when approaching the track in question, to stop before proceeding, if his view was obstructed, already has been decided adversely to this contention in what we have said herein.

Finally, it is contended that the court, erred in refusing to allow defendants to show that plaintiff had compromised and settled his claim against the Central Coal & Coke Company .for this injury. The trial court, properly refused to admit this testimony on the ground that there was no evidence showing that the Coal Company was a joint tortfeasor. Further it may he observed that the Coal Company was not a party defendant and the evidence fails in any way to connect it as a joint tortfeasor. The obvious purpose of proposing the evidence was to suggest that plaintiff already had been compensated for the injury, wholly or in part. The questions obviously were improper and there was no error in refusing to admit the evidence designed to be elicited by them.

For the reasons above stated, the judgment against. defendants, the Chicago, Burlington & Quincy Railroad Company and the Director General of Railroads, is affirmed, and reversed as to defendant Millard F. Hughes.

All concur.

ON REHEARING.

BLAND, J.

A rehearing was granted in this case on account of the fact that we had overlooked that plaintiff had dismissed as to defendant Railroad Company while this ease was pending in the Supreme Court and that by an order of that court James C. Davis, Agent designated by the President under the Transportation Act of 1920, was substituted as a party defendant in the place of the railroad company and the director general. Therefore, all of that part of the foregoing opinion by Arnold, J., dealing with the liability of the railroad company is immaterial and should be disregarded.

However, we have again gone carefully over the points made by the remaining defendants and find that the conclusions reached in .the foregoing opinion were correct. Much stress is laid upon the testimony of plaintiff that the front wheels of his truck were upon.the track before he looked for an approaching train. The evidence shows that the front wheels were four feet from the front end of the truck and that plaintiff was seated upon the truck at a point located midway between the front of the truck and the front wheels. If the front wheels of the truck were upon the track when plaintiff first looked, he must have been two feet from the track while the evidence shows that his view was unobstructed from ,a point slightly over five feet from the track, and, therefore, he did not look as soon as he could.

It is true that plaintiff testified when he first looked that his front wheels were upon the track. However, there is evidence from which the jury could say that plaintiff was mistaken in this statement. The distance between the coal shed and the track was so small that it would be easy for plaintiff to make a slight error in regard to this matter in view of the position of the seat upon the truck in relation to its front and front wheels. There was ample evidence that the front wheels of his truck did not reach the track. As stated in the former opinion, there was evidence that the projecting box over the journal on the left side of the first car, which was south of the front end of thetruck, struck the truck. Had the front wheels of the truck been upon the track, some portion of the front end of the car would have struck the automobile. There was ample evidence from which the jury could find that no part of the truck ever reached the track. In plaintiff’s deposition he testified that he looked when the front end of his truck was two feet from the track and that he was sitting about three feet from the front of the truck. There was substantial evidence from which the jury could find that plaintiff looked as soon as possible and at that time it was too late to avoid the collision. Of course, the jury had a right to resolve conflicting testimony in favor of plaintiff. [Bobbitt v. United Rys. Co., 169 Mo. App. 424, 429; Cravens v. Hunter, 87 Mo. App. 456; Eidson v. Met. St. Ry. Co., 209 S. W. 575; Downs v. Racine-Sattley Co., 175 Mo. App. 382.]

It is insisted that there is no evidence that when plaintiff listened immediately before driving through the opening between the barn and the coal shed, he listened carefully. Plaintiff was asked what he did in regard to listening for trains and he answered “I listened.” He did not say that he listened carefully but from all of his testimony, and that of the man who was to his rear, the jury could find that the listening was care_ fully done. Plaintiff had his head out of the truck, was going slowly, and there was no noise sufficient to interfere with his hearing.

It is contended that plaintiff could have used a crossing located at the north side of the- yard instead of using a dangerous crossing where he was injured; that if he came into the yard at the northeast corner, he was then on the east side of the track and should have staid on that side; that it was not necessary for him to drive his truck across the track in order to reach the office but that he could have walked across; and that if he came in at the northwest corner of the yard, he could have gone to the office and used the crossing north of the bam, which was less dangerous. We think there is no merit in this contention. The crossing where plaintiff was injured was a much used one, one that he and others had used daily and one which he had a right to cross if while doing so he used ordinary care. No doubt there were a great many things that plaintiff could have done or not done which would have placed him at some other point at the time he was run into. What bearing this has upon the negligence of the defendant and the contributory negligence of the plaintiff we are unable to see.

It is pointed out to us that the petition alleged that it was the custom of the railroad compqoiij to send a man ahead to “flag” the crossing. There is no allegation that it was the custom of the director gener of railroads to do these things. However, this allegation in' the petition as to the custom of the railroad company had reference to the date of plaintiff’s injury, which was on the 15th day of October, 1918, and it is further alleged that the director general of railroads on said day was negligent in failing to send a man ahead of the engine and cars for the purpose of warning. Courts take judicial notice of the fact that the raiload company was not operating this engine and cars on the 15th day of October, 1918, but that they were operated by the director general of railroads. [Yarde v. Hines, 238 S. W. 151.] After verdict the petition must be construed liberally in favor of plaintiff. In view of this rule we think that the petition alleges a cause of action against the director general for failing to follow a custom in existence upon that day.

Other points are. again insisted upon by defendants which are fully covered and answered in the original opinion and need not be further considered, for the reason that there is clearly no merit in them. One of these points is that there is no evidence of the usage or custom pleaded. While it may be that the preponderance of the evidence was that there was no such usage or custom, there was substantial evidence that there was and the issue raised by this conflict in the testimony was decided in plaintiff’s favor by the jury.

The judgment against the defendant, James O. Davis, Agent designated by the President under thje Transportation Act of 1920, is affirmed, but it is reversed as to the defendant, Miller F. Hughes.

All concur.  