The opinion
ON MOTION FOR REHEARING.
Appellants in their motion for rehearing say that we appear to have considered the case as though it were here on certiorari because we adopted the majority opinion of the Court of Appeals and said it was not in conflict with the opinion of this court in Tanner v. Mo. Pacific Railroad Co., 161 Mo. 497 , 61 S.W. 826 . We did not consider or treat the case as a certiorari proceeding but, as stated in our opinion, adopted the opinion of the Court of Appeals as our own because after due consideration we concluded it correctly disposed of the questions presented on the appeal. In so doing we were not without precedent. The same course was followed in Cooley v. Kansas City, P. G. Railroad Co., 149 Mo. 487 , 51 S.W. 101 , which was certified to this court by the Kansas City Court of Appeals because of conflict between its decision and a prior decision of the St. Louis Court of Appeals and was here for disposition on the merits.
It is urged that we did not take into consideration certain cases cited by appellants in their brief filed here which were not cited in their brief in the Court of Appeals and, therefore, not considered by that court, viz.: Giardina v. St. L. M.R. Railroad Co., 185 Mo. 330 , 84 S.W. 928 ; Farris v. St. L. S.F. Railroad Co., 167 Mo. App. 392 , 151 S.W. 979 ; Boyd v. Wabash Western Railroad Co., 105 Mo. 371 , 16 S.W. 909 , and some cases from other jurisdictions. We examined those cases but we think they are distinguishable in their facts from the instant case and at least no more in point than the Tanner case, if as much so. We discussed and distinguished the Tanner case in the original opinion.
Appellants say the record does not warrant the statement in our opinion that when a special train was to come through it was the custom and practice of the railroad company to notify the workmen employed about the overpass of the fact and the time when such special train would come along. One of those workmen, a witness for plaintiff, *Page 718
testified that defendants' section foreman "always came by on his motor car and told us when any special trains would be through." In a deposition given by defendant Fritts he was asked what information was given to railroad employees when an unscheduled train was to be run. He said, "The section foreman before going to work in the morning gets in touch with the dispatcher (train dispatcher) through the operator on the `phone and is given what we term a line up as to train movements for that day." He said that was the usual and customary practice; that the information was thus given so that the employees would know what train movements were to be made during the day. Fritts' deposition was introduced by plaintiff and was admitted only as against him, the jury being instructed not to consider it as against the railroad company. Perhaps for the sake of accuracy, we should have said in our opinion that it was the custom and practice of the railroad company's section foreman to notify the workmen employed about the overpass when a special would come along and to that extent the opinion may be considered modified. However, said foreman must have obtained his information from officials of the railroad company having charge of train movements. How else could he have gotten it? And in any event the fact that he did give such information to the workmen, or to their foreman by whom it was transmitted, as intended, to the workmen, was a fact to be considered in determining deceased's alleged contributory negligence. It would not be unnatural for deceased to have regarded the information so received as authoritative.
The motion for rehearing is overruled.