Boland v. St. Louis-San Francisco Ry. Cl
| Decision Date | 24 May 1926 |
| Docket Number | 25481 |
| Citation | 284 S.W. 141 |
| Parties | BOLAND v. ST. LOUIS-SAN FRANCISCO RY. CL |
| Court | Missouri Supreme Court |
E. T Miller, A. P. Stewart, and A. E. L. Gardner, all of St Louis, for appellant.
Ralph & Baxter, of Clayton, and Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.
This is a suit for personal injuries resulting from the collision of an automobile with a locomotive engine and train of cars at a railroad crossing. Defendant's railroad in running through St. Louis county passes through the little town of Eureka in an approximately east and west direction. Adjacent to the railroad right of way on the north and paralleling it a public road runs westwardly from Eureka. A half mile west of the town there is a private farm crossing which affords a passage way from the public road to a farm known as the 'Magazine farm,' which lies immediately south of the railroad. The crossing is also known as 'Magazine crossing.' At this crossing there are two railroad tracks. The north track is used for west-bound trains and the south for east-bound. The crossing is 16 feet in width and constructed in all respects as though it were a public crossing. The two railroad tracks at this point are 9 feet apart. The distance from the south side of the public road at the point where you turn to cross the railroad to the north rail of the south track is 47 feet. The tracks are from 3 to 4 feet higher than the public road. The approach from the road is constructed of gravel and cinders, and rises by easy grade until the level of the tracks is reached. There is a like descent on the south side.
The Magazine farm lies along the Meramec river. At the time of the happening which gives rise to this controversy the farm was, and for many years had been, used in part by the community as a park or playground. Picnics, dances, and public gatherings of all kinds were held there in almost continuous succession during the summer and fall months. A number of clubhouses and a girls' recreation ground were located on it, and the local post of the American Legion maintained there their hall or place of assembly. The private crossing just referred to was used by the public as means of access to the farm, and the defendant in approaching it with its trains customarily gave the signals required for public crossings.
On November 11, 1922, a dinner was to be given on the Magazine farm to the local members of the American Legion. The food had been donated by the citizens of Eureka, and a number of women had volunteered to prepare and serve it. One Hance, a business man of the town, as his contribution to the event, undertook to convey to the farm the women who were going out in advance to prepare the dinner. Pursuant to that arrangement he took his automobile, a touring car, gathered up four women and started to the farm, leaving town about 9:20 a. m. One of his passengers was plaintiff, then a high school girl 17 years of age. She sat at his right on the front seat; the three others on the back seat. Hance had owned and driven his car for something like three years; it does not appear that plaintiff had ever driven an automobile. When they arrived at Magazine crossing they found it obstructed by a west-bound freight train, which was standing on the north track. The train consisted of 30 or more cars, and the greater portion of it was west of the crossing. There was no caboose, the rear car being loaded with coal. Hance brought his automobile to a stop within 12 or 15 feet of the standing train. After he had waited three or four minutes the freight train began moving west; as soon as it had cleared the crossing Hance put his car in motion, and started across, moving at the rate of three or four miles an hour. When the front part of his machine passed onto the south track, the front wheels being between the rails, it was struck by an east-bound passenger train running at the rate of 35 or 40 miles an hour. The three occupants of the automobile who sat on the back seat were killed; plaintiff and Hance were severely injured, plaintiff to such an extent that she remained unconscious for several days.
From Magazine crossing the railroad is straight and visible for quite a distance in both directions. Hance testified that before he started his machine to go over the crossing he looked both ways and saw no train approaching, but he admitted that his view to the west was completely obstructed by the slowly moving freight train. He never in fact at any time saw the passenger train; he is able to recall that there was a crash, and then his memory becomes blank. Plaintiff testified that she remembers leaving home, but nothing more until she awoke in a hospital. A brakeman was sitting on the rear end of the last car of the freight train, and as it passed over the crossing he observed that the driver of the automobile was preparing to start his car. He thereupon hallooed and motioned to the occupants of the car in an effort to warn them of the approaching passenger train, but he was unable to attract their attention. He testified that the driver and the girl on the front seat were at that time looking straight ahead and continued to so look until struck by the train. Both Hance and plaintiff were perfectly familiar with the crossing and the use made of the double tracks, and they both knew that the passenger train which subsequently struck them was due to arrive in Eureka [284 S.W. 143] at 9:35. According to his testimony, as they approached the crossing and while they were waiting for the freight train to move out of their way, the women in the car were talking; nothing, however, was said with reference to the passenger train, as to whether it was due or whether it had gone; nor was there any suggestion on the part of the plaintiff or any of the others as to the advisability of waiting until the freight train moved a sufficient distance to enable them to see whether a train was approaching from the west; in fact, no word of caution of any kind was uttered by any of them.
While the passenger train was still quite a distance from the crossing both the engineer, who was in the south side of the cab, and the fireman, who was in the north side, saw the freight train on the north track, and the engineer knew that because of the freight train neither he nor the fireman could see whether there were any vehicles standing north of the crossing waiting to pass over as soon as it was cleared by the freight train. The engineer, owing to his position, never saw the automobile at all; the fireman first saw it at the moment it came out from behind the freight train, and the passenger train was then but 75 feet away. No effort was made to check the speed of the train or to stop it until after the collision. As the passenger train approached the crossing it was coasting, that is, the engine was not 'working steam,' and consequently there was no noise as from the exhaust, and, according to plaintiff's evidence, no signal of the approach was given either by bell or whistle. According to the engineer, however, he had done little but whistle while his engine was coming from a point a mile west to the place where the collision occurred, so numerous were the intervening crossings. He further testified that during the same time the bell, which was operated by an automatic device, was ringing.
The cause was submitted to the jury on an issue of negligence tendered by the petition as follows:
'That defendant did not, when approaching said crossing, ring the bell or blow the whistle on said engine and train of cars, and keep the same ringing or blowing until said engine had passed over said crossing, but negligently and carelessly and wrongfully failed and neglected to give any signals at all of the approach of said train to said crossing, and negligently ran said train at and over said crossing in silence and at a high and dangerous rate of speed.'
The answer was a general denial and pleas of contributory negligence.
Among others, the following instructions were given the jury:
'* * * If you believe and find from the evidence that on the occasion in question the defendant's train approached said crossing from the west at a speed of 30 or 35 miles per hour, without ringing a bell or sounding a whistle within reasonable hearing distance of said Magazine crossing, and if you further believe from all the facts and circumstances in evidence that the omission of the defendant (if you so find the facts to be) to ring a bell or...
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