Aleckson v. St. Louis-San Francisco Ry. Co.

• Decision Date: 19 June 1919
• Docket Number: No. 2339.,2339.
• Citation: 213 S.W. 894
• Parties: ALECKSON v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

213 S.W. 894

ALECKSON v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 2339.

Springfield Court of Appeals. Missouri.

June 19, 1919.

Rehearing Denied July 10, 1919.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by George Aleckson against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

N. A. Mozley, of Bloomfield, and W. F. Evans, of St. Louis, for appellant.

Bartley & Douglass, of St. Louis, for respondent.

BRADLEY, J.

Plaintiff sued to recover damages for personal injury. Upon trial before the court and a jury judgment went for plaintiff in the sum of $5,000. Unsuccessful in motions for a new trial and in arrest, defendant appealed.

The suit was commenced against defendant and the Terminal Railway Association, but at the close of plaintiff's case in chief, he dismissed as to the latter. The facts are substantially as follows: Plaintiff had been working for the Terminal Railway Association in the Union Station at St. Louis for four days prior to his injury. At the time of his injury he was carrying a sack of mail to one of defendant's trains, then on track No. 9 under the shed. The shed of the station opens to the south, and all trains enter from the south. There are 32 tracks under the shed, numbered 1, 2, 3, etc., from the west side of the station shed. Between certain tracks there is a plank platform about 12 feet wide. Beginning on the west side the platform is between tracks 2 and 3, 4 and 5, 6 and 7, 8 and 9, etc. This platform is about six inches higher than the top of the rails of the tracks, and extends out near the track. At the south end of the station shed is a board walkway running east and west across the tracks. In the platform between the tracks, and about 11 or 12 feet north of the east and west walkway, is an elevator opening, running lengthwise with the platform, and about 5x16 feet, and this elevator connects with a subway. About 60 feet north of this elevator is another like elevator connecting with the subway. When the elevator is up it forms a part of the platform, and is so constructed that when it goes down iron railings automatically rise about 3 feet above the level of the platform so as to guard the opening. The elevator is to the south side of the platform, and extends to within about a foot of the edge thereof. Similar elevators are placed in other platforms to accommodate the different tracks.

Just prior to plaintiff's injury he had been up under the shed on some mission connected with his duties, and says that a Frisco train was then under the shed, and standing on track No. 9. On his return to the subway his foreman gave him a "kind of heavy" sack of mail, and told him to put it on the Frisco train on track No. 9. He first went to the south elevator between tracks 8 and 9, and this elevator was at the time in use, and he took the south elevator between tracks 10 and 11. When he came up he walked south to the board crossing, turned west on this crossing, and walked to the platform between tracks 8 and 9, then turned north along the east side of this platform, carrying the sack of mail on his right shoulder, and walking at the rate of about 2 miles per hour. When he reached the first or south elevator between tracks 8 and 9 it was up, and formed a part of the platform, and he could have walked across it, but he walked between the elevator and the edge of the platform next to track No. 9. He had gone about half the distance by the elevator, when defendant's passenger train, backing in without any warning or signal, and at about 12 miles per hour, struck plaintiff, resulting in the loss of his leg between the knee and hip, leaving after the operation only a "short stub." According to plaintiff's evidence and in this he is supported by others—he was carried or rolled along from the place where he was struck some distance before his leg was cut off. After he went under the wheels, and his leg was cut off, the train continued a distance of about 1½ car lengths.

Under the rules regulating speed, trains approaching Union Station must be reduced to 10 miles per hour through the interlocking territory, and to 8 miles per hour entering the train shed. A great number of employés are constantly about the premises, and there is much commotion thereabout in the going and coming of trains, and movements of trucks, etc. A train backing in will approach within 60 or 70 feet of the shed entrance before it can be definitely ascertained by the ordinary observer just what particular track the train will enter on. The conductor of this train placed the speed of his train on entering the station at about 6 miles per hour, and the engineer stated that it was about 4½ miles per hour. The engineer said this train, running as it was, could have been stopped in 60 or 70 feet.

Plaintiff charges three acts of negligence: (1) That the employés in charge of said train saw plaintiff in a position of danger, or by the exercise of ordinary care could have seen him in a position of danger, and could by the exercise of ordinary care have stopped the train or checked its speed, and thereby avoided any injury to plaintiff, but negligently failed to do so. (2) That the employés in charge of the train which struck plaintiff negligently failed to sound the whistle on the rear coach, and thereby warn plaintiff of the approach of said train. (3) That the defendant in backing its train into the station knew that there were persons, or should have anticipated that there were apt to be persons, at work under the shed, and on or about the tracks, and in view of these facts the defendant backed its train into the station at a high and negligent rate of speed, thereby causing the injury to plaintiff. The answer is a general denial, and a plea of contributory negligence. The reply is a general denial.

Defendant's chief assignment is that the court erred in refusing its demurrer. It is contended that plaintiff cannot recover because defendant owed him no duty to give any warning of the approach of its train, or to regulate its speed in anticipation of danger to plaintiff or others. On the other hand, it is urged that if defendant did owe plaintiff a duty to warn him of the approach of its train, and has breached this duty, nevertheless plaintiff cannot recover, because of his own contributory negligence. Under the first division of "Points and Authorities" in appellant's brief it says:

"Plaintiff was an employé of the Terminal Railway Association, and knew of the number of tracks and the use made of those tracks at Union Station, and he knew that trains were constantly passing to and fro on said tracks, and as such employé, and using the premises in and around the tracks of said association in Union Station, it was his duty to look out for his own safety, and appellant owed him no duty to warn him of the approach of its train."

To support this contention defendant relies on Aerkfetz v. Humphreys et al., 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758; Loring v. Railway, 128 Mo. 349, loc. cit. 359, 31 S. W. 6; Degonia v. Railway, 224 Mo. 564, 123 S. W. 807; Gabal v. Railroad, 251 Mo. 257, 158 S. W. 12; Ginnochio v. Railway, 155 Mo. App. 163, 134 S. W. 129; Ritz v. Railway, 152 Mo. App. 687, 133 S. W. 397.

The controlling feature of the authorities relied upon by defendant to support its contention that it owed plaintiff no duty to warn him, and was therefore not guilty of negligence in failing to do so, is that the injury complained of occurred at a place where the trainmen had a right to expect a clear track. In Hitz v. Railway, supra, the rule and the reason for determining the question of negligence is well stated thus:

"In considering the question of negligence, it is a truism that an ordinarily prudent man would not take precautions to guard himself against the danger which he could not reasonably anticipate. What a reasonably prudent man would anticipate, when required to act under a given state of circumstances, is the legal measure of liability for negligence; and when an ordinarily reasonable and prudent man would not anticipate an injury to another person from his act, such injury thence arising from his failure to take precautions to prevent it is not actionable negligence in cases where reasonable care only is required."

The evidence in the case at bar shows that when...