Brown v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 19 July 1935
• Docket Number: No. 23143.,23143.
• Citation: 85 S.W.2d 226
• Court: Missouri Court of Appeals
• Parties: BROWN v. TERMINAL R. R. ASS'N OF ST. LOUIS.<SMALL><SUP>*</SUP></SMALL>

85 S.W.2d 226

BROWN v. TERMINAL R. R. ASS'N OF ST. LOUIS.^*

No. 23143.

St. Louis Court of Appeals, Missouri.

July 19, 1935.

Rehearing Denied September 10, 1935.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by Pauley T. Brown against the Terminal Railroad Association of St. Louis, a corporation. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

Eagleton, Waechter & Yost and Roberts P. Elam, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for personal injuries sustained by plaintiff in a collision between an automobile in which he was riding and defendant's railroad train at the intersection of defendant's railroad tracks and state highway No. 4 in East St. Louis, Ill.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $7,500, and defendant appeals.

The petition charges negligence on the part of defendant in the following respects: (1) That defendant negligently failed to keep a lookout while its train was approaching and crossing the intersection, and failed to exercise ordinary care to discover the automobile with plaintiff therein approaching and on its tracks; (2) that defendant negligently failed to give any signal or warning of the starting up, movement, or approach of its train, and negligently failed to ring the bell of the locomotive or to signal with the whistle thereof, or with a light; (3) that defendant negligently failed to stop or sufficiently slacken the speed of its train so as to avoid the collision or to keep the same stopped and motionless, although defendant by the exercise of ordinary care could have done so and thus and thereby have avoided the collision and injuries to plaintiff; (4) that defendant saw or by the exercise of ordinary care could have seen the automobile with plaintiff therein approaching and in a position of imminent peril of being struck by the train, in time thereafter to have stopped the train, or sufficiently slackened the speed thereof, or to have sounded an audible warning signal, and thereby have avoided the collision and injuries to plaintiff; (5) that defendant negligently after striking the automobile with plaintiff therein continued on, pushing the automobile a great distance, and after stopping the train negligently started same in motion again dragging plaintiff and the automobile further; (6) that defendant negligently operated its locomotive without causing its bell to be sounded, or a steam whistle to be blown, at a distance of at least eighty rods from the intersection of the railroad with the highway, in violation of the statutes of Illinois; (7) that defendant negligently failed to have a brakeman stationed on the rear of its train; (8) that defendant negligently failed to have a light on the rear of its train. The petition also charges negligence in a number of other respects, but these charges were by instructions withdrawn from the consideration of the jury.

The collision occurred at Black bridge crossing in East St. Louis, at about 2:30 a. m., on June 4, 1928; Illinois highway No. 4 runs in a general north and south direction at this crossing, and defendant's tracks run in a general east and west direction, and the highway crosses the tracks at nearly right angles. The highway is one of the main traveled roads in Illinois, being an ordinary 2-car highway paved with concrete, and at this intersection is crossed by four or more of defendant's tracks. Black bridge, which carries the highway over a small creek, is about 30 feet north of the crossing. The bridge is about 30 feet long. There were railroad gates at the crossing, which were up at the time of the collision, but the failure to have the gates lowered was withdrawn from the consideration of the jury as a predicate for a recovery. It was dark at the crossing. Some distance to the west of the crossing there is a bridge which carries the railroad tracks over a ditch. The distance between this bridge and the highway appears to be about 80 feet, and the bridge, measured parallel with the tracks, appears to be 40 feet long.

At the time of the accident plaintiff was on his way from Chicago to St. Louis. He was accompanied by Miss Margaret Cox. He was driving a Chevrolet coupé, which belonged to Miss Cox. He resided in Chicago, and so did Miss Cox. On the day before the accident Miss Cox received a telegram from St. Louis, informing her of the death of her sister in St. Louis. She then arranged with plaintiff, who was her friend, to drive her to St. Louis.

Concerning the accident, plaintiff testified as follows: "We were coming down this highway No. 4 to Black Bridge. There was an automobile ahead of us, and it pulled across the bridge and stopped there. At the time we got up there it had proceeded ahead and we came up and stopped there. It was drizzling rain. Miss Cox ran her window down and looked out, and I ran mine down and looked out the other way, and we did not see anything moving around there, and no lights. I then put my car in low and started across the tracks. We saw some box cars, it looked to me, on one of those tracks that were standing still, about ten or fifteen feet to the right of the highway, and we started across, and as we got across the track there was a string of box cars, I can't say whether it was the cars that we thought were standing there, that came back and hit the right rear fender of the coupe and shoved it down the track. As we stopped there the front end of the automobile was about five or six feet from the rails. We saw a string of box cars ten or fifteen feet from the highway. They looked like they were stopped there. We did not see anything moving at all. As we were stopped there and up until the time we were struck, I at no time heard any signal, either by way of a whistle or bell, of any moving train around there. There was no lantern or light of any character there. There was no light on any of those cars. There was nothing at all to indicate that those cars were about to move. I think we were on the second track when the crash occurred, I am not positive, the tracks run so close together there, and there are so many switches there. The automobile was struck at the right rear fender by the step of the back end of the box car. We were hit, and the corner of the box car shoved us down the track about forty or fifty feet, and stopped. The automobile was wedged pretty close to the box cars. I got out and went around to the other side of the automobile to get the door open to get Miss Cox out on that side. The automobile had turned around, so that it fronted toward the engine of the train, and it had slid down the tracks and was wedged between the rails of the track and the box car, and I was in there trying to get the door open, and the train started forward and knocked me down and dragged us back over the rails to within six or eight feet of the crossing. We were shoved and pushed along by the car until the train stopped, and then I was in between the automobile and the box car trying to get Miss Cox out. Then the train started forward and knocked me down and dragged me with the coupe and the whole bunch of wreckage about thirty or forty feet before the coupe became loose from the box car. While the automobile was being dragged back there that distance of forty or fifty feet, the right-hand side of the automobile was along side of the box car, and when it was being dragged forward it was in the same position. During all the time that we stopped there at that crossing up until the time this automobile was finally shook loose from the box car I did not at any time see any man around there with a lantern signaling me at all, either on the train or off the train. After we were hit and the automobile slid around, the light of the automobile shown right along the string of box cars, and about the second or third car there was a man with a lantern going up the side of the box car. He was on the south side of the box car. He was the only man I saw around there that night at all with a lantern at any time during the time of the collision up to the time the automobile broke loose from the box car and finally stopped. The automobile had been dragged up to within six or eight feet of the crossing. The train did not stop then, but went across the crossing. It was across the highway back up on the yards when it stopped. During the time that we were being dragged forty or fifty feet by the backing train and then dragged forward thirty-five or forty feet, there was no bell or whistle sounded. I don't know whether the car that struck the automobile was on the first or second track. The tracks run parallel and there are switches in there too. I don't know which it was, on the first or second track. I judge the train when it hit me was not going over three or four miles an hour. It was going slowly. I got out of the automobile when the train stopped. After it pushed the automobile forty or fifty feet I got out of the automobile and went around to get Miss Cox out. When I got the door partly open the train started ahead and knocked me down. I went down on my back between the coupe and the box car. Miss Cox went out on the other side. We were stopped at the intersection five or six seconds, or just a little bit, before starting across the tracks. The headlights of the automobile were burning. I saw the freight train standing still. There wasn't anything on the rear of the train, only a box car. There was no switchman with a lighted lantern on the crossing. There wasn't any switchman there or on top of the end car. We had gone on and were nearly across the track when we were struck by the train."

Margaret Cox, testifying for plaintiff, described the accident as follows: "When we came up there to the crossing, it was dark, and there was a train...