Bruce v. Missouri Pac. R. Co.

• Decision Date: 31 December 1924
• Docket Number: No. 24277.,24277.
• Citation: 271 S.W. 762
• Parties: BRUCE v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

271 S.W. 762

BRUCE v. MISSOURI PAC. R. CO.

No. 24277.

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Motion for Rehearing Overruled March 20, 1925.

Motion to Transfer to Banc Overruled April 9, 1925.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Joseph Bruce against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Edw. J. White, James F. Green, and Merritt U. Hayden, all of St. Louis, for appellant,

Foristel, Mudd, Hezel & Habenicht and Thomas L. Anderson, all of St. Louis, for respondent.

HIGBEE, C.

Plaintiff recovered judgment against the appellant for $25,000 for personal injuries. The original suit was brought on May 4, 1920, against the Terminal Railroad Association of St. Louis and the St. Louis, Iron Mountain & Southern Railway Company. Thereafter a second amended petition was filed in which the Terminal Railroad Association and the appellant were named as defendants. Later plaintiff dismissed as to the Terminal Railroad Association.

The Terminal Railroad Association owns and operates the passenger station known as the Union Station in St. Louis. The station extends from Twentieth street on the west to Eighteenth street on the east, and from Market street on the north to Walnut street on the south. South of the station proper a train shed extends 600 feet. Beginning with track No. 1, on the west side, and extending to track No. 32, on the east side, there are 32 parallel tracks under this shed. Immediately south of the train shed is a board walk about ten feet wide. It is a passage for railroad business only. It is not a public crossing; the public is not admitted to it. Passenger trains are constantly arriving at and departing from the station over these tracks, at all hours of the day and night.

Plaintiff was struck by one of the appellant's regular passenger trains while it was backing into Union Station on August 31, 1917. According to plaintiff's testimony, he had been employed by the association for 18 years. He had been gradually promoted, and at the time of the accident, and for 3 years prior thereto, was night foreman of the passenger department. He had 25 or 30 men working under him. His working hours were from 6 o'clock p. m. to 6 o'clock a. m. His work took him all over the yards and all around the vicinity of the station. He had been at the station and around the tracks there the night before he was hurt. He was there nearly every night, and was familiar with the location of the tracks and with the operation of the trains in and out of the station and with what is called the puzzle switch, located 100 feet or more south of the train shed.

On the morning of August 31, 1917, plaintiff received an order from the general foreman to appear at the pay car to identify some men who were to be paid. We quote a portion of plaintiff's testimony:

"On this morning that I went down, in August, at 8 o'clock, it was daylight. It was a clear day, as far as I remember. I got off the car at Twentieth street and entered Union Station at the driveway where the wagons drive in. That is about Twentieth and Clark avenue. I then walked across the south end of the train shed and crossed over toward the pay car. The pay car was about 100 or 150 feet south of the train shed, at about track 17. In going toward track 17, I would pass over all tracks numbered from 1 to 17. I was walking around the train shed, the south end of it, until I came to about track 10 or 11, I am not sure, and then cut over to the pay car. When I was walking across these tracks and especially towards tracks 14 and 15, I looked both ways —I did not see any train coming. I mean I looked both north and south. North would be towards the station and south would be for incoming trains. As I got to track 14 or 15, I looked there. I cannot remember how far away this puzzle switch was then, but it was maybe about 50 or 60 feet further away from where I was. I kept walking along towards the pay car. I don't know what happened when I got to track 15. I didn't know a thing until I was up in the hospital—St. Mary's Hospital. I became conscious about 10 o'clock. This occurred about 8—a little before 8. There was nothing wrong with my hearing. I listened before going on those tracks. I heard no warning. I heard nothing. I woke up in the hospital, I should say, about 10 o'clock."

We quote from appellant's statement, which is conceded to be correct except as to the distance within which the conductor testified he could have stopped the train.

"The train which struck respondent was a regular passenger train which, in accordance with the customary method for handling such trains at the Union Station in St. Louis, was backing into the station. The conductor, one Hey, was on the rear platform of the rear car, directing the operation of the train. Hey was called as a witness by respondent, and testified that he had been employed by appellant as a conductor for 32 years; that he was in charge of the train; that the train was running, according to his judgment, at about 6 to 8 miles an hour; that, going at that rate of speed with the air brake, the train could have been stopped in about 50 to 70 feet with safety to the passengers thereon; that, if witness `wanted' to make what they call an emergency stop, he could stop it within 30 to 40 feet he guessed; that just before the accident he saw somebody probably 30 or 40 feet `over there'; that he saw respondent jump across in front of the train from west to east; that respondent tried to beat the train over the track before the train got to him; that witness could not exactly say how far away he was at the time he did that; that witness was standing on the rear platform with his hand on the air brake, but that the vestibule of the car interfered somewhat with his seeing except straight ahead of him; that he could not see respondent when the latter was struck because he was then out of witness' sight on account of the vestibule of the car; that there were a lot of men going and coming across the tracks on the regular walk in the end of the train shed; and that he did not know whether the man he taw was respondent or not.

"On cross-examination, this witness testified that the closest he saw any person go toward the track was 30 or 40 feet away; that he doesn't know whether that was respondent or not; that he did not see respondent as he was about to step over the track.

"One A. O. Barsch, who witnessed the accident, testified on behalf of respondent that in August, 1917, he was an employé of the Terminal Railroad Association; that he was in the vicinity of tracks Nos. 14 and 15 on the day in question, at a point about 50, 60, or 100 feet south of the train shed; that he was about 30 or 35 feet from the scene of the accident; that it was broad daylight and the day was clear; that he observed the train backing into Union Station; that the accident occurred on either track No. 13 or No. 14; that respondent was walking east at the time; that when he first saw respondent the latter was about 15 feet away from the track where he got hit; that when witness first saw the train it was about 150 feet from the point of the accident; that at that time witness did not notice where respondent was; that when respondent stepped onto track 13 or 14 the train was about 20 or 25 feet away from it; that respondent walked across the track, the train struck him and stopped within about 25 or 30 feet; that when he was struck respondent had gotten to about the east side of the train or beyond the track; that the northeast corner of the car hit him; that the puzzle switch was about 180 or 190 feet away from where respondent was hit.

"On cross-examination, witness Barsch testified that when he first saw respondent the latter was about 15 or 20 feet west of the west rail of the track the train was on; that from that point respondent walked towards the track a little bit south, facing east; that he did not see respondent look anywhere but straight ahead; that when he first saw respondent 15 feet west of the west rail of this track the train was about 20 or 30 feet from him and towards the south; that when he was struck respondent had stepped over the east rail of the track."

Barsch, being recalled, testified the train could have been stopped within 11 to 16 feet at the time and place of the injury.

When plaintiff entered the yards, he walked east along the board walk until he came to track 10 or 11, when he cut across in a southeasterly direction towards the pay car on track 17. From that time, he testified, he looked north and south but saw no train; never saw the train that struck him, nor heard any warning. The last he remembers is that he was looking southeast towards the pay car. He sustained a cut on the forehead about half an inch long and a cut two or three inches long over the right ear. The first cut healed in a few days, leaving a very small scar; the other healed probably in a month. He was in the hospital two days and went back four or five times for treatment. He had some bruises on his chest and on his left thigh. He returned to his usual duties September 8, 1917, and continued in the service of the association until April 23, 1919. In about a week after resuming work, he experienced a numbness in his left hand and left leg. This numbness gradually increased until on the night of April 23, 1919, his left side became and has ever since remained almost completely paralyzed and his mind somewhat impaired. He was about 57 years of age at the time of the accident, in perfect health, and with good eyesight and hearing.

It is unnecessary to summarize the evidence for the appellant. It did not aid plaintiff's case. At the close of all the testimony, the court overruled a demurrer to the evidence. In respondent's elaborate brief and argument, learned counsel say:

"As the casualty underlying this cause did not occur upon a public...