Carrow v. Terminal R. Ass'n of St. Louis
| Decision Date | 20 April 1954 |
| Docket Number | No. 28861,28861 |
| Citation | 267 S.W.2d 373 |
| Parties | CARROW v. TERMINAL R. ASS'N OF ST. LOUIS. |
| Court | Missouri Court of Appeals |
Hullverson & Richardson and James W. Jeans, St. Louis, for plaintiff-respondent.
Warner Fuller, Arnot L. Sheppard and John P. Montrey, St. Louis, for defendant-appellant.
This is an action for damages for personal injuries sustained by plaintiff, Juanita Carrow, when an automobile in which she was riding as a guest was struck by a locomotive engine owned and operated by defendant, Terminal Railroad Association of St. Louis.
Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $7,500. Judgment was rendered upon the verdict; and following an unavailing motion for judgment in accordance with its motion for a directed verdict or, in the alternative, for a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
The accident happened about 6:00 p. m. on November 23, 1951, at a point where defendant's tracks cross over a private road leading into the plant of the Monsanto Chemical Company in the Village of Monsanto in Illinois.
At the time of the accident plaintiff resided in East St. Louis, Illinois, and was employed by the McQuay-Norris Manufacturing Company at its plant at 4100 Forest Park Boulevard in St. Louis, Missouri. Her home was near that of her sister-in-law, Dorothy Cox, who was also employed by McQuay-Norris, and who drove to and from work in her own private automobile. Plaintiff rode with Mrs. Cox each day, as did also Mrs. Cox's husband (plaintiff's brother), Charles H. Cox, who was employed at the Monsanto Chemical Company's plant in Monsanto, Illinois. Under the practice that was followed, Mrs. Cox would first take her husband to his place of work each morning, and then come over with plaintiff to the McQuay-Norris plant in St. Louis. At the close of work at 4:30 each afternoon the procedure would be reversed, with Cox picked up at his place of work as the last stop on their route before the parties reached their respective homes.
The Village of Monsanto is situated a short distance south of East St. Louis on State Highway No. 3, which runs generally north and south in a course that follows the Mississippi River. Slightly to the north of the Monsanto Company's plant is a public street known as Monsanto Avenue, which runs east and west and intersects Highway No. 3 at right angles. At a point a quarter of a mile to the east of Highway No. 3, the private road already referred to runs south from Monsanto Avenue into the company's plant. Paralleling Monsanto Avenue, and approximately 50 feet to the south of it, are defendant's railroad tracks, two of which go across the private road.
It was shown that this private road together with an adjacent sidewalk for pedestrians constituted the only means of access to the plant for the 1,800 to 1,850 men who were employed there at the time of the accident. In other words, the only way for the employees to get into the plant, whether they came on foot or by automobile, was to cross the two railroad tracks at the point where they passed over the private road. The same was also true of visitors to the plant, whether they came for business or for personal reasons. Within the area of the plant were two parking lots, one for commercial vehicles and the other for pleasure cars. Each of the lots was able to accommodate approximately 30 vehicles. All the members of defendant's switching crew were aware of this usage of the private road which had existed for the whole time that each of them had been employed on the job.
On the afternoon in question plaintiff's and Mrs. Cox's destination was the visitors' parking lot inside the enclosure where they expected to pick up Mrs. Cox's husband, Charles H. Cox. This was a practice which was general among the relatives of employees, and had been followed by Mrs. Cox herself for about three years. Mrs. Cox was driving the automobile, and plaintiff was sitting in the front seat beside her.
The day was misty and foggy, and it was beginning to be quite dark by the hour of 6:00 o'clock. Mrs. Cox was driving with her lights turned on, and the headlight of defendant's locomotive was in 'dim' position. Along the north side of the plant enclosure, and between it and the railroad tracks, is a row of poles at intervals of 100 feet extending west from the private road to Highway No. 3. Some 5 to 8 of these poles were equipped with lights which were burning at the time of the accident.
As Mrs. Cox turned south into the private road from off of Monsanto Avenue, she was traveling at a speed of from 7 to 10 miles an hour, with the right side of her automobile about a foot from the curb. Her automobile was in second gear as she made the turn, and she continued on in second gear until the occurrence of the accident.
When Mrs. Cox reached a point about 10 or 12 feet from the first railroad track, she reduced the speed of her automobile, and both she and plaintiff looked to the right and to the left for approaching trains, but saw nothing. There was evidence to show that due to the fog and mist, the lights to the right, including the dimmed headlight of the locomotive approaching from that direction, created a general blur which tended to obscure the locomotive, which was a Diesel engine painted 'dirty gray'.
With nothing apparent to give cause for alarm, Mrs. Cox accelerated her speed to some 10 or 12 miles an hour, and started on to cross the tracks. She was over the first track, and within 6 to 8 feet of the first rail of the second track, when both she and plaintiff saw the approaching locomotive, which, according to their own estimate, was then only 12 to 15 feet away. The locomotive was to their right, as has already been indicated, and was pulling two tank cars, one loaded and one empty. Neither plaintiff nor Mrs. Cox had heard a whistle or bell, although plaintiff's side window was lowered for 3 or 4 inches to permit the escape of the smoke from her cigarette. Faced with this sudden dilemma, Mrs. Cox decided to go on across the track ahead of the locomotive, and after immediately picking up speed had actually cleared all but the last rail of the track when the locomotive struck the extreme rear end of the right rear fender, causing the automobile to be pushed for 35 feet to the left, or about the width of the private road.
One Haney, the engineer in charge of the locomotive, was called as a witness for plaintiff. He sat in the right side of the cab, 40 feet back from the front of the locomotive. From his position he could see nothing immediately to his left or in the direction from which the automobile was approaching, but was forced to rely upon his fireman, Curtis, who was seated on the left side of the cab, as well as upon his foreman, Brown, who was riding upon the platfrom which extended across the front of the locomotive.
Neither plaintiff nor Mrs. Cox had been able to form an opinion as to the speed of the locomotive, but Haney testified that it had approached the crossing at a speed of 5 miles an hour. Brown, the foreman, who was a witness for defendant, put the speed at not over 6 miles an hour. Haney testified that under the conditions then existing, and at a speed of 5 miles an hour, it required a space of 4 1/2 feet to bring the locomotive to a stop.
While the members of the switching crew differed materially from plaintiff and Mrs. Cox as to certain of the important details of the evidence, they were in agreement with them regarding what might be said to have been the general pattern of the accident.
Both Brown and Curtis had noticed the automobile as it made its right turn off of Monsanto Avenue into the private road. While it was the duty of both men to give warning to Haney of the approach of vehicles towards the tracks, it appears that in the case of a vehicle approaching from the left or on the fireman's side, Haney regarded Curtis as primarily responsible for a lookout, and as a matter of practice between himself and Curtis was inclined to defer to Curtis' judgment as to what should...
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