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

• Citation: 137 S.W.2d 612
• Decision Date: 05 March 1940
• Docket Number: No. 25303.,25303.
• Parties: CHAPMAN v. TERMINAL R. R. ASS'N OF ST. LOUIS.
• Court: Court of Appeal of Missouri (US)

137 S.W.2d 612

CHAPMAN v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 25303.

St. Louis Court of Appeals. Missouri.

March 5, 1940.

Rehearing Denied March 19, 1940.

Appeal from St. Louis Circuit Court; John W. Joynt, Judge.

"Not to be reported in State Reports."

Action by Lee Chapman, administrator of the estate of William Eugene Foley, deceased, against the Terminal Railroad Association of St. Louis, to recover for the wrongful death of the deceased resulting from an automobile accident. From a judgment for plaintiff, defendant appeals.

Affirmed.

Carleton S. Hadley, Walter N. Davis, and Arnot L. Sheppard, all of St. Louis, for appellant.

Louis E. Miller and Robert R. Adams, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action brought by Lee Chapman, the administrator of the estate of William Eugene Foley, deceased, to recover damages for the wrongful death of the deceased, which occurred on November 7, 1935, when an automobile in which the deceased was riding as a guest of the driver collided with 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 defendant's appeal to this court has followed in the usual course.

The cause of action accrued in the state of Illinois, which means, of course, that the substantive rights of the parties are to be determined by the statutes and decisions of that state as interpreted and announced by its courts of last resort.

The accident occurred at the intersection of Missouri Avenue and Twenty-first Street in East St. Louis, when the automobile, which was westbound on Missouri Avenue, struck against defendant's locomotive engine, which was southbound on the west track on Twenty-first Street.

The negligence pleaded and relied upon by plaintiff as the direct and proximate cause of the death of the deceased was the alleged failure of defendant, through its agent and servant, first, to have exercised ordinary care to keep a careful watch and lookout ahead for persons on or approaching the crossing; and second, to have lowered the crossing gates across Missouri Avenue prior to the approach of the automobile.

In its answer, to which issue was joined by plaintiff's reply, defendant pleaded a number of defenses under the law of Illinois, including a plea of contributory negligence on the part of the deceased and a denial of any negligence on its own part, together with a plea in bar of plaintiff's right to maintain his action because of his alleged failure, within the special limitation period of one year after the death of the deceased, to have filed a petition stating that the deceased had left surviving him a widow or next of kin for whose benefit the action might be brought, and to whom any amount recovered might be distributed, as provided by the Illinois wrongful death statute (Chap. 70, secs. 1 and 2, Ill.Rev.Stat.1939).

The evidence disclosed that on the north side of Missouri Avenue, in the block east of Twenty-first Street, there is a continuous row of buildings, including a large two-story building on the immediate northeast corner of the intersection, which prevent any one approaching Twenty-first Street from the east from seeing up Twenty-first Street to the north for any appreciable distance until the building line is reached, and in like manner served to obstruct the view of defendant's enginemen when approaching the intersection with Missouri Avenue from the north. On the northwest corner of the intersection is located the crossing watchman's tower, from which the watchman operates crossing gates erected both to the east and to the west of the tracks, and consisting, in each instance, of wooden bars, the ends or tips of which, when the bars are let down from their respective supports on the opposite corners of Missouri Avenue, come practically together in the middle of the street. It was concededly defendant's custom and practice, of which the deceased and the other occupants of the automobile were aware and upon which they relied, for the crossing gates to be lowered whenever a train was about to be run over the crossing, so that whenever the gates were open, it was to be taken as indicating that no train was close at hand.

The accident occurred shortly after midnight as the deceased and his three companions were returning to their homes from places of entertainment that they had visited earlier in the evening. The night was dark, and while there had been a light rain a short time before the accident, it would appear that at the moment of the occurrence all rainfall had entirely ceased.

The testimony showed that all four persons were seated in the one seat of the automobile, which was a Chevrolet coupe. One Boyd, the driver, was seated at the extreme left behind the wheel; a young woman named Glenna Wilson was seated in the middle; the deceased was to the extreme right; and a Miss Goldie Greenfield was sitting on the lap of the deceased.

According to plaintiff's evidence, Boyd was operating his automobile at a speed of about fifteen miles an hour, and, upon approaching the crossing, and finding that the gates were up, drove out upon the crossing, where he discovered that the same was blocked by a southbound locomotive engine pulling a caboose. Boyd's own testimony (as read from the transcript of the record in a previous case growing out of the accident) was that when he first became aware of the danger, he was only twelve feet away from the engine, which was then directly in front of him. No sound of a bell or whistle had been heard by any of the occupants of the automobile, although the window was down on Boyd's side of the car, and nothing out of the ordinary had been taking place to distract the occupants' attention. Upon realizing his impending peril, Boyd immediately applied his brakes, but in the time and space available was unable to stop short of a collision, his automobile striking the side of the engine about ten feet back from the end of the pilot.

Defendant's evidence was to the effect that the bell was ringing and the whistle blowing as the engine approached Missouri Avenue; that the crossing gates had been lowered and were down; that the automobile was seen approaching the crossing at a speed of from forty to forty-five miles an hour; and that it ran through the center of the gates and crashed into the side of the engine, but without having either damaged the gates or dislodged or put out the red lantern which was lit and hanging suspended from the end of one of the bars.

As a consequence of the collision, Foley, the deceased in this case, was instantly killed; Boyd subsequently died from the effects of the injuries he sustained, or at least it was so determined in the action brought by Charles H. Green, the administrator of his estate, to recover damages for his wrongful death; and both Glenna Wilson and Goldie Greenfield were more or less severely injured.

In due course, Goldie Greenfield brought her action against defendant in the City Court of East St. Louis, and following the entry of judgment in her favor, defendant took its appeal to the Appellate Court for the Fourth District of Illinois, wherein the judgment of the lower court was subsequently affirmed. Greenfield v. Terminal R. Ass'n of St. Louis, 289 Ill.App. 147, 6 N.E.2d 888. Glenna Wilson brought suit in the Circuit Court of the City of St. Louis, and from the judgment obtained in her favor, defendant appealed to this court, wherein the judgment was affirmed. Wilson v. Terminal R. Ass'n of St. Louis, Mo. App., 121 S.W.2d 232. Green, the administrator of the estate of Boyd, likewise brought suit and recovered judgment in the Circuit Court of the City of St. Louis, and that judgment was but recently affirmed in this court in an opinion entitled Green v. Terminal R. Ass'n of St. Louis, Mo.App., 135 S.W.2d 652. The present action for damages for Foley's death is apparently the last of the litigation growing out of that unfortunate accident.

The first point which defendant presses for our consideration is that of whether the petition states a cause of action, and, if so, of whether, under the record in the case, the action may be said to have been commenced within the statutory period of one year after the time of Foley's death.

The Illinois wrongful death statute (Chap. 70, secs. 1 and 2, Ill.Rev.Stat.1939) provides, so far as we are here concerned with it, that the action shall be brought by and in the name of the personal representative of the deceased person; that the amount recovered shall be for the exclusive benefit of the widow and next of kin of such deceased person; and that every such action shall be commenced within one year after the death of such person.

Moreover, as regards the effect of such latter provision, it is held by the Illinois Supreme Court, in the construction of the statute, that the limitation of one year within which to bring the action is not a statute of limitations, but rather a condition precedent to the right to sue at all; and that being so, the plaintiff who seeks to maintain an action under the statute, must bring himself within all the prescribed requirements necessary to confer the right of action, including the institution of his suit within one year after the death of the deceased. Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 15 N.E.2d 838.

In the case at bar the death of the deceased occurred on November 7, 1935, and while suit was brought by plaintiff, as the administrator of his estate, on January 17, 1936, or well within the year, the petition filed contained no allegation whatsoever that the deceased had left surviving him any widow or next of kin for whose exclusive benefit the action might be brought and to whom any amount recovered might be...