Chiodini v. Terminal R. Ass'n of St. Louis
| Decision Date | 21 February 1956 |
| Docket Number | No. 29338,29338 |
| Citation | 287 S.W.2d 357 |
| Parties | Louis J. CHIODINI (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.
Hay & Flanagan, E. D. Franey, S. D. Flanagan, St. Louis, for respondent.
HOUSER, Commissioner.
This is an action for damages brought against Terminal Railroad Association of St. Louis for personal injuries sustained by Louis J. Chiodini while standing on a train platform in Union Station. From a judgment for $3,950 entered on a jury verdict the railroad association has appealed.
The petition alleged in paragraph II that while plaintiff, a Pullman conductor engaged in the performance of his duties, was standing on a station platform alongside a Pullman car in a train of the Missouri Pacific Lines which was standing on a track for the purpose of taking on passengers 'he was hit, struck and collided with by a truck or bull wagon which the defendant, its agent and servant, were then and there operating along and upon said platform' and was thereby injured. In paragraph III plaintiff charged negligence in separately numbered subparagraphs as follows: (1) excessive speed, (2) failure to warn, (3) failure to keep the truck under control, (4) failure to keep a vigilant lookout, (5) failure to swerve, (6) failure to stop, (7) 'That defendant negligently and carelessly caused, allowed and permitted said truck or bull wagon to strike and collide with plaintiff while plaintiff was standing on said platform alongside said Pullman car, * * *,' and (8) humanitarian failure to stop, slacken speed, swerve or warn. Defendant's answer was a general denial, amended prior to trial to allege contributory negligence.
For the purpose of loading and unloading passengers, mail and baggage, provision is made for trains to back into Union Station on 42 parallel north and south tracks. The tracks are separated in pairs by concrete platforms of sufficient height above the level of the tracks to make it easy for passengers to step onto or off the railroad car steps. The concrete platforms, 12-14 feet wide, run north and south, parallel to the tracks, their east and west edges being about flush with the sides of the railroad cars. At the north end of these concrete platforms and at the same level a concrete passageway approximately 40 feet wide runs in an east-west direction to accommodate all 42 tracks. The fence and gates which divide the railroad yards from the station waiting room and through which passengers entrain and detrain, run along the north side of this passageway. In order to transport mail and baggage from place to place over the concrete platforms and passageways defendant used rubber-tired four-wheel trucks known as bull wagons, which were coupled together as trains and pulled by gasoline powered tractors operated by defendant's employees. The bull wagons were approximately 3 1/2 feet wide, 8 or 10 feet long, their beds 3 1/2 feet high and their sides 3 feet high around the bed. The tractors are about 7 feet long.
On the day in question plaintiff reported for duty at 5 o'clock, scheduled to leave on Missouri Pacific Train No. 1, the Texas Eagle, at 5:45 p. m. The train was standing on track 7, on the east side of the concrete platform between tracks 6 and 7. Shortly before the departure of the train plaintiff descended the steps on the west side of one of the Pullman cars in the train. As he did so he faced wast and was looking directly west toward the concrete platform. He was holding to the hand holds when he reached the bottom step. At that time he looked to his right (to the north) and saw nothing. In that direction he could see all the way to the gate, a distance of approximately 195 feet, and he saw no tractor or truck anywhere on the platform between him and the gate. Then he stepped down to the concrete platform and looked to his left (to the south). He saw nothing coming from either direction. He stood 'right up against' the west side of the Pullman car. He was standing perfectly still and did not move his feet, arms or body other than to twist his head to look south. After standing there and in that position for approximately a half minute he turned his head 'and this here ('about three' bull wagons coupled to a tractor) was right in front of me and hit me.' Plaintiff did not see the tractor before he was hit. He did see the tractor when--'at the time'--he was hit. The tractor-bull wagon train was running south at the time. Plaintiff was struck on the right chest, not by the tractor but by the left front end of the first bull wagon behind the tractor, and knocked down.
Plaintiff's assignments of negligence 1 to 6, both inclusive, and 8, supra, were abandoned in the submission. Plaintiff went to the jury solely on the negligence charged in subparagraph (7), supra. Plaintiff's verdict-directing instruction No. 1 follows:
'The Court instructs the jury that if you find and believe from the evidence that on or about the 10th day of June, 1953, plaintiff, Louis J. Chiodini, was employed as a Pullman conductor by the Pullman Company and that on or about said date, while performing his duties as such conductor, he was standing on a platform in Union Station, operated by the defendant, Terminal Railroad Association of St. Louis, near the south end of the second Pullman car from the rear end of Missouri Pacific Train No. 1 with his back close to the west side of said car, if you so find, and that while he was standing in said position, the defendant by and through one of its employees drove and operated a tractor, to which were attached certain trucks or bull wagons, in a southwardly direction on said platform toward plaintiff, and that defendant negligently and carelessly caused, allowed and permitted one of said trucks or bull wagons to strike which collide with plaintiff while he was standing in said position, if you so find, and that as a direct and proximate result thereof plaintiff was injured, and if your further find and believe from the evidence that plaintiff was at all said times in the exercise of ordinary care for his own safety, then your verdict should be in favor of plaintiff and against defendant.'
Defendant's first and second points are that plaintiff failed to make a prima facie case of negligence; that this case is not a res ipsa loquitur situation and that plaintiff neither pleaded, proved nor properly instructed on specific negligence. While it is true that plaintiff did not and under the facts could not rely upon the res ipsa loquitur doctrine we cannot agree that plaintiff failed to allege, prove and submit a prima facie case of specific negligence.
In fact situations authorizing the application of the doctrine of res ipsa loquitur, where the physical facts and circumstances surrounding an unusual occurrence resulting in injury are sufficient to justify an inference of some kind of negligence for which the defendant should be held responsible but are insufficient to point to the specific negligent act or omission, allegations similar to those in paragraph III subparagraph (7) of plaintiff's petition have been held to charge general, and not specific, negligence. Price v. Metropolitan St. R. Co., 220 Mo. 435, 119 S.W. 932; Briscoe v. Metropolitan St. R. Co., 222 Mo. 104, 120 S.W. 1162; Stauffer v. Metropolitan St. R. Co., 243 Mo. 305, 147 S.W. 1032; Nagel v. United Rys. Co. of St. Louis, 169 Mo.App 284, 152 S.W. 621; Austin v. Simon, Mo.App., 204 S.W. 193; Berfeld v. Kansas City Rys. Co., 285 Mo. 654, 227 S.W. 106; Porter v. St. Joseph Ry. Light, Heat & Power Co., 311 Mo. 66, 77 S.W. 913; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Benner v. Terminal R. R. Ass'n of St. Louis, 348 Mo. 928, 156 S.W.2d 657; Bommer v. Stedelin, Mo.App., 237 S.W.2d 225.
In fact situations in which the doctrine of res ipsa loquitur is inapplicable and a case of specific negligence is sought to be stated the extent to which plaintiff must particularize depends upon the circumstances. There are some fact situations in which the act which results in injury or damage is so simple that the mere statement of the ultimate facts is nearly as specific an averment as can be expressed in words. Monan v. Arkansas Grocer Co., 216 Mo.App. 289, 264 S.W. 486; Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Boulos v. Kansas City Public Service Co., 359 Mo. 763, 223 S.W.2d 446, loc. cit. 449. Examples of specific negligence cases of this kind in which the pleadings alleged and the verdict-directing instructions, after describing plaintiff's position and environment, hypothesized little more than the ultimate facts relating to a simple act of commission, without reference to the conventional particularized acts of omission such as failure to stop, swerve, slacken, warn, maintain a lookout, control, etc., follow: Beier v. St. Louis Transit Co., 197 Mo. 215, 94 S.W. 876; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583; Thompson v. Keyes-Marshall Bros. Livery Co., 214 Mo. 487, 113 S.W. 1128; Miller v. United Rys. Co. of St. Louis, 155 Mo.App. 528, 134 S.W. 1045; Richardson v. Kansas City Rys. Co., 288 Mo. 258, 231 S.W. 938; State ex rel. Kansas City Rys. Co. v. Trimble, Mo.Sup., 260 S.W. 746; Stolovey v. Fleming, 320 Mo. 946, 8 S.W.2d 832, and other cases cited in Boulos v. Kansas City Public Service Co., supra, 223 S.W.2d loc. cit. 449 et seq.; Hughes v. East St. Louis City Lines, Mo.App., 149 S.W.2d 440; Jones v. Central States Oil Co., supra; State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68; Rosenblum v. St. Louis Public Service Co., Mo.App., 242 S.W.2d 304; Sullivan v. Kansas City Public Service Co., 363 Mo. 68, 248 S.W.2d 605, and Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360.
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