Christopher v. Chicago B. & Q. R. Co.

• Decision Date: 20 December 1932
• Docket Number: No. 30733.,30733.
• Citation: 55 S.W.2d 449
• Court: Missouri Supreme Court
• Parties: CHRISTOPHER v. CHICAGO, B. & Q. R. CO. et al.

55 S.W.2d 449

CHRISTOPHER v. CHICAGO, B. & Q. R. CO. et al.

No. 30733.

Supreme Court of Missouri, Division No. 1.

December 20, 1932.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

Action by Olof Christopher against the Chicago, Burlington & Quincy Railroad Company and another. From the judgment for plaintiff, defendants appeal.

Affirmed.

J. C. James, of Kansas City, and Douglas W. Robert, of St. Louis, for appellants.

Jesse T. Friday, of St. Louis, for respondent.

RAGLAND, J.

This is an action for personal injuries against two railroad companies, the Chicago, Burlington & Quincy Railroad Company and the Chicago, Rock Island & Pacific Railway Company, hereinafter respectively called the Burlington and Rock Island. Plaintiff having recovered judgment against both in the court below, the cause comes here on their joint appeal. A statement of the facts giving rise to the controversy, as disclosed by the evidence on the trial, follows.

At the times hereinafter mentioned, there was an open, public street in the city of Moline, in the state of Illinois, known as Sixth street, which ran north and south; and paralleling it on the west, and, 300 feet distant therefrom, there was another street known as Fifth street. Sixth street was intersected by Third avenue, an east and west street, and likewise by Railroad avenue, a street paralleling Third avenue and a block south thereof. Between Third avenue and Railroad avenue, three tracks of the Burlington Railroad Company and four tracks of the Rock Island Company, all running in an eastwardly and westwardly direction, crossed Sixth street. The tracks of the Burlington with respect to each other were just far enough apart to permit passing cars to clear. The same was true of the Rock Island tracks. The distance along Sixth street, between the north rail of the north Rock Island track and the south rail of the southernmost track of the Burlington, was 48 feet. Sixth street along this 48-foot stretch was surfaced with gravel and in good traveling condition. There was a gate across Sixth street 3 or 4 feet north of the north track of the Burlington and also one at approximately the same distance south of the south track of the Rock Island. These gates were operated by a flagman stationed in a tower, 25 feet in height, located on the west side of Sixth street just south of the Rock Island tracks. The gates were raised and lowered simultaneously by one movement of the lever. The flagman was in the joint service of the two railroads. It was his duty to lower the gates when an engine, train, or car approached the Sixth street crossing on any of the tracks, and to keep the gates lowered during the time the tracks over the crossing, or any of them, were in use by the railroads.

On December 13, 1927, at about 11 o'clock in the morning, plaintiff, driving a 1-ton automobile truck loaded with cans and bottles of milk, was proceeding north on Sixth street. When he arrived at the crossing of the Rock Island tracks, he found his way was barred by the crossing gates and stopped. While he was waiting there, he observed a Burlington engine, pulling several box cars, pass over the crossing headed west. Presently a freight train passed over the crossing on one of the Rock Island tracks going in the same direction. Immediately after the freight train had passed, the gates were raised. Plaintiff then looked to the west and saw the Burlington engine, which he had previously seen pulling box cars across Sixth street, standing slightly east of Fifth street. It was not then attached to any cars. He also saw several box cars on one of the Burlington tracks about midway between Fifth and Sixth streets, which seemed to him to be standing still. He then looked toward the east and, seeing nothing approaching from that direction, started his truck and proceeded north across the Rock Island tracks, moving at the rate of 3 miles an hour. As he was passing over the last of the tracks just mentioned, he again looked to the west. The Burlington engine and the box cars seemed to be in the same positions they were when he first looked. As his truck moved along at the rate of 3 miles an hour, he continued to look west until his vision was obstructed, as he says by piles of rock, scrap iron, and pig iron, which were 6 or 8 or 10 feet high. He next looked to the east but saw nothing. When the front wheels of his truck had passed over the first rail of the Burlington tracks, as he proceeded north, he again looked west, he saw a box car 8 or 10 feet away moving toward him. He immediately slid out from under the steering wheel of his truck and attempted to jump, but the impact of the car threw him clear of the truck, causing the injuries for which he sues. The ground between Fifth and Sixth streets was comparatively level. None of the piles of rock exceeded 10 feet in height. The box car which collided with plaintiff's truck was 15½ feet high and could have been seen by plaintiff moving toward the crossing, notwithstanding the obstructions, had he looked attentively in that direction.

The gates were first closed to protect the crossing while a Burlington crew was engaged in a switching operation which required movements of a switch engine and cars back and forth over the crossing. The Burlington engine pulling a string of cars which plaintiff saw pass over the crossing going west came to a stop when the rear car of the drag was 5 or 6 feet west of a switch. At that point the last two cars of the drag were uncoupled from the others; they were then given a slight kick by the engine and sent rolling through the switch, which had been thrown, eastwardly down another track. When they started, they moved at the rate of a mile an hour, but, as there was a slightly descending grade to the east, their speed had increased to 3 or 4 miles an hour when they reached the crossing where they came into collision with plaintiff's truck. As the two cars started through the switch, a brakeman climbed up on the east end of the front or east car to control the movements of the cars by use of the hand brakes. As the cars approached the crossing, the brakeman discovered plaintiff's truck moving toward the same point, he thereupon set the brakes on the car he was riding and shouted loudly to attract plaintiff's attention. He then ran back and set the brakes on the second car. Plaintiff neither saw nor heard him; the cars were not stopped in time to avoid a collision.

During the time the switching movement just described was going forward, none of the crew of three looked to see whether the crossing gates were up or down. They assumed apparently that the gates would not be raised until their switching operations were completed. The flagman who was stationed in the tower testified that he thought the switching had been completed when he raised the gates to let waiting vehicles through.

The petition contained three assignments of negligence, in substance as follows:

(1) "Both defendants negligently and carelessly raised said crossing gates, and thereby carelessly and negligently assured plaintiff that he and his said motor truck could, by the exercise of ordinary care on his part, cross said tracks with safety, etc.

(2) "The agents and servants...