Cox v. Terminal Railroad Ass'n of St. Louis

• Decision Date: 03 November 1931
• Docket Number: No. 21320.,21320.
• Citation: 43 S.W.2d 571
• Parties: COX v. TERMINAL RAILROAD ASS'N of ST. LOUIS.
• Court: Missouri Court of Appeals

43 S.W.2d 571

COX v. TERMINAL RAILROAD ASS'N of ST. LOUIS.

No. 21320.

St. Louis Court of Appeals. Missouri.

November 3, 1931.

Rehearing Denied December 8, 1931.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Marguerite Cox against the Terminal Railroad Association of St. Louis. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

J. L. Howell, Roy W. Rucker, S. P. McChesney, and Walter N. Davis, all of St. Louis, for appellant.

Everett J. Hullverson and Allen, Moser & Marsalek, all of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a verdict and judgment in favor of the plaintiff. The verdict was in the sum of $12,500, but upon a motion for new trial the court ordered a new trial unless plaintiff within ten days thereafter remit the sum of $5,000, and the plaintiff did remit $5,000, and a judgment was entered in the sum of $7,500.

The second amended petition on which the case was tried alleged that plaintiff was injured while riding as a passenger in an automobile operated by another person when said automobile was struck by one of the defendant's trains near Black Bridge in East St. Louis, Ill., and charged defendant with eleven specific acts of negligence, in effect, as follows:

(1) The failure to warn plaintiff or driver of the automobile of the approach of the train.

(2) Failure of the servants of the defendant to apply the brakes on said train when the servants saw the automobile approaching the track in time to have stopped the train and avoided striking the automobile.

(3) That agents of defendant negligently backed up the train without having any lookout on the back end thereof.

(4) The defendant negligently and carelessly failed to have a watchman at said crossing to operate the gates there and failed to provide anyone to warn approaching pedestrians of the approach of the train.

(5) That the agents and servants in charge of the train saw, or by the exercise of due care could have seen, the automobile in which plaintiff was riding in a position of imminent peril, in time for the agents and servants of the defendant, with the means and appliances at hand, and with reasonable safety to the passengers on the train, to have stopped the same, slacked the speed thereof, or given a warning of its approach and movement.

(6) The violation by defendant of General Order 106 of the Illinois Commerce Commission, which general order provided in substance that every railroad corporation should cause a bell or a steam whistle to be placed and kept on all locomotive engines and cause the bell to be rung or whistle sounded at a distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and keep the bell ringing and whistle sounding until within fifty feet of said crossing.

(7) Failure to keep a watchman at the crossing to operate a warning bell or to raise or lower the gates when trains were approaching in violation of rule 2 of General Order 106 of the Illinois Commerce Commission.

(8) In negligently and carelessly starting the train in motion after first having struck the automobile in which plaintiff was riding and having come to a stop.

(9) In failing to cause the bell to be rung or steam whistle blown, in violation of paragraph 84, chapter 114, vol. 7, Callahan's Illinois Statutes.

(10) In operating a train of cars over the crossing without having a brakeman stationed upon the rear or hindmost car of said train.

(11) In operating a locomotive engine and train at the aforesaid place without having a brilliant and conspicuous light on the rear car of said train while the train was backing in the nighttime. All in violation of section 1247 of the Revised Code of the City of East St. Louis, Illinois

— and then alleged the character of the injuries she had suffered. Specifications 9, 10, and 11 were withdrawn from consideration of the jury by instructions given at the request of defendant.

The answer to the second amended petition, after denying generally the allegations of the petition, pleaded contributory negligence and the law of the state of Illinois to the effect that, if negligence on the part of the plaintiff directly caused, or contributed to cause, the injuries complained of, plaintiff was not entitled to recover. The answer then pleaded a large number of cases of the appellate courts of the state of Illinois in support of the foregoing allegation.

The answer also contained an allegation that section 1247 of the Revised Code of the City of East St. Louis, Ill., a violation of which was relied upon as the eleventh ground of negligence, was unenforceable and void, and had been abrogated by the passage of the Public Utilities Act of the state of Illinois and that such ordinance was held unenforceable and void by a decision of the Supreme Court of Illinois pleaded in the answer.

The reply was a general denial and then pleaded a long list of cases having reference to injuries occurring at public crossings at, near, or on the tracks of a railway company.

The defendant alleges error in many rulings of the court, the first of which is that the court erred in refusing to grant its peremptory instructions directing a verdict in favor of the defendant.

The accident, which is the basis of the suit, occurred on June 4, 1928, a short distance south of Black Bridge, at or near East St. Louis, Ill., at about 2:30 a. m. Plaintiff, who lived in Chicago, received a telegram on the 3d of June, 1928, advising her that a sister who resided in St. Louis had died. Plaintiff owned a Chevrolet automobile and concluded to make the trip to St. Louis in her car. At her request a Mr. Pauley Brown, an employee of the Chicago Motor Coach Company, a friend of hers, agreed to accompany her on the trip. These two left Chicago about 2 p. m. on June 3, the two alternating in driving, but Brown was at the wheel most of the time. They made several stops for sandwiches and to buy gas and oil. Plaintiff was doing the driving when Granite City, Ill., was reached but at that point Brown again took the wheel and was driving at the time of the collision. There are a number of tracks at the place of the accident, and Brown brought the automobile to a full stop just a few feet north of the north rail of the first track. At that time the crossing ahead was clear, but both plaintiff and Brown noticed a string of cars, which they say were standing, a few feet west of the crossing. Plaintiff's testimony is that when the automobile stopped for the crossing she saw a string of box cars to her right "which just faded out," so she did not know whether there was an engine attached to the cars or not when Brown started to drive over the crossing. The testimony is indefinite as to the distance the end of the freight car was west of the crossing, but according to Brown it was approximately five feet. Brown's testimony is to the effect that, if his car had moved nineteen feet from the point from which he started, after stopping for the crossing, the automobile would have been in the clear, but, just as the rear of the car was clearing the south rail of the track on which the cars had been noticed, the stirrup of the box car caught the rear fender of the automobile and swung the machine around so that it was pushed along by the moving train for a distance of from forty to sixty feet. The automobile was not turned over, but was pulled around so that it was parallel with the train. Aside from a bump on her head, plaintiff was not injured up to this point. When the train came to a stop, the driver, Brown, got out of the car, and plaintiff, unable to get out on the side on which she was riding because the door was jammed, slid over under the wheel and was in the act of alighting when the train pulled to the west, and that movement caused the automobile to move to the west, resulting in plaintiff being thrown to the ground. As the train moved to the west the automobile became disengaged from the train at a point approximately twenty feet from the place where the car stood when the first stop was made. Plaintiff testified that she was dragged along between the tracks over the rock ballast for a distance of fifteen or twenty feet by reason of her coat being caught on some part of the automobile. The coat was described as being of very light material, probably serge, and was only torn slightly. Plaintiff weighed at the time from 135 to 138 pounds. Plaintiff also testified to the injuries she suffered. The crossing gates were up; Mr. Brown had been over the crossing before, at night, and stated that previously he had always seen lanterns hanging on the gates and the gates in operation, but he had never passed the place between midnight and 6 o'clock in the morning. Mr. Brown testified that upon bringing the automobile to a stop he saw some box cars standing four or five feet east of the crossing, but they looked like dead cars standing there; that there were no cars moving in the vicinity at the time; he heard no sound at all; he heard no whistle or bell and saw no light; that there was no switchman or brakeman on top of the cars swinging a lantern and there was no crossing watchman there. Plaintiff also testified that upon the automobile coming to a stop Mr. Brown looked in both directions; that the train was standing there stationary and no warning was given by lights or in any other way indicating any approaching movement of the train; that, as the automobile was being pushed eastwardly by the train, a man carrying a lantern climbed the ladder on the north side of the box car next to the rear car of the train. When the train started forward, Brown states he was thrown down, and when he looked up he saw the brakeman running after the train; that the brakeman grabbed an air lever at the rear of the train and brought it to a stop.

The plaintiff introduced and read in evidence rule 2 of the General Order...