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

• Citation: 41 S.W.2d 796,328 Mo. 826
• Parties: Sam Crossno v. Terminal Railroad Association of St. Louis, Appellant
• Decision Date: 05 September 1931
• Court: United States State Supreme Court of Missouri

41 S.W.2d 796

328 Mo. 826

Sam Crossno v. Terminal Railroad Association of St. Louis, Appellant

Supreme Court of Missouri

September 5, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Reversed and remanded.

J L. Howell and Roy W. Rucker for appellant.

(1) The demurrers offered by defendant should have been given, for the reason that it consistently appears that plaintiff stepped immediately in front of a moving train when he could have seen the train had he looked before stepping onto the track. Sublett v. Terminal, 267 S.W. 622; Kirkland v. Bixby, 222 S.W. 462; Dryez v Railroad, 238 Mo. 46. (2) Plaintiff went to the jury only on an instruction as to the measure of damages. There was no evidence to sustain the alleged acts of negligence sought to be withdrawn from the consideration of the jury by withdrawal instructions C, D, E, F, and G. Plaintiff did not withdraw them by offering an instruction outlining his theory of negligence, and the withdrawal instructions should have been given. Willis v. Applebaum, 26 S.W.2d 825. Plaintiff should not have been permitted to give testimony concerning the practice of railroad companies, other than the defendant with references to the custom of placing a switchman upon the front car.

Louis E. Miller and Allen, Moser & Marsalek for respondent.

(1) The demurrer to the evidence was properly overruled. (a) There was ample evidence of negligence on the part of defendant's servants, in backing the train through the yards of another company, at night, at a place where persons were likely to be at all times, without having a man on the advancing end of the train, and without a light on the end car, and without a warning or signal of any kind, contrary to the established practice and defendant's own rules. Cotner v. Railroad Co., 220 Mo. 284; Kinney v. Met. St. Ry. Co., 261 Mo. 113; Kippenbrock v. Railroad Co., 270 Mo. 479; Becke v. Ry. Co., 102 Mo. 550; Beard v. Ry. Co., 272 Mo. 157; Le May v. Ry. Co., 105 Mo. 370; Willi v. United Rys. Co., 205 Mo.App. 287. (b) The plaintiff was not guilty of contributory negligence, as a matter of law, in failing to discover the approach of defendant's train around the curve in the track, the vicinity being dark, and the train backing, in violation of the rule and custom, without signal or warning of any kind, and without a man or light on the advancing end of the cars. Kinney v. Met. St. Ry. Co., 261 Mo. 111; Kerr v. Bush, 198 Mo.App. 612; Kerr v. Bush (Mo. App.), 215 S.W. 393; O'Connor v. Ry. Co., 94 Mo. 150; Church v. Ry. Co., 119 Mo. 203; Lueders v. Railroad Co., 253 Mo. 116; McQuitty v. Ry. Co., 196 Mo.App. 450; Stephans v. Railroad Co. (Mo. App.), 199 S.W. 274; Aleckson v. Ry. Co. (Mo. App.), 213 S.W. 896. (c) The question of contributory negligence is one for the jury where the facts are in dispute, or where from admitted facts different conclusions could reasonably be drawn. Gratiot v. Ry. Co., 116 Mo. 450; Church v. Railroad Co., 119 Mo. 203. (2) The court did not err in refusing defendant's instructions C, D, E, F and G. (a) All of said assignments of negligence were properly for the jury's consideration. Authorities, supra (a) and (b). (b) These instructions would have wrongfully withdrawn from the jury's consideration facts they were entitled to consider on the issue of contributory negligence. Grott v. Shoe Co. (Mo. Sup.), 2 S.W.2d 785; Maloney v. U. Rys. Co. (Mo. Sup.), 237 S.W. 509; Murphy v. Railroad, 115 Mo. 125; Waller v. Railroad, 83 Mo. 608; Martin v. Coal Co., 174 Mo.App. 441. (c) Withdrawal instructions should be unambiguous, and not leave the matters to be withdrawn in doubt, or intermingled with other matters properly before the jury. Schulz v. Smercina (Mo. Sup.), 1 S.W.2d 119; Komar v. Fdy. Co. (Mo. App.), 300 S.W. 1028; Latham v. Hotsch, 207 Mo.App. 381; American Auto Ins. Co. v. Rys. Co., 200 Mo.App. 317; Kinlen v. Rys. Co., 216 Mo. 162. (d) The record does not show that the petition was read to the jury, and, therefore, it does not support the contention that harmful error was committed in refusing to withdraw assignments of error set out in the petition. Error on the part of the trial court will not be presumed on appeal, but must be definitely shown by the record. Secs. 821, 1513, R. S. 1929; Weber v. Bread & Baking Co. (Mo. App.), 15 S.W.2d 374; Palmer v. Transfer Co. (Mo. Sup.), 209 S.W. 882; Fiorella v. Jones (Mo. Sup.), 259 S.W. 785. (3) The court did not err in admitting evidence of the general practice and custom of railroad companies to have a man at the advancing end of a backing train. The evidence was material both on the issue of defendant's negligence and plaintiff's alleged contributory negligence, the accident having occurred in the switch yard of a company other than defendant, and on a track likely to be used by a number of railroads. Point 1 (a) and (b); Point 2 (b). (4) It is not the province of an appellate court, in any jury case, to weigh conflicting testimony. Gannon v. Gas Co., 145 Mo. 502; Reid v. Ins. Co., 58 Mo. 429; Daniel v. Pryor, 227 S.W. 104; Holzemer v. Ry. Co., 261 Mo. 411.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Plaintiff brought this action against the defendant, Terminal Railroad Association of St. Louis, a corporation, for damages for personal injuries suffered when he was struck by a cut of freight cars which were being moved by the defendant company through what is known as the "Q" yards in East St. Louis, Illinois. The plaintiff had a verdict for $ 12,000, and from the judgment entered thereon, its motion for a new trial having been overruled, the defendant appealed.

Plaintiff's petition made conventional and formal allegations, recited plaintiff's injuries and charged seven specific and separate acts of negligence on the part of defendant, as follows:

1. Failure of the defendant to give any warning by bell or whistle of the approach of a train;

2. Failure of defendant to give notice by bell, whistle or otherwise that cars were to be diverted and the course of the cars changed from a southerly to an easterly direction;

3. Failure of defendant to keep a lookout or watch for pedestrians;

4. Failure of defendant to maintain a trainman in a conspicuous position on the leading car of the train of box cars;

5. Failure of defendant to maintain a light upon the first car;

6. That defendant knew or should have known of the custom to maintain a trainman on the front car in a conspicuous position, and that the defendant knew or should have known of the custom to keep a light on the front car;

7. For violation of the humanitarian rule.

Defendant's answer was a general denial, coupled with a plea of contributory negligence.

Plaintiff was injured on the 5th day of February 1927, at about eleven o'clock P. M. He was an unmarried man, forty-two years of age, and regularly employed by the defendant company as a switchman. This action, however, is not bottomed upon the relation of master and servant. We undertake to describe the situation existing at the point where plaintiff claims to have been injured and the immediate vicinity thereof as shown by the exhibits introduced in evidence and the other evidence in the case. Front Street, or Levee Street, is a public thoroughfare of the city of East St. Louis, Illinois, running in a general north-and-south direction. This street is occupied by a number of railroad tracks and is also used by ordinary traffic. Along the east side of Front Street, in the district north of the Eads bridge, is the freight yard and depot of the Chicago, Burlington & Quincy Railroad Company referred to in the record as the "Q." In the "Q" yard the tracks run generally east and west. Plaintiff was injured at a point in the "Q" yard about 250 or 300 feet east of Front Street. The track on which plaintiff was injured is referred to as the "Q connection." This "Q connection track" extends north and south on Front Street until it reaches a point between 300 to 400 feet north of the "Q" depot, where it makes a broad curve to the east and enters the "Q" yard from the west, and runs east and west through the yard. To the north of the track and inside the curve there is a rocky knoll which to some extent obscures the approach of a train around the curve. The first track in the "Q" yard to the south was 40 to 60 feet distant. This "Q connection track" was used for transferring cars into the "Q" yard from the north. A well defined and much used footpath runs north of and parallel to this track. There were a number of active switch yards and railroad tracks in the vicinity with switching operations constantly in progress, both day and night, and trains and cars in movement, causing what plaintiff terms an almost continuous "railroad noise." The uncontradicted testimony was that men employed in defendant's switch yard known as Wiggins No. 2, where plaintiff worked, and also other employees of the defendant and of other railroads in that vicinity, went through the C. B. & Q. Railroad yard, referred to in the record as the "Q" yard, and upon and across the tracks there in going to and from their places of work. At the date of his injuries plaintiff was employed by the defendant company as a switchman in its Wiggins No. 2 yard, working on a night shift which went on duty at eleven o'clock P. M. He was required to report for work at the yard office. This switch yard was located at or near the north end of Levee or Front Street. Plaintiff's testimony is, that on the night of February 5, 1927, he left his home in East St. Louis, to report for work, and that he walked west along the path on the north side of the "Q connection track," the usual route pursued by workmen in going to and from the Wiggins yard. When he...