Curlin v. St. Louis Merchants' Bridge Terminal Ry. Co.

• Decision Date: 21 June 1921
• Docket Number: No. 16527.,16527.
• Parties: CURLIN v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.
• Court: Missouri Court of Appeals

232 S.W. 215

CURLIN v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

No. 16527.

St. Louis Court of Appeals. Missouri

June 21, 1921.

Rehearing Denied June 29, 1921.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

"Not to be officially published:'

Action by Dewey Curlin against the St. Louis Merchants' Bridge Terminal Railway Company and others. From a judgment for plaintiff, the named defendant appeals. Affirmed.

J. L. Howell, W. M. Hezel, and Chauncey H. Clarke, all of St. Louis, for appellant.

Wm. R. Schneider and Thos. S. Meng, both of St. Louis, for respondent.

NIPPER, C.

This is an action for damages for personal injuries sustained by plaintiff, and alleged to have resulted from the negligence of defendant. The negligence set out in the petition is:

First. In failing to stop the engine and train of cars in time to prevent striking plaintiff, when the same could have been stopped in time to have prevented the injuries.

Second. In failing to stop the train when defendant's agents and servants saw, or by the exercise of ordinary care could have seen, plaintiff in a position of peril in time to have stopped the train and prevented the injuries.

Third. In failing to cause the bell to be constantly sounded when said engine was moving, as required by ordinances.

Fourth. In failing to cause the bell on the engine to be rung 80 rods from the crossing at Main and Ashley streets in the city of St. Louis (where the accident Is alleged to have occurred), and continue ringing until the engine crossed said crossing.

Fifth. In failing to give warning, by bet or whistle, when defendant's agents and servants saw plaintiff in a position of peril, in time to have permitted him to get out of the way.

Sixth. In violating the ordinance of the city of St. Louis which prohibited said engine and train of cars from being operated at a rate of speed in excess of 20 miles per hour.

Seventh. In violating the ordinance of the city of St. Louis requiring the defendant to keep the gates across Ashley street closed immediately before the passage of any engine, car, or train.

Eighth. In permitting said Ashley street gates to remain open, leading plaintiff to believe that it was safe for him to toss said railroad tracks.

The answer was a general denial and a plea of contributory negligence. The reply was a general denial.

The case went to the jury on the failure to close the gates as the train was approaching, the failure to ring the bell, and excessive speed. Plaintiff recovered judgment for $5,000, and defendant appeals.

There were several defendants, but the case went to the jury only as to two of them, namely, the appellant here, and the receiver of the Missouri, Kansas & Texas Railway Company. The jury found against the appellant here, and in favor of the defendant, receiver of the Missouri, Kansas & Texas Railway Company. The only issue of negligence submitted to the jury, and upon which recovery was had, so far as the remaining defendant is concerned, was the failure of the watchman having charge of the gates at Ashley street crossing to close same as the locomotive and train was approaching said crossing.

After introducing various ordinances of the city of St. Louis, plaintiff testified that at the time of the accident in question he was driving an ash wagon and a team of mules west on Ashley street, and across main street, in the city of St. Louis, when he was struck by an engine hauling a train of passenger cars over defendant's line of railway. There were four tracks running north and south on Main street at the point of the accident. Plaintiff was going west at the time he was struck. He first passed over a switch track, then the north-bound track, and then attempted to cross the south-bound track, over which the train was being operated at the time he was injured; there being still another switch track to the west. On each side of Ashley street, and across Main street, there were gates maintained by defendant, which were kept closed during the passage of trains over and across the tracks at this point. When plaintiff started upon the right of way of defendant's line of railway, the gates on the east side of Main street were open, and he drove through these gates to the east switch track. There were some box cars standing north of Ashley street on this switch track, which obstructed his view to the north. As he drove past these box cars, he heard a crossing bell at Biddle street, which is a block south of where he was at that time. No bell was ringing at the crossing of Ashley and Main streets, and on account of the ringing of the crossing bell a block south he looked in that direction to see if a train was coming, and to ascertain whether or not he could cross the tracks in safety before the train from the south, if one was coming, reached him. Seeing no train in sight, he decided he could cross the tracks before such arrived. When he was almost upon the south-bound track, he looked to the north and no deed this south-bound train only about 25 feet away, traveling at a rate of speed estimated by plaintiff at 40 or 45 miles on hour. He was immediately struck by said engine, carried quite a distance to the south, and received the injuries complained of in the petition.

There was a watchman in the tower at the time, who had an unobstructed view for several blocks to the north, and who, while testifying for defendant, stated he did not see this passenger train until it was about a block, or possibly two blocks, north of this crossing. He also gave, as his reason for not closing the gates, that, when he noticed the train approaching, plaintiff's team was then directly under the gates, and, if he had lowered them, such gates would have struck the team of mules driven by plaintiff at the time. Plaintiff had been driving over this crossing' regularly for about three years. He said he saw the gates open, and therefore thought the street was clear, just as it was when he had driven through before. We here quote from his testimony, as set out in the record, as follows:

"A. I didn't look to the north at all, because when I got up to the first main line track and I hear the bell ring up at fiddle street, a block south from me, and then I thought that the train came from the south side, and then I looked over still on the south side, and the mules kept on going the same way, and just looking over there I seen the engine and the train coming from the south side, and I whipped the mules, and I thought that the watchman get me by before the train came, and then he left his gate down the same as he always do before, and I whipped the mules, and I thought I get by before the train came, and the same time I whipped the mules I looked to the north, and I see the passenger coming about 25 or 30 feet; I don't know."

When asked the question if he depended entirely on the gateman, he answered:

"I thought the crossing was all right, the same as every time when I am driving through."

The engineer and...