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

• Decision Date: 12 December 1955
• Docket Number: No. 2,No. 44545,44545,2
• Parties: Raymond J. DICKERSON, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Appellant
• Court: Missouri Supreme Court

Page 568

284 S.W.2d 568

Raymond J. DICKERSON, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Appellant.

No. 44545.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1955.

Warner Fuller, Arnot L. Sheppard, St. Louis, for (defendant) appellant.

Morris M. Rosenthal, Charles E. Gray, St. Louis, for respondent.

EAGER, Presiding Judge.

This is a suit by respondent for damages for personal injuries sustained when a switch engine, owned and operated by appellant, ran into a truck in which he was riding with two co-employees of General Motors. A verdict was returned in plaintiff's favor for $25,000 and defendant has appealed.

The place involved was the Chevrolet plant of General Motors in St. Louis. The plant and yard were fenced and are not open to the public; all switching operations were conducted exclusively by defendant, which owned all the equipment but not the tracks. Plaintiff, whose usual occupation had been that of a hod carrier, had just gone to work at this plant as a 'sweeper' and was working his third day. He was then thirty-four years old and, according to his testimony, in sound physical condition. Some time shortly prior to 6:30 p. m. on November 26, 1952, and well after dark, he and two co-employees, James Reynolds and Jesse Whitehorn, took a one and one-half ton truck from the 'passenger line dock' to the 'mill-dock' to load and haul away some rubbish. Reynolds drove the truck and had been assigned as a driver for the past two years; he had also driven a truck there previously 'off and on' during the period of his eight-year employment. Whitehorn had worked in the plant nine years as a porter.

There were several places within the plant where roads or driveways crossed the railroad tracks; apparently the tracks were used solely for the purpose of switching and bringing in and taking out materials and finished products. The switch engines were equipped with bells and whistles. It appears that certain other crossings within the plant were protected by bells, lights or watchmen, but none of these was provided at the crossing where this collision occurred. On the way to the 'mill-dock' the truck used one of the other crossings and plaintiff had never previously been over the crossing where the injury occurred.

At the crossing in question there were three railroad tracks running north and south, crossed by a concrete east and west roadway 17.5 feet wide. A 'lead' truck or spur curved off to the southeast from a point a little south of the crossing; this 'lead' track passed a corner of the power house approximately 360 feet from the crossing. This track was known as the 'Fisher' lead. The 'mill-dock' was approximately fifty feet southwest of the nearest point of the crossing, and the roadway from it curved to the right approaching the crossing, so that as it straightened out, a vehicle was practically on the crossing. At the time in question there was at least one freight car on a track east of the 'mill-dock' which obscured the view to the east and southeast. There was also at least one freight car, and probably more, standing on the middle track of the three tracks immediately south of the crossing in question, and extending up to a few feet (probably five to ten) from the edge of the driveway; these blocked the view to the south of one driving east.

Plaintiff and his co-employees left the 'mill-dock' in the truck and proceeded to the crossing at about five miles per hour; plaintiff was on the right, Reynolds was driving and Whitehorn was in the middle. The right window was closed, the left partially open. The truck proceeded slowly across the tracks and as the cab of the truck got 'past the boxcars' standing on the middle of the three tracks plaintiff saw the big light of the engine almost upon them; he shouted to the driver, but the front end of the truck was already on the last truck and the engine struck the truck just back of the cab, pushing or knocking it approximately twenty-five feet and turning it over. Plaintiff had been looking forward until he cleared the boxcars. The train was traveling about twenty miles per hour, according to the only evidence thereon, which was 'faster than usual.'

Plaintiff testified: that he did not at any time hear any bell or whistle and did not see the beams of the headlight until he got past the boxcar; that he was not 'just exactly listening,' and did not remember definitely whether they were talking; he had been 'just looking ahead'; he 'depended' on the driver; that the headlights of the truck were on and that he had not seen or heard the train go south previous to the collision. The driver testified: that he 'always' looked for trains; that there were no lights or flagman at that crossing; that he heard no bell or whistle of a locomotive at any time and heard no train; that he did not know whether he particularly 'listened' or not; that this driveway was used day and night for hauling rubbish from the mill and other material; that on prior occasions he had heard the bells and whistles of the locomotives; at one point this witness said that if he heard the sound of the train or any bell or whistle on this occasion 'I don't remember'; that when plaintiff shouted, he stepped on the gas bacause part of his truck was already on the track where the train was; he did not recall seeing the engine go south previously. The other employee (Whitehorn) was sitting in the middle; he testified: that while at the 'mill-dock' he did not hear or see any engine on those tracks; that Dickerson shouted when they were on the tracks and the driver 'speeded up,' but they were struck; that the boxcars obstructing the view were 'pretty close' up to the driveway; that he heard no bell or whistle and when he looked around he 'looked right at the engine'; that he had not previously seen the light from the engine; that he 'depended' on the driver. Both Reynolds and Whitehorn testified, over objection, that they would have been able to hear a bell or whistle if such had been sounded.

A watchman of General Motors, as witness for plaintiff, testified that he was located in a tower 35-40 feet high and considerably north of the crossing; that he saw the headlight on this engine as it came around the corner of the power house (360 feet from the crossing) and heard the bell as it 'came around the curve'; he did not hear any whistle. He did not testify how long the bell continued sounding and stated that he did not know; he could not see the collision, but heard it.

The defendant put on no evidence. The extent of plaintiff's injuries and other material facts will be referred to later in this opinion. The case was submitted to the jury on the issue of negligence in failing to sound a whistle or bell when approaching and entering the crossing. It will be impossible in this opinion to discuss all the cases appellant has cited. The parties will be referred to as they appeared below.

Defendant first contends that there was no duty to warn under the circumstances, and certainly no duty to warn by any particular method. Although the statute requiring specific warnings at public crossings, Section 389.990, RSMo 1949, V.A.M.S., does not apply, yet there is a common law duty to use reasonable care to avoid injury at all crossings, public or private, by warnings or otherwise. Boland v. St. Louis San F. Ry., Mo., 284 S.W. 141, 145; the statute is merely cumulative of the common law and provides the minimum requirements. Hackett v. Wabash R. R., Mo., 271 S.W.2d 573, 577; Hoelzel v. Chicago R. I. & P. Ry., 337 Mo. 61, 85 S.W.2d 126, 129-130. Also, the situation here is quite different from those involving private crossings established merely for the benefit of the landowners; here defendant was operating in this plant for the joint benefit of itself and General Motors, knowing that employees must and did frequently cross its tracks. We hold that there was a common law duty to warn. Arguendo, we may concede that any one of various methods of warning would be sufficient if actually used, though certainly the usual method is by bell or whistle. Hackett v. Wabash R. R., Mo., 271 S.W.2d 573, 577. In the present case the evidence involved the sounding, or failure to sound, of a bell or whistle and we may consider the issues as so joined, although the failure to sound a whistle was not specifically pleaded. No objection was made when evidence was offered to show the lack of a whistle and the pleadings are considered as amended. Section 509.500 RSMo 1949, V.A.M.S.

Defendant contends that no jury issue was made on the failure to ring the bell. This is based on the fact that plaintiff produced the General Motors watchman, Plessing, as a witness and he testified that he heard the bell ringing; so, defendant says, plaintiff is bound by this affirmative testimony because there was no substantial evidence to contradict it. It would extend this opinion greatly to consider the argument in detail; briefly, its substance is that the testimony of the occupants of the car that they heard no bell is mere negative testimony and that parts of their own testimony showed inattention. The latter is based on such statements as plaintiff's that he was not 'just exactly listening' and of the driver (after stating directly twice that he heard no bell or whistle) that 'If I did, I don't remember.' Defendant cites many cases, such as Knorp v. Thompson, (Banc), 357 Mo. 1062, 212 S.W.2d 584, 5 A.L.R.2d 103, and McCreery v. United Railways Co., 221 Mo. 18, 120 S.W. 24. The substance of the cited cases seems to be that if the ones who say they did not hear a whistle or bell were so situated or so inattentive that they would probably not have heard it, or if their evidence is otherwise incredible, then that testimony does not constitute evidence sufficiently substantial to controvert the affirmative testimony and create an issue. But if those who so testify are fairly in a position to hear, and are...