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

• Decision Date: 05 October 1937
• Docket Number: No. 24296.,24296.
• Citation: 108 S.W.2d 982
• Parties: DODD v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

108 S.W.2d 982

DODD v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 24296.

St. Louis Court of Appeals. Missouri.

October 5, 1937.

Rehearing Denied October 19, 1937.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Action by Edgar C. Dodd, a minor, by Della Dodd, his next friend, against the Terminal Railroad Association of St. Louis. Judgment for plaintiff, and defendant appeals.

Affirmed.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

Joseph Goodman, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff on April 9, 1935, when an automobile in which he was riding was struck by a switch engine owned and operated by defendant, Terminal Railroad Association of St. Louis. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $2,000. Judgment was rendered accordingly, and defendant's appeal to this court has followed in the usual course.

The accident occurred about 4:35 o'clock in the afternoon at the intersection of McKissock avenue and Withers street, in the city of St. Louis.

McKissock avenue runs north and south, while Withers street runs east and west. Each street is approximately thirty feet in width. Withers street is the more adapted for vehicular traffic, being paved with asphalt, and having no tracks of any character upon it. However, on McKissock avenue defendant has double tracks lying generally upon the east side of the street, the track to the east being used for northbound traffic, and the track to the west for southbound traffic.

Plaintiff, a young man nineteen years of age, was employed at the time by the Artistic Furniture Company, which has its office or plant upon the southeast corner of the intersection of McKissock avenue and Withers street.

At the close of work on the day in question, plaintiff left the plant in company with three fellow employees, and crossed over to the north side of Withers street, where one of their number, Case by name, had left his automobile parked at a point about one hundred feet east of McKissock avenue. It appears that all four men lived in the same general neighborhood, and quite frequently would ride home from work together in Case's automobile.

Case, of course, took his position behind the wheel, while plaintiff sat with another of the men in the rear seat. Case, being the driver, had been the more attentive to what had occurred, and constituted plaintiff's chief witness as to the facts leading up to the collision. According to his testimony, he started up his automobile and drove slowly out towards and into McKissock avenue, and was actually upon the northbound track before he discovered the approach of the train to his left, then only fifteen feet away from him. Appreciating the fact that stopping would be of no avail, he turned slightly to the right in an attempt to get clear of the track, but was unsuccessful in averting the accident, the front of the engine striking the left rear side of the automobile, which was then pushed down the track for some forty or fifty feet before the train was brought to a stop.

So far as concerns the several matters upon which issue was joined under the pleadings, it is enough to say that the sole question preserved for our consideration on this appeal is that of whether there was substantial evidence adduced to warrant the submission of the case to the jury upon the ground of defendant's statutory negligence, of any, in having failed to ring the bell at a point at least eighty rods from the crossing and to have kept the same ringing until the crossing had been passed. From the very nature of the fact to be proved, plaintiff was compelled to base his case upon negative evidence, and defendant now argues that as against its own contrary positive evidence, plaintiff's negative evidence was wholly lacking in probative force the circumstances of the case, and the respective situations of plaintiff and his several witnesses considered. It insists, therefore, that no case was made for the jury upon the theory of negligence relied upon by plaintiff, and that its requested peremptory instruction in the nature of a demurrer to all the evidence should consequently have been given.

...