Finley v. Illinois Cent. R. Co.

• Decision Date: 16 September 1952
• Docket Number: No. 28466,28466
• Citation: 251 S.W.2d 713
• Parties: FINLEY v. ILLINOIS CENTRAL R. CO.
• Court: Missouri Court of Appeals

Page 713

251 S.W.2d 713

FINLEY v. ILLINOIS CENTRAL R. CO.

No. 28466.

St. Louis Court of Appeals, Missouri.

Sept. 16, 1952.

Motion for Rehearing or to Transfer to Supreme Court Denied

Oct. 17, 1952.

Watts & Gentry, St. Louis, Joseph H. Wright, Chicago, Ill., of counsel, Charles A. Helsell, Herbert J. Deany, Chicago, Ill., for appellant.

Walther, Hecker, Walther & Barnard, Harold F. Hecker, George W. Cloyd Edward W. Tobin, Edward A. Haid, St. Louis, for respondent.

HOUSER, Commissioner.

This is an action for damages for the death of Leslie Ray Finley, age 8, arising out of a collision between an automobile and one of defendant's passenger trains. Plaintiff is Ray E. Finley, father and administrator of the estate of the deceased. A trial in the Circuit Court of the City of St. Louis resulted in a judgment of $6,000 in favor of plaintiff. From the judgment the defendant railroad appealed.

The collision occurred in the City of Centralia, Illinois at 12:30 o'clock A.M. on July 10, 1949 at the McCord Street crossing of defendant's tracks, which at that point run north and south. McCord Street runs east and west. Passenger train No. 3 was southbound and plaintiff's automobile was westbound at the time of the collision. The principal street through the city for east and west traffic is Broadway but due to street repairs the Broadway crossing of the railroad tracks had been closed for 2 weeks prior to the accident, and traffic had been detoured or re-routed over the McCord Street crossing, which is 2 blocks north of the Broadway crossing. McCord Street is 30 1/2 feet wide. At the intersection of the railroad right-of-way and McCord Street a westbound motorist approaching the railroad crossing finds buildings on both his right and left. On the right or north side of McCord Street is the Goodale Building, a 2-story building facing 50 feet on McCord Street and 150 feet along the railroad right-of-way. The southwest corner of the Goodale Building is 29 feet north of the north edge of the slab on McCord Street. Immediately north of the Goodale Building there is a 1-story corrugated metal building. On the left or south side of McCord Street is the Oil Well Supply Company Building. Approaching the crossing from the east there is a standard crossbuck railroad crossing sign 6 feet north of McCord Street and approximately south of the southwest corner of the Goodale Building. Two or 3 feet east of the crossbuck sign there is another sign which is only 3 1/2 or 4 feet above the ground, made of metal with illuminable buttons on it, bearing the words 'Watchman off duty.' This sign customarily was covered all day while a watchman was on duty but when the watchman left for the night he would remove the cover and expose the wording on the sign. There was no watchman on duty at the time of the collision. The watchman went off duty at 10 o'clock P.M. There were no gates, electric bells or automatic flashing lights at the crossing. Four sets of standard gauge railroad tracks traverse the crossing. Each set of tracks is 4 feet 8 1/2 inches from the inside of one rail to the inside of the other. Proceeding west there is a spur or house track 6.4 feet west of the southwest corner of the Goodale Building. This track ends at the south face of the building and does not cross McCord Street. The first set of tracks which cross McCord Street is another spur track. Its east rail is 8 feet west of the west rail of the first spur track and is 19 feet from the corner of the Goodale Building. The second is a switch track. Its east rail is 5 feet west of the west rail of the second spur track. The third is the northbound track. Its east rail is 9 1/2 feet west of the west rail of the switch on which the train was running. Its track on which the train was running. Its east rail is 10 feet west of the west rail of the northbound track and 57.42 feet west of the southwest corner of the Goodale Building. There is a watchman's shanty located about 20 feet north of the north edge of the concrete slab of McCord Street and a few feet west of the southbound tracks.

Defendant contends that the court should have directed a verdict for defendant and that now this court should enter judgment for defendant notwithstanding the verdict of the jury because as a matter of law defendant was not negligent, and plaintiff did not exercise due care. Defendant further asserts that in any event the court erred in the giving and refusing of instructions.

The following assignments of negligence were submitted to the jury: (a) operating the train at a high, dangerous and excessive rate of speed under the circumstances; (b) failure to sound a warning as required by statute; (c) failure to slacken the speed of the train after discovering the peril of the occupants of the automobile.

Was defendant negligent? This question is to be determined in accordance with the laws of the State of Illinois on the basis of the evidence most favorable to plaintiff. Plaintiff, driving his 1937 2-door Chevrolet automobile in which his wife and child were riding, entered Centralia from the east, proceeded west on Broadway, detoured on the first street east of the Illinois Central tracks on account of the street repairs at the Broadway crossing, went 2 blocks north to McCord Street where he stopped for a stop sign, then turned left or west into McCord Street and continued until he came to the crossbuck railroad crossing sign. It was not a 'real dark' night nor was it 'real clear'; it was about an 'average' night. Plaintiff was familiar with the location and knew of the railroad tracks. He saw the crossbuck sign before he made the stop but did not observe the other sign or whether the words 'Watchman off duty' showed at the time of the accident. Two or more boxcars were on the Goodale siding when he stopped at the crossbuck sign. They were sitting 'sort of to the south edge of the building' and he could not see north because of the building and the boxcars. At the crossbuck railroad crossing sign plaintiff stopped his automobile, looked and listened. His eyesight and hearing were good. He could see no train. He did not see any electrical headlight coming from the north. He heard neither whistle nor bell. No whistle sounded and no bell was ringing. The whistle, if blown, could have been heard for 2 or 3 miles. The window on his side was open. On the other side the window was half way down. When he stopped the front of his car was right at the first spur track as it would have been if it had extended across the street. He started up in low gear, applied the gas and went about 8 or 10 feet before shifting into second gear. When he started on to the west he looked to the south because the northbound track was the nearest. When he looked to the south 'they have a bunch of floodlights down there and then other lights also and it confuses you, you can't tell whether it is a train or what it is, and I still couldn't figure out whether it was a train or what it was to the south, but it was those floodlights * * *.' He looked over to the watchman's shanty thinking that perhaps there would be a watchman there but saw no one. Not seeing any watchman he was looking out for himself. He proceeded about 8 or 10 feet before shifting into second gear and was then traveling about 7 or 8 miles per hour. When he looked to the north he for the first time saw the front of the locomotive coming toward him very fast on the southbound track, 40 or 45 miles per hour, maybe faster, and apparently about 50 feet away. His front wheels were in the path of the train. He was sitting 5 or 6 feet back of the bumper of his automobile and when he first saw the locomotive his body was in the center of the northbound track and the front of his automobile was near the southbound track. Plaintiff's brakes were in good condition. He could stop the automobile in 8 or 9 feet at the speed of 7 or 8 miles per hour. If he had stopped when he first saw the train he would have stopped right square in the track. All he could think of was 'getting clear.' He tried to 'get clear of it.' He was 'already on the track' and he 'tried to get clear.' When he saw the train he stepped on the gas and tried to get out of its path--attempted to quicken his speed, and got it up to 10 or 12 miles per hour. The speed of the train did not change from the time he first saw it until the collision occurred. The train struck his right rear wheel. Plaintiff never did see the electric headlight or see the train with lights in it nor did he hear the roar of the train or the clicking of the wheels on the rail joints or the sound of the bell or whistle until the last moment when he looked and saw the engine was 'right there.' The floodlights located near the Broadway crossing 2 blocks south 'shine up the railroad there.' They 'lit it up where it was pretty light there.' There were 2 floodlight towers south of the crossing 30 feet high which cast their beams down on the Broadway crossing at a 45-degree angle. They had 200-watt bulbs in them. There were other light towers in front of the depot located at the Broadway crossing which shone their beams straight north and south from the depot and which contained 250-watt bulbs. There were 6 of these 250-watt lights shining north from the platform, 2 near Broadway, 2 near the station, and 2 further south, all equipped with reflectors to make floodlights.

Certain interrogatories propounded to defendant revealed that on July 9 McCord Street was designated and used as a public highway across defendant's tracks in lieu of Broadway; that defendant did not issue any instructions to its train crews with reference to the use of McCord Street as a public highway; that the locomotive was about 80 to 100 feet from McCord Street when the fireman first saw the automobile; that at that time the train was traveling about 35 to 40 miles per hour; that a full service application of the brakes was made by the engineer when he...