Fledderman v. Manufacturers' Ry. Co

• Decision Date: 26 June 1923
• Parties: FLEDDERMAN v. MANUFACTURERS' RY. CO.
• Court: Missouri Court of Appeals

254 S.W. 717

FLEDDERMAN v. MANUFACTURERS' RY. CO.

St. Louis Court of Appeals, Missouri.

June 26, 1923.

Rehearing Denied July 12, 1923.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Fred D. Fledderman against the Manufacturers' Railway Company, Judgment for plaintiff, and defendant appeals. Affirmed.

Nagel & Kirby and Everett Paul Griffin, all of St. Louis, for appellant.

Fagin, Kane & Schreiber and Mark D. Eagleton, all of St. Louis, for respondent.

DAUES, J.

This is an action for damages for alleged personal injuries to plaintiff as the result of being struck by, defendant's train at a grade crossing in the city of St. Louis. Plaintiff recovered a verdict of, $7,000. The trial judge deemed this verdict excessive to the extent of $2,000, and directed a remittitur of $2,000. Plaintiff complied, and accordingly a judgment was entered for $5,000, from which the defendant has appealed.

Plaintiff was a teamster employed by Anheuser-Busch, Inc., and on the afternoon of May 22, 1919, drove a team and wagon east on Dorcas street, which is a public street and runs east and west, driving towards the intersection of Lyon street, which runs north and south. As he approached Dorcas street, plaintiff stopped, looked, and listened, but said he was unable to hear or see anything in the nature of a train approaching. At that time he was yet clear Of defendant's railroad track, which (east of Lyon street) runs from the yards on the south side of Dorcas street into said Dorcas street, and west on said street. Plaintiff attempted to cross the track, and just before he got on the track he looked again and did not see anything, but when his horses got upon the track he saw a train of cars coming, moving westwardly on Dorcas street. Dorcas street, it appears, was of about the average street width. One track runs directly east and west from the Anheuser-Busch plant eastwardly to Second street. There is a switching track which leads onto the main and west track. This switching track runs south of Dorcas street and meets the main track at a point about 80 feet west of a building which is located at the southeast corner of the intersection of Dorcas and Lyon streets. Before same reaches. Dorcas street, however, this switching track runs in a direction from the southeast to the northwest, and there is evidence that the nearest rail of the switching track is 6 feet from the building located at the southwest corner of the intersection of Dorcas and Lyon streets, so that we have but one track running east and west on Dorcas street and a switching track which connects this east and west track from the south.

It is plaintiff's testimony that the turned his team to the left after he got near or upon the track so as to attempt to clear both tracks—that is, the main track and the switching track—and as far as possible get out of danger, when he started across the tracks, this occurred:

"My front wheels hit just over the track; why, when I was going over I seen the train coming. * * * I seen it coming—I tried to get over as fast as I could, and it hit me and knocked me off, and that's all I remember."

Plaintiff was struck by the train and received injuries, the nature and extent of which we will discuss in the course of the opinion.

Plaintiff said he was unable to tell exactly the distance the train was from him at the time he first saw it, but that "it was a good distance from me; I don't know how far." When asked whether he would estimate the train at 100 feet away, he answered that he could not tell exactly; that it was "a good distance away," and that he was whipping his horses to hurry across to avoid a collision.

Witness Albert Slamp, who at the time was standing at the intersection of Dorcas and Lyon streets, testified that he saw plaintiff stop his team before attempting to cross the track. This witness placed the engine about 150 feet from the plaintiff at the time plaintiff started across the track. This witness testified also that he heard no whistle or bell being sounded by the trainmen; that after the train had struck the wagon the train continued on for as much as 30 feet farther before same was stopped.

Witness Henry Christian, an employé of Anheuser-Busch, testified that he saw the plaintiff stop his team before attempting to cross the track; that plaintiff "slackened up and sort of stopped. * * * guess he was a few feet on the south side of the track. * * * He stopped a little and then started off again." He testified that, as the plaintiff started across the track, the engine was about 180 to 200 feet from the plaintiff, and that the train at the time was moving at about the rate of 25 miles an hour.

Plaintiff called Frank Maskow, defendant's foreman, as a witness, who testified that defendant's train on this occasion, which he was then assisting in operating, consisted of an engine shoving three cars of coal up the hill; that each car was about 42 feet long; that the engine was in the rear bushing the cars ahead; that his train at that time was moving at the rate of about 6 or 8 miles an hour; that he saw plaintiff stop his team at a point near the switching place and about 80 feet west of the rail or switch track crossing the building line on Dorcas street; that he then gave the signal to the engineer to go ahead; that when plaintiff started his team across the track the extreme end of the car nearest to the plaintiff was 63 feet away from the plaintiff. This witness was asked the following questions and gave the following answers:

"Q. Within what space could you stop a train with three carloads such as you had on that day, going 6 or 8 miles an hour, having in mind the grade that was there that day? What do you say about that, Mr. Maskow? A. At that special place? Q. Yes. A. Put on all the brakes, and you can stop in 10 or 15 feet.

"Q. Ten or 15 feet? A. Yes. * * *

"Q. Going 6 or 8 miles an hour, you can stop in 10 or 15 feet? A. Yes; sure."

This witness was riding at the west end of the westernmost car, and testified that after seeing plaintiff the train moved a distance of 63 feet before plaintiff was struck.

For the defendant, Eugene Scanlon, a switchman, who was also on the west end of the train, testified that when he first saw plaintiff attempting to cross the track, plaintiff was about 80 feet from the nearest part of the train, estimating the distance by saying about two car lengths, or 80 feet. This witness stated, however, that the train had proceeded 40 or 50 feet before the plaintiff actually began to drive over the tracks; that the train was moving from 6 to 8 miles an hour at the time. These questions and answers appear in this witness' cross-examination:

"Q. Having in mind the grade and the conditions of the roadbed, your cars, your equipment, and everything else that prevailed that day, in what time or what space can you stop a car going 6 miles an hour? A. At that particular point? * * * About 15 feet.

"Q. And did he stop in 15 feet after the time you gave the signal on this occasion? A. I should judge 15 feet."

The engineer, Charles Price, testifying for defendant, said he got the signal from the switchman as he approached Dorcas street, and that he stopped immediately upon receiving same; that the train as then equipped and under the conditions then present could be stopped within 15 feet. The train crew, as defendant's witnesses, testified further that when they gave the signal to come ahead, plaintiff's team was standing still, clear of the tracks, and that at the time the signal was given plaintiff started over the tracks, and that the train was stopped as soon as possible after the signal to stop was given.

On the question of the extent of the injuries received by plaintiff, plaintiff relies upon his own testimony and that of Dr. E. B. Kinder, a medical expert. The evidence tends to show that plaintiff received injuries to his head, back, right shoulder, right shoulder blade, and his knees, and that he was unable to do any work from May, 1919, to September, of that year; that he suffered pain and discomfort constantly from the injury, and that many of his injuries are permanent.

Dr. Kinder testified that he examined plaintiff a year and a half after the injury, and at that time found the left knee very much swollen about the knee...