Ford v. Wabash Ry. Co.

• Decision Date: 08 July 1924
• Docket Number: No. 18352.,18352.
• Citation: 266 S.W. 1032
• Parties: FORD v. WABASH RY. CO. et al.
• Court: Missouri Court of Appeals

266 S.W. 1032

FORD v. WABASH RY. CO. et al.

No. 18352.

St. Louis Court of Appeals. Missouri.

July 8, 1924.

On Rehearing December 31, 1924.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by Mrs. J. W. Ford against the Wabash Railway Company, the St. Louis Transfer Company, and others. Judgment for plaintiff against second-named defendant, and it appeals. Reversed, and cause certified to Supreme Court.

Guy A. Thompson and Marvin E. Boisseau, both of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards and Anderson, Gilbert & Wolfort, all of St. Louis, for respondent.

DAVIS, C.

This is an action for negligence for damage to baggage, the petition comprising two counts. The jury awarded plaintiff a verdict against defendant St. Louis Transfer Company for $1,200, and $280.20 interest, aggregating $1,480.20 on the first count, and for $156 and interest, $36.42, aggregating $192.42, on the second count, and from the judgments entered thereon the defendant St. Louis Transfer Company appealed.

The cause went to trial against all the defendants, but, as the court below instructed the jury to find in favor of all the defendants except the St. Louis Transfer Company, and as plaintiff failed to appeal from the judgment against her as to those defendants, we only consider the evidence as relating to the St. Louis Transfer Company, herein called defendant.

Plaintiff's evidence tends to show that she and her husband resided at 5933 Clemens avenue, in the city of St. Louis, in 1918. In the summer of 1918 plaintiff and her husband went to Mackinaw Island during the summer vacation, and on August 23, 1918, left Chicago for St. Louis, checking the baggage, in good condition, over the Wabash Railway Company, arriving in St. Louis on the morning of August 24, 1918; that her husband, about 9 a. m., on said August 24th, gave the checks to defendant, and two pieces of baggage were delivered to the house the same evening, and two the morning of August 25th by defendant. The contents of the trunks, when received by plaintiff, were wet and damaged to the amount of $1,448.38. Her husband assigned his claim to plaintiff, and his clothing was damaged in the sum of $195. Defendant was engaged in the business of transferring and hauling baggage from and to homes and the Union Station.

Defendant's evidence tends to show that between 11:20 a. m. and 12:20 p. m., on the morning of August 24, 1918, 3.6 inches of rain fell in the Camp Springs sewer district, in which the Union Station is located, at which place the baggage became soaked with water. The Union Station is situated between Eighteenth and Twentieth streets, bounded by Market street on the north. The gauge for measuring the rainfall in the Camp Springs district is located at 613 North Garrison avenue. That was the largest record of rainfall had for an hour's period at any rain gauge in the city of St. Louis. Before the baggage became wet, defendant had received the baggage from the Terminal Railroad Station, placing it on the usual and customary platform, where defendant stored its baggage, waiting for the truckman to get it to deliver it, which platform is on a level with the rails or tracks under the Union Station train sheds.

Witness Satchwell, for defendant, testified in substance that he began working at the Union Station shortly after it was built, and had been working there ever since. On the morning of August 24th, he was in the office, which was next to the platform. It began raining around noontime and continued to rain for probably an hour. Before he knew it, the water was coming in the office and on the platform, and it was about 4 inches deep where he was sitting. It came very suddenly, right in under the walls and on the floor. It came all at once, and prior to that time there was no water there at all. It got about 14 inches deep on the platform. There were a number of trunks piled on the end of the platform. Trunks were never put on top of each other, but they were piled on ends to load them on the wagon. From the time the water first ran over the platform, it was about 14 or 15 minutes until it became 14 inches deep. The platform is a little over 3 feet above the level of Twentieth street. The water came from the north. Market street bounds Union Station on the north, and the water poured in from Market street through the saloon, bank, pool room, drug store, barber shop, and the doorway where the taxicabs are stationed. He never saw this happen at the Union Station before, and he has worked there since shortly after it was built. Never before did water come on the platform of the St. Louis Transfer Company. He was there in 1911, 1912, 1913, and 1916 during other heavy rainstorms, but never saw the water on this platform before. He had seen water in Twentieth street about 2½ feet high, or 6 inches lower than the platform, but never as high as the platform. During the early part of the rain, the trunks were moved from the west side of our platform along Twentieth street about 20 feet back to the east side. If the trunks had been put on trucks more than 15 inches in height, they would not have gotten wet. When he stood in the water, it came almost up to his knees, striking him just below the knees. The trunks were not put on trucks, as they did not have any, and do not use them in handling baggage. The first he knew of the water was when it came pouring over the platform. He was not thinking of rain, as he never saw this happen in the 18 years he had worked there. Four or five employees were around the office and platform at that time. After the platform had become flooded, trucks were borrowed and the baggage put on them. There was not time to obtain trucks or put baggage on them after the rain came. The baggage was not moved because a flood was anticipated, but because he did not want the rain to go through the cracks of the west wall and' wet the baggage. They did not anticipate, and were not warned, that any water was coming in from the north through the Union Station. They did not know that this cloud-burst was coming. When the water came rushing in, they did their best to borrow trucks from the Terminal, but the Terminal was using all their trucks. They finally procured three or four, but that was after the damage to some of the baggage. They did not open any of the trunks to let them dry, nor did they call up the owners and tell them to come and get the trunks. They delivered the trunks as promptly as could be done.

Witness Judy, for the Terminal Railway Association, testified, in substance: He was in the baggage room on August 24, 1918, and about 11:30 a. m., just before the noon hour, a cloud-burst occurred. He would hardly call it a rainstorm, because it was too violent. He assisted the men on the platform of defendant in picking up the baggage, but some of the trunks became water-soaked, but they were picked up. The water came so fast that we did not have a chance to pick all up. The defendant's men were not in a position to see the water coming. When he started down there, the transfer company wanted some of the Terminal trucks, but he would not let them have any. He thought he needed them all for the Terminal's baggage. The defendant was not able to get any trucks at that time. When the Terminal's baggage was placed on trucks, he had two or three extra ones and loaned them to defendant. These were the trucks upon which they placed the trunks, but not until after some of the trunks had been water-soaked. Although the water was coming down like the Niagara Falls, he refused to let them have any more trucks. The trucks were 250 or 300 feet away

Witness O'Toole, for the Terminal Railway Association, testified:

"I made a memorandum of three or four heavy rainfalls. There was a rainfall June 16, 1912; that is, rain that resulted in flooding the subway (this subway was 20 feet below defendant's platform). On July 16, 1912, at 3 p. m., July 14, 1912, 3 a. m., July 1, 1913, 11:30 a. m.—those are the three prior to this one that would be termed floods; flooded the subway and did any damage of any consequence. While on July 14, 1912, and July 1, 1913, the sewer burst and caused some water to come up in there, he never saw it flow on the platform in that particular locality where this damage is claimed to have occurred. The baggage room proper is located at the northwest corner of the train shed. The space south of the baggage room, about 30 feet wide, and about 60 feet long, is assigned to defendant to segregate their baggage for delivery in the city. Witness had been employed at the Union Station from the time it was built, and had never seen water, as a result of rain or any other cause, come onto the platform where defendant keeps its baggage and kept it on that day. It might have come in through a broken window light, but never by reason of a flood."

Plaintiff's evidence in rebuttal tended to show that witness Gross is connected with the United States Weather Department, which keeps records of the rainfall. On July 4, 1912, the record at the Weather Bureau shows that 2.97 inches of rain fell in 1 hour and 1 minute; on June 5, 1912, 1.34 inches fell in 1 hour and 5 minutes; on July 23, 1917, 1.28 inches fell in 25 minutes; on August 24, 1918, at 11:24 a. m., rain began to fall, and 1.68 inches fell in 1 hour. The station is located in the Railway Exchange Building at Seventh and Olive streets. The records do not show what amount of rain fell at any other point. There may be a very heavy rainfall at one spot, and very little 100 or 200 yards away. The location of the Weather Bureau gauge is not within the drainage district that would carry surface water to the vicinity of the Union Station.

Such other facts as we have omitted, if any, will later appear.

I. Defendant contends that the trial court erred in refusing to give its instructions to the jury directing a verdict. The...