Freie v. St. Louis & S. F. Ry. Co.

• Decision Date: 02 May 1922
• Docket Number: No. 16199.,16199.
• Citation: 241 S.W. 671
• Court: Missouri Court of Appeals
• Parties: FREIE v. ST. LOUIS & S. F. RY. CO.

241 S.W. 671

FREIE v. ST. LOUIS & S. F. RY. CO.

No. 16199.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Rehearing Denied June 6, 1922.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by Henry F. Freie, as administrator of the estate of Hermann Freie, deceased, against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

W. F. Evans and Edw. T. Miller, both of St. Louis, and James Booth, of Pacific, for appellant.

Jesse H. Schaper, of Washington, Mo., and Leonard, Sibley & McRoberts, of St. Louis, for respondent.

DAUBS, J.

This is an action for damages for the alleged negligent killing of Hermann Freie on March 28, 1917, by defendant in the operation of its railroad. Plaintiff sues as the administrator of the estate of Hermann Freie, deceased. The suit was for $10,000. The cause was tried to a jury and resulted in a verdict and judgment for $2,000 for plaintiff. Defendant appeals.

The petition alleges that defendant negligently permitted a pile of ties and timbers and a number of box cars and buildings to completely obstruct the view of the persons approaching defendant's railroad tracks at a point where Jefferson avenue, a public road, crossed the tracks in the village of Catawissa, Franklin county, where the accident occurred; that as deceased approached the crossing in an automobile defendant's servants negligently operated the train behind said obstructions at a high rate of speed, without ringing a bell when the engine was not closer than 80 rods from the crossing, and without keeping the bell ringing until the engine had crossed the road, and the same allegation as to failure to sound a whistle, all as required by statute.

The Petition further alleges that, notwithstanding defendant permitted and maintained the obstructions along the crossing at a point where there was a sharp curve in the railroad tracks, defendant negligently and carelessly ran the train through said town and thickly populated district and over the public crossing at a high and dangerous rate of speed without sounding a warning. And, finally, the petition relies on the humanitarian rule.

The answer is a general denial and a plea of contributory negligence, charging that deceased did not exercise ordinary care to stop, look, and listen for the approaching train, which he could have seen and heard in ample time to have avoided the injury.

The reply is a general denial.

The record discloses a gruesome grade crossing accident. The deceased and his wife, Elizabeth, were killed while crossing the railroad tracks in an automobile in the village of Catawissa, in Franklin county. They had been visiting their son, the plaintiff, what that time conducted a dramshop there. The deceased had lived in that immediate neighborhood for a great many years, and came to the village once or oftner each month and was entirely familiar with the crossing, the schedule time of this train, and knew the exact situation and location of the obstructions at this crossing. 32 this there is no doubt.

The wagon road, called Jefferson avenue, runs north and south. The railroad tracks are laid east and west, with a curve extending about a half mile toward the north on the east of Jefferson avenue. There are three sets of tracks, proceeding from the south, being: First, the house track; second, the passing track; third, the main track. The train came from the east on the main or north track. Plaintiff's saloon, from which deceased had driven immediately before the accident, is south of the tracks on the east side of Jefferson avenue. From the center of the main track to plaintiff's saloon is 117 feet. There was an elevator on the right of way south of the main track and east of the avenue about 213 feet from the center crossing. On this day there were railroad cars standing east of Jefferson avenue, one standing immediately east of the road about 10 feet from the crossing plank, the end of the crossing planks extending over the Jefferson avenue right of way about 13 feet of the length of the car. It was a coal car, about 8 feet high. Another car stood further east about 50 feet from the first car, all on the south or house track. The depot is about 71 feet east of the crossing, and east of the depot is a stationary box car called a freight-house. These are on the north side of the main track. The freighthouse box car is about 180 feet from the crossing. There is an elevation in the road from the saloon to the main track of about 41A feet. Such is a description of the location, as testified to by plaintiff's witness Scheve, which appears to be most favorable to plaintiff. This witness further locates the tracks as follows: The main track furnest north is 9 feet from the next or passing track; the house track or the one furthest south is 18 feet from the main track, and 9 feet from the passing or middle `track, nese distances are reckoned between the outer rails. Jefferson avenue is 50 feet wide, is a public highway, and has been so used for more than 25 years. It is much traveled. The buildings along the tracks have been so located for many years.

South of the house track there were railroad ties on the right of way of the railroad on both sides of the road, the piles being 8 feet high. It does not appear how close to the rails of the house track the ties were piled. At any rate, there was an empty car standing on the house track. It appears that when one passed the house track to the north he could see east to the freight depot, 180 feet away. The main and middle tracks were both clear. There are statements by witnesses for plaintiff that they could not see more than 40 or 50 feet up the main track. This, however, we find is clearly opposed to the physical facts. Allowing a projection of 2 feet beyond the rails north by the standing car, it was 19% feet distant from the south rail of the main track to this point of projection. It was shown by defendant's witness Edward Burt, the station agent, that there is 8 feet between the passing track and the house track; 9 feet between the house track and the main track; and 4% feet between the rails of the passing track—a clear distance of 21% feet between the house track and the main track.

There is a curve in the railroad track at and near this crossing, described as a "sweeping curve," covering about a half mile. From the crossing at the house track, the middle and main track being clear, one could see the main track towards the east as far as the freight depot, which concededly is about 180 feet distant, and which is located next to the main track on the north side of same.

This is the most favorable view that can be taken in behalf of plaintiff from the evidence and from the exhibits and photographs brought before us by stipulation of the parties.

The train was a regular train, known as "The Meteor." The schedule time at this point was 3:18 p. m., and the train was about 12 minutes late on this occasion.

Plaintiff's witness Bernard Scheve testified that he was and had been a merchant in Catawissa for 17 years, that this crossing had been used by the public generally for 25 years or longer, and that he had known Hermann Freie and his wife for 17 years or more, and on cross-examination said that Freie during these years came to Catawissa very often, in the winter time almost every week, and that—

"The train I have referred to in my evidence was No. 9, and it had been a regular run on the Frisco Railroad for a number of years. I will say that that train has been running there fully 10 years. It was scheduled to reach Catawissa about 3:20. I don't know the exact time. It was about on time on this afternoon. When I was a witness before the coroner's inquest I testified that Mr. and Mrs. Freie were familiar with the crossing and knew what time the train gets through Catawissa; yes, sir; they were familiar with that. My testimony before the coroner was true."

It is unnecessary to further reproduce testimony of plaintiff's own witnesses tending to show that deceased Hermann Freie was familiar with the exact location of the...