Fritz v. Manufacturers Ry. Co.

• Decision Date: 07 February 1939
• Docket Number: No. 24835.,24835.
• Citation: 124 S.W.2d 603
• Parties: FRITZ v. MANUFACTURERS RY. CO.
• Court: Missouri Court of Appeals

124 S.W.2d 603

FRITZ v. MANUFACTURERS RY. CO.

No. 24835.

St. Louis Court of Appeals. Missouri.

February 7, 1939.

Appeal from St. Louis Circuit Court; Michael J. Scott, Judge.

"Not to be published in State Reports."

Action by Joseph Phillip Fritz, Jr., against the Manufacturers Railway Company, for injuries sustained by plaintiff in a collision between an automobile truck in which he was riding and a locomotive being operated on defendant's railway. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Nagel, Kirby, Orrick & Shepley and Dwight D. Ingamells, all of St. Louis, for appellant.

A. J. Appelbaum and Roby Albin, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between a motor truck in which he was riding and a locomotive being operated on defendant's railway. The collision occurred at the intersection of Seventh and Dorcas Streets, in the City of St. Louis, about 4:30 in the afternoon on August 19, 1936.

Seventh Street runs north and south, and is about forty-five to fifty feet wide. Dorcas Street runs east and west, and is about thirty-five to forty feet wide.

Defendant owns and maintains a railway track in the middle of Dorcas Street running through the intersection and also another track called a spur track connecting with the Dorcas Street track east of the intersection and running thence southwesterly through the intersection some distance to and beyond Pestalozzi Street.

There was at the time of the accident a railway crossing signal at the northwest corner of the intersection maintained and operated by defendant. It consisted of a vertical light spelling the word "stop," a flasher light on each side of the vertical light, an amber light, and a bell above the lights. The purpose of the signal was to give warning to southbound traffic on Seventh Street of locomotives or trains approaching the intersection on either of the tracks. When the electrical mechanism was not out of order and was functioning properly, the vertical light spelling the word "stop" showed red, the flasher lights showed red and flashed, and the bell sounded, upon the approach of a locomotive or train on either of the tracks. When no train was approaching an amber light showed, indicating the intersection was clear for southbound traffic.

There was a like signal at the southeast corner of the intersection to give warning to northbound traffic.

Plaintiff at the time of the collision was riding in a Ford truck owned and driven by William Frank. Plaintiff was in Frank's employ. The truck was proceeding south on Seventh Street. Plaintiff's testimony shows that as the truck approached the intersection from the north the red signal lights at the northeast corner of the intersection did not show and the bell did not sound, with the result that the truck proceeded across the intersection and was struck by a locomotive traveling northeast on the spur track, and plaintiff thereby sustained the injuries for which he sues.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $2,000, and judgment was given accordingly. Defendant appeals.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence. Defendant puts this assignment on the ground that the testimony of plaintiff and his witnesses that the signal lights and bell were not in operation as the truck approached the intersection is opposed to physical law.

With respect to this issue plaintiff testified as follows:

"At the northwest corner of Dorcas and Seventh there is a signal supposed to show the word `stop.' There is a bell there and a post and on that post are red lights that flash the word `stop.' I passed there four and five and sometimes a dozen times a day. When there is a train on those tracks there is a bell and the signal lights show `stop'; otherwise there is an amber light which flashes. When the bell doesn't ring and the red lights don't flash, it means go ahead.

"Mr. Frank and I came up Lynch Street to Seventh in Mr. Frank's Ford truck. When we got near Dorcas Street Mr. Frank slowed down a little. I saw the flashes were not flashing or the bell ringing, and with that we went on.

"There is a signal at the southeast corner of Seventh and Dorcas. We didn't have anything to do with that signal because we were going south. I didn't hear the bell on that signal ring. I didn't hear anything.

"When we got to where the track goes east and west on Dorcas Street a big truck traveling in front of us was cutting back toward the west curb of Seventh Street. We kept on going and so did the truck. After the collision Mr. Hegemeier helped me out of the truck. We got into Mr. Hegemeier's car. We drove north, and when we got to the north side of the railroad tracks Mr. Hegemeier stopped the car north of the signal on the northwest corner and there was no bell ringing or light shining. The train was on the spur track close to the center of the street. I looked at the signal and listened. I heard nothing. No lights were lit in the signal."

Henrietta Meyer testified, for plaintiff, as follows: "On August 19, 1936, I was living on Seventh Street about three doors north of Dorcas Street on the west side of the street. There is a crossing signal at the northwest corner of the intersection of Seventh and Dorcas Streets. I didn't see the accident. When I came out from our house right after the accident the bell wasn't ringing and the lights weren't on. I was about thirty or thirty-five feet north of the signal. I don't think the amber light was working. I know the red lights weren't and the bell wasn't either. It hadn't rung for a couple of days. That signal hadn't worked for a month. One time it would have one initial and then another. One night it rang all night long. Right after the accident a man in overalls came down with a ladder and he fixed the signal, and then right after that the whole bunch came up and fixed it, and then it worked."

Charles Figge testified, for plaintiff, as follows: "We live about fifty feet from the railroad crossing signal right by our house. We saw lots of people around where the accident was. I looked at the signal and the lights were not showing and the bell was not ringing. The day after the accident I watched men working there. It looked like they were putting new wires in the joints. I watched them from my yard alongside the track about two hundred feet up from Seventh Street. Before the accident the signal was out of commission, maybe a month or longer. The amber lights flashed on and off and the red lights didn't work at all. The bell rang sometimes and sometimes didn't. Sometimes it was so faint you could hardly hear it."

William Frank testified, for plaintiff, as follows: "We drove south on Seventh Street. A big stake truck and two or three more trucks were ahead of me. I looked to the lights. There were no lights flashing and no bell ringing, and the trucks kept going. I had to slow down on account of the big stake truck. I saw everything was clear, and I followed along. When we got to the spur track the locomotive hit us. After the accident I saw the signal on the northwest corner wasn't working. The locomotive was backed up over the sidewalk to leave the traffic go by. The lights were not flashing and the bell was not ringing then."

Le Roy Meyer testified, for plaintiff, as follows: "On August 19, 1936, I lived at 2839 South Seventh. That is thirty-one or thirty-two feet from the corner of Seventh and Dorcas Streets. About 4:15 or 4:30 I was sitting out on the front steps looking up the street. I saw the accident. I took one of the brakies over to the lights and showed him they weren't working. As the engine was approaching the point of collision at about six or eight miles an hour, just dropping off the curb line, Mr. Frank's truck slowed down to eight or ten miles an hour and then picked up a couple of miles an hour. The signal at the northwest corner was not working. The bells or lights neither one was working. The only one working was the amber light. The red `stop' light was out completely for two days before."

Anna Hegemeier...