Gerhard v. Terminal R. Ass'n of St. Louis

• Decision Date: 11 March 1957
• Docket Number: No. 44915,44915
• Parties: George R. GERHARD, Administrator of the Estate of Edwin J. Kastner, Deceased (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation (Defendant), Appellant.
• Court: Missouri Supreme Court

Page 866

299 S.W.2d 866

George R. GERHARD, Administrator of the Estate of Edwin J Kastner, Deceased (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation (Defendant), Appellant.

No. 44915.

Supreme Court of Missouri, En Banc.

March 11, 1957.

Warner Fuller, Arnot L. Sheppard, John P. Montrey, St. Louis, for appellant.

William S. Bahn, St. Louis, for respondent.

HOLMAN, Commissioner.

On the early morning of December 27, 1953, Edwin J. Kastner was killed when his automobile struck a curbing on the north side of Eads Bridge, veered to the opposite side and crashed through a railing on the bridge, thence falling to the ground. The deceased, a bachelor, was survived by his father and a brother. This suit was instituted by his administrator who alleged that the father, 78 years old, was deprived of financial support by reason of Edwin Kastner's death. The trial resulted in a verdict for plaintiff in the sum of $10,000. Defendant has duly appealed.

Eads Bridge spans the Mississippi River between East St. Louis, Illinois, and St. Louis, Missouri. It is owned and operated by the defendant as a toll bridge. It runs generally in an east-west direction and has two decks, the lower one for railroad trains and the upper deck for automobiles and other vehicular and pedestrian traffic. We are here mainly concerned with the automobile deck, particularly that portion thereof, and approaches thereto, located on the Illinois side of the river.

The accident occurred at about 5 a. m. as decedent was driving west from East St. Louis toward St. Louis where he resided. The eastern end of the bridge consists of two highway ramps between which there is a railroad track dividing east and westbound traffic. Each ramp is approximately 20 feet wide and 1,000 feet long. When the ramps reach the level of the vehicular deck they are merged into one four-lane roadway 40 feet wide without any divider. To accomplish this the outer curb of each ramp makes a fairly sharp curve in toward the vehicular deck so that westbound traffic at this point must turn somewhat to the left or south, and eastbound cars, leaving the bridge, must turn to the right (also south).

At the beginning of the westbound approach was a sign, 'Slippery When Wet.' About halfway up there appeared another sign reading, 'Slow-Curve,' with a 'sloping arrow curved on it.' At the west end or top of the ramp the cruved curb was from 12 to 58 inches high and was painted in alternating black and yellow stripes. Immediately behind this curb was a sign reading 'Slow,' the letters having glass reflector buttons on them. All of these signs had been painted about seven months before this occurrence. Also, a 'city street light' was located just beyond this curb and very near the reflectorized slow sign.

About ten days before this casualty a vehicle had apparently run into the south concrete fence at a place beginning about 30 feet west of the point where the ramps converged and knocked out 18 feet of the fence. This opening was barricaded with a wooden fence made of 2 X 4's which was wired to the concrete fence at each end. Work had been started on replacing the permanent fence but had not progressed very far at the time plaintiff's decedent was killed. The evidence indicated that the cold weather was somewhat responsible for this delay.

On the morning in question it was dark, cloudy, and there was a mist, but the ground was said to be dry and visibility good. Decedent drove his automobile onto the westbound approach, being followed by two other cars, a cab about 150 feet behind him and an automobile occupied by a Mr. and Mrs. Kreider a short distance back of the cab. The taxi driver testified that the Kastner car was being driven from 45 to 50 m. p. h., at least, but the Kreiders estimated the speed at 25 m. p. h. Decedent had the car lights on and traveled a normal course with no weaving noted. When he reached the top of the ramp the witnesses saw sparks thrown off the right side of his car which indicated that the car wheels were scraping the curbing. The cab driver observed that this caused decedent's car to 'flip' around to the left and head for the south side of the bridge. When he arrived at this point the Kastner car was not in sight so he jumped out of the cab and looked down through the opening in the bridge railing and saw the car on the ground below. He immediately radioed for an ambulance and wrecker. The Kreiders also reported the accident to the toll collector on the Missouri side of the bridge. Kastner was pronounced dead upon arrival at the hospital. The automobile had landed on dry ground some 100 feet or more east of the east shore of the river.

A witness who examined the area testified that he found marks where the automobile had evidently scraped against the curbing, and one black skid mark where it had traveled across the roadway and struck the south railing. In addition to striking the wooden barrier, the car appeared to have hit the concrete fence at the west end of the first opening as another 18 feet of the regular fence was knocked out. The regular concrete railing or fence consisted of posts, eight inches square, located about eight feet apart with top and bottom concrete rails running between each post with about seven 'down members' running from the top to the bottom rail between each post. All of this concrete construction contained metal reinforcing rods. It was also shown that decedent had driven 'both ways' across this bridge may times before this occasion.

In determining the issues presented on this appeal, our first task is to decide whether the substantive law of Illinois or of Missouri is applicable. As a usual rule the jurisdiction of a state does not extend beyond its boundaries and hence, where a river forms the boundary between two states, each would have jurisdiction only to the middle of the main channel. Since the entire occurrence heretofore detailed transpired within the territory of the State of Illinois, it would ordinarily be assumed that the law of that state would govern. To the contrary, however, plaintiff asserts that the substantive law of Missouri controls since Congress has granted concurrent jurisdiction to each of these states 'on the river Mississippi.'

The Enabling Act of March 6, 1820, after providing that the eastern boundary of Missouri would be the middle of the main channel of the Mississippi River, states, 'and provided also, That the said State shall have concurrent jurisdiction on the river Mississippi, and every other river bordering on the said State, so far as the said rivers shall form a common boundary to the said State and any other State or States, now or hereafter to be formed and bounded by the same--such rivers to be common to both * * *.' Chap. 22, 3 U.S.Stat. 545, 1 RSMo 1949, p. 36, 1 V.A.M.S. pp. 63, 64. A somewhat similar provision was contained in the Illinois Enabling Act of April 18, 1818. S.H.A. p. 107, 3 U.S.Stat. 428. The question is therefore presented as to whether the instant casualty occurred 'on the river Mississippi' within the intent of Congress as expressed in the aforesaid Acts. If this question is answered in the affirmative, then the courts of Missouri must apply the law of this state in the same manner as such would have been applied had the event in question occurred within the actual territorial limits of this state.

We have concluded that this unfortunate accident did not occur 'on the river Mississippi' and it therefore follows that the substantive law of Illinois must be held to be determinative herein. Speaking very generally, it has been said that the term 'concurrent jurisdiction' in this situation 'refers to the effect of the law of each state within the domain of the other covered by water divided by the boundary line between the two states, as regards persons or things on the water concerned or connected in some way with the use thereof for purposes of navigation, and that it has no reference to the land under the water or things of a permanent nature in or over the water. In respect to such matters and rights incident thereto, the jurisdiction of each state on its side of the boundary line is exclusive. Within this rule, 'concurrent' jurisdiction does not empower one state to regulate the individual enjoyment, by people of another state within its boundaries, of property held in trust by such other state for the people within its limits, such as public water and the fish and game that inhabit the same. Neither does such jurisdiction extend to permanent structures attached to the eiver bed and within the boundary of one or the other state.' 49 Am.Jur., States, Territories, and Dependencies, Section 24, p. 245.

There can be no question but that each state has jurisdiction of actions to enforce tort claims and to prosecute certain criminal actions arising from any transaction or incident that may occur anywhere on the water of this river. State v. Kurtz, 317 Mo. 380, 295 S.W. 747; Sanders v. St. Louis & N. O. Anchor Line, 97 Mo. 26, 10 S.W. 595, 3 L.R.A. 390; State v. Metcalf, 65 Mo.App. 681. However, in Wedding v. Meyler, 192 U.S. 573, 24 S.Ct. 322, 325, 48 L.Ed. 570, 66 L.R.A. 833, the Supreme Court of the United States, in discussing a similar provision, stated: 'To avoid misunderstanding it may be well to add that the concurrent jurisdiction given is jurisdiction 'on' the river, and does not extend to permanent structures attached to the river bed and within the boundary of one or the other state.' The same court has also held that a provision for concurrent jurisdiction did not extend to the bed of a stream or to the removal of a nuisance consisting of nets anchored to the bottom of the river, beyond the boundary of the state in question. McGowan v. Columbia River Packers' Ass'n, 245 U.S. 352, 38 S.Ct. 129, 62 L.Ed. 342. See also Roberts v. Fullerton, 117 Wis. 222, 93 N.W. 1111, 65 L.R.A. 953; State v. City of Hudson, 231...