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

• Decision Date: 16 September 1947
• Docket Number: No. 27266.,27266.
• Citation: 204 S.W.2d 598
• Parties: GILLESPIE v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

204 S.W.2d 598

GILLESPIE v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 27266.

St. Louis Court of Appeals. Missouri.

September 16, 1947.

Rehearing Denied October 17, 1947.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be Published in State Reports".

Personal injury action by Elsie C. Gillespie against Terminal Railroad Association of St. Louis. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Warner Fuller and Arnot L. Sheppard, both of St. Louis, for appellant.

Orville Richardson, of St. Louis, for respondent.

HUGHES, Judge.

This is an action by respondent to recover damages on account of personal injuries sustained on July 10, 1945, at the east entrance to Union Station, St. Louis, Missouri. Respondent, intending to board a train as a passenger, was entering Union Station through a doorway at the east entrance from 18th Street at about 7:45 o'clock in the morning. There are three pairs of doors at this entrance, all of which open outwardly for entrance into a vestibule and on the opposite side of the vestibule are three inside pairs of doors which enter the midway of the station proper. The entrance doors are beneath a massive stone porch covering the sidewalk. The sidewalk is 11 feet 9 inches wide, and the porch is supported at the outer edge of the sidewalk with three pillars, the south pillar is 7 feet 9 inches wide, the middle pillar is a little less in width, and the north pillar is 5 feet 9 inches wide, and the openings between the pillars are in the form of archways. The vestibule is approximately 8½ feet across from the outside doors to the inside doors and 42 feet wide. Respondent passed through the right-hand doorway of the southernmost pair of the three sets of doors. Inside this doorway, and about 25 inches from the face of the door when closed, is a step-down with a 6-inch riser. At the ceiling in the vestibule and about 8½ feet above the floor are three sets of fluorescent lights consisting of 12 tubes in double lines. Each of these tubes is 5 feet 9 inches long, and above each line of tubes is a reflector 10 inches wide. Respondent's evidence was to the effect that at the time of her injuries these lights were not on, and although her eyesight was good, and she was looking where she walked, she was unable to and did not see the step; that she overstepped the step, causing her to fall and receive the injuries for which she sues. The petition pleads several grounds of negligence but respondent submitted her case solely upon defendant's negligence in violating Section 5174, R.S.Mo. 1939, Mo.R.S.A., the allegation being, that "Defendant negligently failed to keep the depot vestibule and step lighted in violation of R.S.Mo. 1939, Section 5174" That section, so far as applicable here, is as follows:

"Every railroad corporation in this state which now is or may hereafter be engaged in the transportation of passengers or property shall * * * at all crossings and intersections of other railroads, where such other railroad and the railroad crossing the same are now or may hereafter be made upon the same grade, and the character of the land at such crossing or intersection will admit of the same, erect, build and maintain, either jointly with the railroad company whose road is crossed, or separately by each railroad company, a depot or passenger house and waiting room or rooms sufficient to comfortably accommodate all passengers awaiting the arrival and departure of trains at such junctions or railroad crossings, and shall keep such depot or passenger house warmed, lighted and open to the ingress and egress of all passengers a reasonable time before the arrival and until after the departure of all trains carrying passengers on said railroad or railroads; and they are hereby required to stop all trains carrying passengers, at the junction or intersection of other railroads, a sufficient length of time to allow the transfer of passengers, personal baggage, mails and express freight from the trains of railroads so connecting or intersecting; * * *. Every railroad corporation or company which shall fail, neglect or refuse to comply with any or either one of the provisions of this section from and after the first day of July, 1885, shall, for each day said corporation or railroad, refuses, neglects or fails to comply therewith after said day, forfeit and pay a sum of twenty-five dollars, which may be recovered in the name of the state of Missouri to the use of the school fund of the county wherein said crossing is situate; and it shall be the duty of the prosecuting attorney to prosecute for and recover the same: * * *."

After trial to a jury a verdict was rendered for respondent and against appellant in the sum of $3500, and after the overruling of appellant's motion for a new trial, appeal was perfected from the judgment rendered on the jury's verdict.

Appellant's first contention is that Section 5174 is a penal statute, which must be strictly construed, and that respondent does not come within its terms, and therefore the submission of her case, based exclusively on the statute, cannot be approved. Respondent attempts to meet this contention by asserting that the statute is in part penal and in part remedial. There is no basis for such claim. No remedy to an individual is given, and the penalty can only be sued for by the prosecuting attorney for the use of the school fund. The cases respondent cites, i. e., Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, and Lynch v. Missouri, Kansas & Texas R. Co., 333 Mo. 89, 61 S. W.2d 918, are no authority whatever for the claim that this statute is in part remedial. Each of those cases had under consideration a statute which, although penal, expressly gave a right of recovery for a violation thereof to certain individuals. This statute has no such provision. However, notwithstanding this is a penal statute, that does not mean that its violation cannot be relied upon to prove negligence. This respondent did not seek to recover the penalty for a violation of the statute. She brought a common-law action against the defendant alleging six grounds of negligence, one of the six grounds being that the defendant negligently failed to keep the depot vestibule and step lighted in violation of R.S.Mo. 1939, Section 5174, Mo. R.S.A. "It is thoroughly settled law that an injured party may sue at common law for negligence, and therein set up and prove a violation of a statute or ordinance as constituting a negligent act on defendant's part." This is settled law. Lenz v. Seibert, Mo.App., 259 S.W. 829, 831; Robinson v. Ross, Mo.App., 47 S.W.2d 122.

Appellant's next contention is that the statute is inapplicable to the facts in this case because appellant is not operating a railroad which "crosses" another railroad, but is operating a union station which is commonly used by all railroads which carry passengers in and out of St. Louis. A complete answer to this point is that the statute by its terms applies not only to all crossings of other railroads but also to all intersections or junctions with other railroads. It was admitted during the trial of the case that appellant owns and operates Union Station, and that Union Station is a facility that is operated for the benefit of all the railroads which have passenger trains running in and out of St. Louis, including the Missouri, Kansas & Texas Railroad Company and the New York Central Railroad; that the trains are brought in and out of Union Station over the tracks of the Terminal and over their own tracks and some of those passenger trains are brought in and out of Union Station by Terminal motive power, and some by the railroad line's own motive power. The answer admits that appellant is a railroad corporation. We think it would be a strained construction of Section 5174 to say that its sole purpose was to apply to only two railroads which cross or intersect the one with the other in rural districts, and not apply to great cities where many railroads cross and intersect, and a depot is maintained for the joint use of all of the railroads. Neither can it be said that the statute may be invoked only by a passenger who desires to transfer from a train of one road to a train of another at the point where the two roads cross or intersect. The case of Logan v. Hannibal & St. Joseph Railroad Co., 77 Mo. 663, and the case of State, to Use of School Fund of Gentry County v. Wabash, St. Louis & Pacific Ry. Co., 83 Mo. 144, were both written before material amendments were made to Section 5174, but neither case will support appellant's position. In the Logan case the plaintiff's complaint was that the company refused to stop a train that was not scheduled to stop at the junction of another railroad, and plaintiff was not intending to transfer to such other railroad. The effect of the holding was that for two reasons plaintiff was not entitled to recover, first, because he did not intend to transfer to the other railroad, and second, that a railroad may make reasonable regulations as to the mode of its performance of duties as a carrier of passengers, and "Therefore a passenger who purchased a ticket to a station at which local trains stopped, but through trains did not, was not entitled to enter the first train due after he purchased his ticket, and demand of the...