Gorman v. St. Louis Merchants' Bridge Terminal Ry. Co.

• Decision Date: 03 June 1930
• Docket Number: 128832
• Parties: Elmer Joseph Gorman v. St. Louis Merchants Bridge Terminal Railway Company, Appellant
• Court: Missouri Supreme Court

28 S.W.2d 1023

325 Mo. 326

Elmer Joseph Gorman v. St. Louis Merchants Bridge Terminal Railway Company, Appellant

No. 128832

Supreme Court of Missouri

June 3, 1930

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

J L. Howell and Roy W. Rucker for appellant.

(1) The demurrer to the evidence should have been sustained. Taking the undisputed distance disclosed by the record and plaintiff's own statement as to where he stopped his car the conclusion is irresistible that the train in question was in sight and the noise thereof could have been heard at the time plaintiff brought his car to a complete stop. His statement that he looked and did not see, when there were no obstructions and the view was clear, and that he listened and did not hear, when the train was within twenty-five feet of the crossing traveling at fifteen miles an hour, is so incredible that contributory negligence should be declared as a matter of law. New York Tel. Co. v. Becker, 30 F.2d 579; T. St. L. & W. Ry. Co. v. Gallagher, 109 Mo.App. 67; C. P. & St. L. Ry. Co. v. DeFreitas, 109 Mo.App. 104; C. & A. Railroad Co. v. Vremeister, 112 Mo.App. 346; C. R. I. & P. Ry. Co. v. Jones, 135 Mo.App. 380; Livingston W. & E. Co. v. Railroad Co., 170 Mo.App. 244; Kennedy v. A. G. & St. L. T. Co., 180 Mo.App. 146; De Bow v. Ry. Co., 245 Mo.App. 158; Hickey v. Railroad, 8 F.2d 130. (2) A driver of an automobile is not relieved from the duty of exercising due care in approaching a railroad crossing because of a presumption that a flagman would give a signal when a train was approaching, nor would he be justified in closing his eyes and stopping his ears on a presumption that a bell would be rung or a whistle sounded. A driver has no right to presume that others may not be guilty of negligence and offer the assumption as an excuse for his failure to exercise due care. Jaroszewski v. Railroad, 241 Ill.App. 1; Specht v. Railroad, 233 Ill.App. 384; Railroad v. Burnett, 181 F. 799; Schlauder v. Railroad, 235 Ill. 154; Goodman v. Railroad, 248 Ill.App. 128. (3) The jury should have been instructed that the violation of the various ordinances pleaded by the defendant company did not constitute negligence. The ordinances were invalid and the testimony offered by plaintiff to sustain such charges of negligence should have been stricken from the record. City of Witt v. Railroad, 324 Ill. 494; Northern Trust Co. v. Railroad, 318 Ill. 402; Village of Atwood v. Railroad, 316 Ill. 425. (4) If the plaintiff has a cause of action it arose in Illinois. The question of defendant's liability must, therefore, be determined by the law of Illinois. Woodward v. Bush, 220 S.W. 839; Root v. Railroad, 195 Mo. 348. (5) Under the law of Illinois, it is necessary to allege and prove that the person injured was at the time of his injury and immediately prior thereto in the exercise of due care. Therefore, Instruction 6, given by the court of its own motion, was erroneous. Donelson v. Ry. Co., 235 Ill. 625; Wabash Railroad Co. v. Kamradt, 109 Mo.App. 203; C. & E. I. Railroad Co. v. Coggins, 212 Ill. 369; Chicago Railroad Co. v. Zapp, 209 Ill. 339; Winn v. Railroad Co., 239 Ill. 132; T. St. L. & W. Railroad Co. v. Gallagher, 109 Mo.App. 67; B. & O. S.W. Railroad Co. v. Ayres, 119 Mo.App. 108; Newell v. Ry. Co., 261 Ill. 505; C. & A. Ry. Co. v. Robinson, 8 Mo.App. 140; Curlin v. Ry. Co., 243 Ill. 64.

Charles P. Noell, Charles L. Moore and Hensley, Allen & Marsalek for respondent.

(1) Since the law of Illinois governing a case of this character was neither pleaded nor proved, the case is governed throughout by the principles of the common law as interpreted and applied by our own courts. Rashall v. Railroad, 249 Mo. 509; Lyons v. Railroad, 253 Mo. 143; Gibson v. Railroad, 225 Mo. 473; Edwards Brokerage Co. v. Stevenson, 160 Mo. 517; Davis v. McCall, 179 Mo.App. 198; Sterling v. Parker-Washington Co., 185 Mo.App. 211; Gordon v. Andrews, 2 S.W.2d 813; Industrial Acceptance Corp. v. Webb, 287 S.W. 660; Otto v. Pryor, 193 S.W. 29. (2) This court will not take judicial notice of either statutes of Illinois or decisions of its courts, but will take judicial notice that Illinois is a common-law state and that presumptively the common law remains there in force, and will interpret and apply the common law according to its own established precedents and rules of decision. Rashall v. Railroad, 249 Mo. 517; Lyons v. Railroad, 253 Mo. 151; Edwards Brokerage Co. v. Stevenson, 160 Mo. 528; Industrial Acceptance Corp. v. Webb, 287 S.W. 660; Sterling v. Parker-Washington Co., 185 Mo.App. 211; Otto v. Pryor, 193 S.W. 29. (3) Since defendant had for years maintained crossing gates at the crossing in question, with a warning bell, with a watchman in charge thereof up to midnight, which plaintiff, as a member of the traveling public, knew, the failure to have the watchman at his post and to sound the bell and lower the gates upon the approach of the train was negligence on defendant's part. Montgomery v. Railroad, 181 Mo. 477; Toeneboehn v. Railway Co., 317 Mo. 1096; Peppers v. Railroad Co., 316 Mo. 1105; Gurley v. Railroad Co., 122 Mo. 149; Tisdale v. Railroad Co. (Tex.), 160 A. L. R. 1275. (4) Also, under the circumstances shown in evidence, the operators of defendant's engine were guilty of common-law negligence in failing to sound the bell of the locomotive or to otherwise give appropriate warning of the approach of defendant's train to this crossing; the failure to give such warning being a failure to exercise ordinary care under the circumstances. Allen v. Railroad Co., 313 Mo. 43; Bachman v. Railroad, 310 Mo. 48; Toeneboehn v. Railway Co., 317 Mo. 1096; Peppers v. Railway Co., 316 Mo. 1105; Jackson v. Railroad, 171 Mo.App. 441; Yoakum v. Railway Co., 199 S.W. 263; Hodges v. Railway Co., 71 Mo. 50; Bauer v. Railway Co., 69 Mo. 219. (5) If there may be said to be any evidence of negligence on plaintiff's part contributing to his injuries, the question of his contributory negligence is one for the jury. The open gates and the failure to ring the crossing alarm constituted, under the circumstances, an invitation to plaintiff to cross the tracks, and an assurance to him of safety in so doing. And the evidence shows that, though relying upon the custom to lower the gates and sound the bell, plaintiff took every precaution for his own safety. Bachman v. Railroad, 310 Mo. 48; Montgomery v. Railroad, 181 Mo. 477; Yonkers v. Railroad, 182 Mo.App. 558; Wack v. Railway Co., 175 Mo.App. 111; Curlin v. Terminal Railway Co., 232 S.W. 217; Rollinson v. Lusk, 203 Mo.App. 37; Moore v. Davis, 210 Mo.App. 191; Dutton v. Terminal Railway, 316 Mo. 979; Toeneboehn v. Railway Co., 317 Mo. 1096; Malone v. Railway Co., 220 Mo.App. 9. (6) The evidence is to be viewed in the light most favorable to plaintiff, giving plaintiff the benefit of every inference which a jury might with any degree of propriety have drawn from the evidence. And when the evidence is thus viewed, if there is any substantial evidence to support the verdict the case is one for the jury. Buesching v. Gas Light Co., 73 Mo. 219; Bachman v. Railroad, 310 Mo. 61; Biondi v. Coal & Coke Co., 9 S.W.2d 596. Any conflict between plaintiff's testimony on direct examination and on cross-examination, or in his deposition, was purely a matter for the jury. Sugarwater v. Fleming, 316 Mo. 742; Biondi v. Coal & Coke Co., 9 S.W.2d 596.

OPINION

Ragland, J.

This is an action for personal injuries alleged to have been sustained by plaintiff as the result of a collision between an automobile in which he was riding and a train of cars being run and operated by defendant. The collision occurred on the night of November 1, 1925, at the point where defendant's railroad crosses Bond Avenue in East St. Louis, Illinois. The trial of the cause in the circuit court resulted in a judgment for $ 25,000 in favor of plaintiff. From such judgment defendant prosecutes this appeal.

As appellant's chief contention here is that the trial court should have sustained its demurrer to the evidence, on the ground that plaintiff was guilty of contributory negligence as a matter of law, only the evidence most favorable to plaintiff with respect thereto need be stated with any degree of particularity.

In describing the place of collision only general directions will be given, they being sufficiently accurate for all purposes of the case.

Bond Avenue extends east and west; it is crossed at right angles by defendant's railroad, which at the point of crossing consists of two main tracks and which run north and south in and along 21st Street. At the time of the collision there were gates across Bond Avenue on each side of the crossing, on the arms of which were attached red lights. These gates were raised and lowered by a watchman stationed in a tower at the northwest corner of the intersection of Bond Avenue and 21st Street. The arms of the gates were maintained in an almost perpendicular position, except when a train was approaching or passing over the crossing. When a train approached, the watchman lowered the gates and started a bell in the tower ringing; he kept the gates down and continued to ring the bell until the train passed. This he did during the day and until twelve o'clock midnight. The gates and bell had been continuously so operated for a number of years prior to the collision, and defendant's custom and practice in this respect were well known to plaintiff. He testified that he was relying upon their observance as he approached and started to drive over the crossing on the occasion in question.

About eleven P. M. on the date heretofore mentioned plaintiff was driving west on Bond Avenue approaching the railroad crossing on 21st Street. At the same time an engine and a...