Grace v. Smith
| Decision Date | 14 June 1954 |
| Docket Number | No. 22061,22061 |
| Parties | GRACE v. SMITH et al. |
| Court | Missouri Court of Appeals |
Boyle G. Clark, Robert C. Smith, Jr., Columbia, J. H. Miller, St. Louis, Clark & Becker, Columbia, of counsel, for appellant.
Ralph L. Alexander, R. E. Ausmus, Columbia, Alexander, Harris & Welliver, Columbia, of counsel, for respondent.
SPERRY, Commissioner.
Plaintiff, administrator of the estate of Oda Grace, deceased, sued defendants, Wabash Railroad Company, a corporation, L. A. Smith, its engineer, and C. T. Schmidt, its fireman, for the wrongful death of Mrs. Grace, when a car in which she was riding was struck by a Wabash train near the station at Sturgeon, Missouri. The jury discharged Smith and Schmidt but found a verdict against Wabash, hereafter referred to as defendant, in the amount of $5,000. Defendant appeals.
After alleging various facts, with which we are not here especially concerned, plaintiff charged:
'That the said collision and the fatal injury and death of plaintiff's intestate were directly and proximately caused and occasioned by the carelessness and negligence of the defendants, L. A. Smith and C. T. Schmidt and Wabash Railroad Company, its agents, servants and employees in the following particulars to-wit:
'(A) That the defendants carelessly and negligently operated the said engine and train of cars at a rate of speed which, under the circumstances, was high, dangerous and excessive, to-wit: 75 miles per hour.
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'(D) That the defendant operated said engine and train of cars at a high and dangerous rate of speed and at a speed in excess of six (6) miles per hour in violation of the Ordinance of the City of Sturgeon, Missouri.
'(E) That the defendants failed to have and provide a watchman at said crossing and failed to have and provide a mechanical device thereat that would give sufficient warning of the approach of said engine and train of cars. * * *'
Defendant maintains a line of railroad through the town of Sturgeon. The road runs in an east-west direction, and crosses Ogden Street, the main street of the town, near the depot. It is a north-south street. There are three sets of tracks at this crossing, the furthest south is the house track, the set next, to the north, is the passing track, and the set north of that is the main line. The distance from the southernmost point of the south rail of the house track to the northernmost point of the north rail of the main line is 32 feet. There was a conventional crossarm railroad sign on the south side of the tracks, along the east side of Ogden Street. On the north side of the crossing, along the west side of the street, was a 'wig-wag' signal device, consisting of a metal disk from 12 to 15 inches in diameter, with a black cross painted on it, and with a red light bulb in the center of the disk. This device was attached to a post so that the disk faces traffic on the street and, when a train approaches, it lights up and swings in an arc of about one yard. On top of the post is a bell which rings at the same time that the 'wig-wag' operates. This device had been in use there for a long time prior to the date of the accident.
The evidence was to the effect that Mrs. Grace and her husband had, for many years, lived on a farm south of Sturgeon; that they did their shopping and banking in Sturgeon, where they also attended church; that they frequently visited their daughter, who lived north of Sturgeon; that they frequently drove to town, and to their daughter's home, over this crossing.
Mr. Carter, a lawyer who lived at Sturgeon, was driving south along Ogden Street, to his home, at about 7:10 p. m., on October 9, 1952. He testified to the effect that, as he approached this crossing he heard a train approaching from the west and observed the 'wig-wag' signal in operation; that he stopped his automobile about 60 feet north of the crossing and observed an automobile approaching from the south; that he turned off his lights; that the automobile did not stop or slow down, but approached at a speed of 20 miles per hour; that the train was whisting and its bell was ringing; that the 'wig-wag' signal was in operation, the bell ringing; that he didn't think the light was burning on the 'wig-wag'; that, when the automobile entered upon the main line, it was struck by the train; that the train was traveling at a speed of 75 or 80 miles per hour; that, when the bodies of Mr. and Mrs. Grace were found, Mr. Grace was dead. Mrs. Grace died within a few minutes thereafter. He stated that, at the time the accident occurred, there were two boxcars parked on the house track, west of the crossing; that the track curves to the northwest from the crossing; that, on account of the boxcars being located as they were and, on account of the curve, witness did not think that one approaching from the south, in an automobile, could have seen a train approaching from the west, even in daytime; that such a person would not have been able to see the headlight of an approaching train but might have seen rays of light therefrom; that the boxcars would block the view; that witness first saw the oscillating 'wig-wag' and heard the bell, when he was about 250 feet north of the crossing.
Mr. Seitz, signal maintenance man for the Wabash, stated that he was called to Sturgeon at about 10:00 p. m., October 9, to repair the light on the 'wig-wag' signal; that the wire was broken and the light was out; that, three days before, the light was in operation when he inspected it; that it is possible for the light to operate at one time, and fail to operate at another time, by reason of a broken wire.
Mr. Sexton stated that, one night some ten days before the accident, he observed a train pass over this crossing; that the light on the 'wig-wag' was not in operation; that, the following day, he asked the station agent of the Wabash if he had noticed this fact; that the Wabash maintenance man arrived during this conversation.
Mr. Estepp stated that, either on the morning of the accident or the day before, he observed that the light on the 'wig-wag' was not in operation.
Mr. Jennings stated that, after the accident, on the night of October 9, 1952, he observed a freight train pass through Sturgeon; that the light on the 'wig-wag' was not in operation; that, about a week or ten days before the accident occurred, he observed a train pass over the crossing; that the light on the 'wig-wag' was not in operation.
Mr. Palmer observed that the light was not in operation on the night of the accident, an hour or so after the accident occurred.
Mr. Roberts, while the train that caused the casualty was still on the track, noticed that the light was not working.
Mr. Smith, the engineer who was operating the train at the time the casualty occurred, stated that the train was scheduled to leave Moberly at 6:48 p. m., and arrive at Sturgeon at 7:00 p. m.; that the train actually left at 7:00 and arrived at 7:05, or 7:06; that the diesel motored engine was equipped with whistle, bell, headlight and Mar's light, the latter oscillating and throwing its beams to the front and to the side; that the speed at Sturgeon was 78 miles per hour; that there are no slow orders for Sturgeon; that he still travels through Sturgeon at 78 miles per hour; that maximum speed permitted is 78 miles; that when he observed the Grace automobile the engine was probably 75 feet from the crossing; that he applied emergency brakes before the collision occurred.
Mr. Schmidt, the fireman, stated that, on October 9, the train left Moberly at 7:00 p. m., and arrived at Sturgeon at 7:10; that it was due to leave at 6:48 and arrive at 7:00 p. m.; that the distance is 12-14 miles. The following question was asked the witness: He answered:
Plaintiff's main instruction was as follows:
'The Court instructs the jury that if you find and believe from the evidence that on October 9, 1952, at the time and place in question, in the City of Sturgeon, Boone County, Missouri, the defendant, Wabash Railroad Company maintained its railroad track for the operation of its trains thereon and thereover and that said railroad track then and there, ran generally in an east and west direction and if you further find and believe from the evidence that, at said time and place, Ogden Street was a public thoroughfare in the City of Sturgeon running in a north and south direction and intersected with the railroad track of the defendant, Wabash Railroad Company, and if you further find...
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