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

• Decision Date: 09 January 1940
• Docket Number: No. 25059.,25059.
• Citation: 135 S.W.2d 652
• Parties: GREEN v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

135 S.W.2d 652

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

No. 25059.

St. Louis Court of Appeals. Missouri.

January 9, 1940.

Rehearing Denied January 26, 1940.

Appeal from St. Louis Circuit Court; Frank B. Coleman, Judge.

"Not to be reported in State Reports."

Action to recover damages for the death of a party as a result of a collision between an automobile and a locomotive by Charles H. Green, administrator of the estate of James A. Boyd, deceased, against Terminal Railroad Association of St. Louis, a corporation. From a judgment for the plaintiff, defendant appeals.

Affirmed.

Carleton S. Hadley, T. M. Pierce, Walter N. Davis, William A. Thie, and Arnot L. Sheppard, all of St. Louis, for appellant.

Louis E. Miller and Robert R. Adams, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for the death of James A. Boyd alleged to have resulted from injuries sustained by him in a collision between his automobile, which he was driving, and a locomotive being operated by defendant on its tracks, in East St. Louis, Illinois. The collision occurred on November 7, 1935, about one o'clock a. m., at the intersection of Missouri Avenue and Twenty-first Street.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $4,500. Judgment was given accordingly, and defendant appeals.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence. It puts this assignment on the grounds (1) that the evidence shows that Boyd was guilty of contributory negligence as a matter of law in failing to look and see the locomotive approaching the intersection in time to have stopped his car and avoid the collision, and (2) that the evidence wholly fails to show that Boyd's death resulted from his injuries.

Missouri Avenue runs east and west and Twenty-first Street runs north and south. Defendant maintains two railroad tracks on Twenty-first Street. The west track is used for southbound trains and the east track for northbound trains. That street is not used for any other vehicular traffic. There are buildings on the north side of Missouri Avenue east of Twenty-first Street. There is a large building at the northeast corner of the intersection. The building line is twelve feet from the north curb of Missouri Avenue. It is seventeen feet from the building at the northeast corner to the east rail of the east track, and it is thirty feet from the building to the east rail of the west track. There are two concrete slabs on Missouri Avenue. Each of these slabs is eighteen feet wide. There is a space between the slabs in the center of the street covered with cinders. There are crossing gates at the intersection on Missouri Avenue. These gates had been maintained and operated by the defendant for a long time prior to the accident. They were customarily lowered, and a crossing bell rung, when a train or engine was approaching. It is twenty-five feet from the crossing gates on the east side of the intersection to the east rail of the east track and thirty-eight feet from these gates to the east rail of the west track. The cross arm of the northeast crossing gate is 30.5 feet long and the gate at the southeast corner is 30.2 feet long, so that the two gates total 60.7 feet. There is a gap of four or five inches between the two gates in the center of the street. The concrete slab on the north side of Missouri Avenue is used by westbound traffic, and the slab on the south side is used for eastbound traffic. On the occasion of the accident there was a red lantern hung on the northeast gate, which, when the gate was lowered, hung over the middle of the slab on the north side of the street.

Boyd was driving a Chevrolet coupe at the time of the accident. He was driving west on the north slab on Missouri Avenue. The left window of the coupe was open. His girl friend, Glenna Wilson, was seated to his right next to him, and one Foley was seated next to her on the right, and his girl friend, Goldie Greenfield, was sitting on his lap. Defendant's locomotive, with a caboose attached, was proceeding south on the west track.

Paragraph 84, chapter 114, of the Illinois Bar Statutes, 1935, Ill.Rev.Stat.1939, c. 114, § 59, reads as follows: "Every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached."

General order No. 123 of the Illinois Commerce Commission provides as follows: "All trains must approach street crossings at grade within municipalities with caution, and, where view is obstructed from any cause, with train under control."

Boyd's testimony, given upon the trial of the case of Glenna Wilson v. Terminal Railroad Association, which arose out of the same accident we are concerned with here, was introduced in evidence in the present case. He testified that he was familiar with the crossing gates and the crossing at Twenty-first Street and Missouri Avenue, and that he knew it was the practice of the Terminal Railroad at the crossing to lower the gates whenever a train was approaching the crossing; that as he approached this crossing the gates were up and nothing was in sight; that when he saw the gates up he did not expect a train to come through there at that time; that the weather was kind of misting like, but it wasn't raining; that he did not see the train before the collision; that he was traveling along slowly looking straight ahead; that the first he knew of the presence of the trian was when it first appeared about twelve feet in front of him, and he didn't have time to do anything; that his coupe struck the engine about ten feet from the front of the engine; that he was about twelve feet from the first rail of the track the engine was on when he first saw the engine, that is, the front end of his car was about twelve feet, and he himself about fifteen feet, from the engine, when he first saw the engine; that prior to the collision he heard no bell rung or whistle sounded as he approached the crossing; that the window on his side of the car was down and the other window was up; that he was going slow, about fifteen miles per hour, and at that speed he could stop his car in about fifteen feet; that when he first saw the engine he put on his brakes and did everything he could to stop, but was too close and was unable to stop in time to avoid the collision.

Plaintiff's evidence tends to show that the locomotive bell was not rung nor the whistle sounded, nor the crossing bell rung, as the locomotive approached the crossing. Boyd's testimony that the crossing gates were up as he approached the crossing was strongly corroborated by a number of witnesses. It was further shown, by the witnesses for both plaintiff and defendant, that the gates were not broken or marked, and that the lantern, hung on the northeast gate, was not broken or disturbed, but was still burning after the accident. However, the trainmen and the crossing watchman testified, for defendant, that the gates were lowered and that Boyd drove his car through the gates at a speed of about forty-five miles per hour and ran into the locomotive, that the locomotive bell was rung and the whistle sounded, and that the crossing bell was rung, as the train approached the crossing. The evidence is undisputed that the gates when lowered were about three feet above the pavement.

Under this evidence, it is obvious that the decedent may not be convicted of contributory negligence as a matter of law. Chicago & Eastern Illinois R. Co. v. Schmitz, 211 Ill. 446, loc. cit. 452, 71 N.E. 1050; Greenfield v. Terminal Railroad Ass'n, 289 Ill.App. 147, loc. cit. 151, 6 N. E.2d 888; Wilson v. Terminal Railroad Ass'n, Mo.App., 121 S.W.2d 232, loc. cit. 235.

With respect to the other ground urged in support of this assignment of error, the evidence shows that Boyd was rendered unconscious by the collision, and did not regain consciousness until the following day. His left ankle was broken; so was his left hand and the back of his right hand. There were lacerations of the chin, scalp, nose, and left knee. A growth developed on the tendon of the middle finger on the back of the right hand. Following the accident he suffered from nervousness and loss of weight. He lost twenty-four pounds in weight within four months following the accident. He was in good health prior to the accident. He suffered from weakness, nervousness, dizziness, headaches, and loss of sleep. He developed diabetes a few months after the accident, and continued to grow worse and lose weight until his death, which all the evidence shows resulted from diabetes.

Dr. H. H. Hurd, testifying for plaintiff on direct examination, stated that "the medical profession recognizes a condition known as traumatic diabetes, which is a condition in which the trauma brings on the unbalancing of the human body to control the sugar in the body." On hypothesized facts respecting the history of the case, and his knowledge of the case derived from his attendance upon the decedent, in March, April, and May, 1936, about a year before his death, he stated that in his opinion the trauma sustained by decedent in the collision was the producing or procuring cause of his diabetic condition.

Dr. William E. Hervey testified that in his opinion the trauma sustained by decedent in the collision could have produced a condition known as traumatic diabetes, that there was sufficient trauma to produce the diabetes.

Dr. L. A. Heeley testified that trauma is one of the causes of diabetes, and that, if there was no previous history and no symptoms prior to decedent's injury, he would assume that the injury had a good deal to do...