Hein v. Chicago & E. I. R. Co.
| Decision Date | 16 March 1948 |
| Docket Number | No. 27382.,27382. |
| Citation | 209 S.W.2d 578 |
| Court | Missouri Court of Appeals |
| Parties | HEIN v. CHICAGO & E. I. R. CO. et al. |
Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.
"Not to be reported in State Reports."
Action by Edward Hein against the Chicago & Eastern Illinois Railroad Company and the Terminal Railroad Association of St. Louis, a corporation, for personal injuries sustained by plaintiff when a truck driven by him was struck by first named defendant's passenger train on last named defendant's track. From a judgment on a jury's verdict for plaintiff against defendant Terminal Railroad Association only, such defendant appeals.
Reversed and remanded with directions.
Jones, Hocker, Gladney & Grand, Lon Hocker, Jr. and Vincent L. Boisaubin, all of St. Louis, for appellant.
Everett Hullverson, Gregg W. Keegan, Forrest Boecker and Carrell C. Gilpin, all of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action for damages for personal injuries sustained by plaintiff, Edward Hein, a truck driver in the employ of the Lueking Transfer Company, when his truck was struck by a passenger train of defendant Chicago and Eastern Illinois Railway Company, which was being operated over the tracks of defendant Terminal Railroad Association of St. Louis.
Upon a trial to a jury, a verdict was returned in favor of plaintiff and against defendant Terminal Railroad Association of St. Louis for the sum of $4,000, and in favor of defendant Chicago and Eastern Illinois Railway Company. Defendant Terminal Railroad Association of St. Louis thereupon filed its motion for a new trial; and this being overruled, it gave notice of appeal from the judgment against it, and by subsequent steps has caused the case to be transferred to this court for our review.
Since plaintiff did not appeal from the judgment in favor of defendant Chicago and Eastern Illinois Railway Company, the question of that defendant's liability is no longer in the case.
The accident occurred shortly before ten o'clock on the morning of August 17, 1946, on a private crossing over the Terminal's tracks some 100 to 200 feet north of the public crossing at O'Fallon Street, in the City of St. Louis.
While all the evidence disclosed that the truck had been struck as it was entering upon the private crossing north of O'Fallon Street, the petition had alleged that the accident occurred as plaintiff was operating his truck over the tracks and crossing "at Lewis and O'Fallon Streets, * * *, both open and public streets".
The negligence pleaded and relied upon as against the Terminal was the failure of a watchman which it maintained "at the said place" to warn plaintiff of the approach or movement of the train.
In its answer the Terminal admitted the averments of the petition respecting the fact of the collision "except as to the exact location thereof", and then generally denied the charge of negligence.
Further answering, the Terminal alleged that whatever injuries plaintiff had sustained had been caused or contributed to by his own negligence in several enumerated particulars, all of which were abandoned in the submission of the case except the charge that he had driven upon the track directly in the path of the train from a position where he could not see whether a train was approaching.
At the point in question the Terminal has three parallel tracks which run generally north and south. The first track to the east is a switch track, which is built to serve commercial and industrial plants in that vicinity. The middle track is the outbound main line, while the track to the west is the inbound main line. Several blocks south of the point of the accident the two main lines run for some distance along the riverfront over a trestle or "high line", and then curve to the west and run into Union Station.
O'Fallon Street runs generally east and west, and crosses the tracks at a right angle. A block to the north is Dickson Street, which stops dead end at the railroad tracks.
At the northeast corner of the O'Fallon Street crossing stands a building occupied by the Bowman Egg Company, which extends north along the switch track to the private crossing upon which plaintiff was injured on the occasion in question. Along the entire west side of the building, and fronting on the switch track, is a platform or loading dock at which refrigerator cars are spotted from time to time for loading or unloading as the case may be.
Immediately north of the Bowman Egg Company's building is a vacant lot or space which is used as a private parking lot for the convenience of persons having business with a cold storage company which owns the lot and whose building stands adjacent to it. North of the parking lot at Dickson Street is a warehouse belonging to the Cotton Belt Railroad.
The private crossing in question had apparently been constructed as a means of ingress and egress for the automobiles using the cold storage company's private parking lot. Plaintiff had known of its existence for as much as four or five months, and had been driving over it on an average of five or six times a month during that period. Whoever had constructed it had filled in the roadbed with chat up even with the rails to a width of about ten feet, or just enough for one vehicle to use it at a time. It begins at the southwest corner of the parking lot at the north end of the Bowman Egg Company's loading dock, and runs diagonally across the tracks and then into O'Fallon Street at the west end of the public crossing. The whole area in the vicinity of the point of the accident is given over to industrial uses, and is occupied by warehouses, cold storage plants, trucking establishments, and the like. A great many trucks are constantly moving throughout the area during business hours, and make frequent use of the public crossings at O'Fallon and Dickson Streets. The only trucks to use the private crossing are those which have business with the Cotton Belt warehouse, some three-fourths of which customarily pass over the tracks at that point.
The O'Fallon Street crossing is protected both by gates and by a watchman. The watchman's tower is located on the north side of O'Fallon Street at the west end of the crossing, and from this position the watchman controls the gates, which are raised and lowered from posts on the south side of the street at the respective ends of the crossing. When plaintiff was asked on cross-examination whether, from his long experience as a truck driver, he knew that "a crossing watchman protects the crossing on which he stands", he answered, "I know he is up there for that purpose, yes."
On the morning in question plaintiff had completed a delivery of freight to the Cotton Belt warehouse, and was on his way to the Burlington warehouse at Main and Carr Streets, some two blocks south of the O'Fallon Street crossing. His intention, after reaching O'Fallon Street, was to turn west on that street for one block, and then go south on Second Street for two blocks. Pressed on cross-examinations as to why he had not chosen a course over public streets for the whole of his route, he explained that any such course he might have taken would have presented serious difficulties. Had he attempted to cross the tracks at Dickson Street, he would have been confronted with the necessity for a sharp turn which he could not have conveniently made with his large truck; and other possible routes would likely have been blocked by trucks and trailers parked in such a manner as to have left no room for his own truck to go through.
At any rate, as he came away from the Cotton Belt warehouse onto Dickson Street, he turned south on the switch track, straddling the east rail until he came to the private crossing at the south end of the parking lot. On this occasion there was a refrigerator car spotted on the switch track alongside the Bowman Egg Company's loading dock, the end of which was about even with the steps leading down from the north end of the loading dock. No part of the refrigerator car was standing on the private crossing.
Coming south astride the outside rail of the switch track, plaintiff was able to see the outbound main line beyond O'Fallon Street through the space between the refrigerator car and the loading dock. However as he turned onto the private crossing, the refrigerator car shut off his view down the track, and as a consequence, before proceeding further on the crossing, he stopped his truck and sounded his horn in an attempt to attract the attention of the watchman, who was standing out in the street under the watchman's tower, with his flag dropped down by his side, and in conversation with some other man. The watchman paid no attention to plaintiff, and gave no indication that he had heard the horn. Assuming from all appearances that no train...
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...438, 245 S.W. 346, 348(1--3).9 Larkin v. Consolidated Service Car Co., Mo.App., 382 S.W.2d 453, 454--455(1); Hein v. Chicago & E.I.R. Co., Mo.App., 209 S.W.2d 578, 581--582(2); Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, 686(10), affirming (Mo.App.) 51 S.W.2d 559, ...
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Larkin v. Consolidated Service Car Co.
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