Hein v. Terminal R. R. Ass'n of St. Louis
| Decision Date | 14 November 1949 |
| Docket Number | 41351 |
| Citation | 224 S.W.2d 963,359 Mo. 946 |
| Parties | Edward Hein, Respondent, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Motion for Rehearing or to Transfer to Banc Overruled December 12 1949.
Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.
Reversed and remanded.
Plaintiff truck driver was struck by a train operated by another railroad company upon defendant's tracks. A prior judgment in which there was a jury verdict for a codefendant railroad company and a judgment for plaintiff against defendant was reversed and remanded was not res judicata. There was a submissible case of a dangerous crossing creating a duty to warn, and plaintiff was not guilty of contributory negligence as a matter of law. But there was an erroneous instruction on the duty to warn, and the judgment for plaintiff is reversed and remanded.
Warner Fuller, William A. Thie and Arnot L. Sheppard for appellant.
(1) Plaintiff failed to make a prima facie case against defendant. If any duty was upon defendant to warn, or to provide means of warning plaintiff of the approach of the C. & E.I. train, the same duty rested upon C. & E.I. C.C.C. & I.R. Co. v. Schneider, 45 Ohio St. 678, 17 N.E. 321; Webb v. Portland R. Co., 57 Me. 117; McGrath v. N.Y.C.R. Co., 63 N.Y. 522; Loos v. Wheeling & L.E. R. Co., 60 Ohio App. 527, 22 N.E.2d 217; Schulte v. L. & N.R. Co., 128 Ky. 627, 108 S.W. 941; Beal v. C.B. & Q.R. Co., 285 S.W. 482. (2) Plaintiff could have litigated at the prior trial the alleged failure of C. & E.I., as well as of defendant, to warn or provide means for warning plaintiff of the approach of the C. & E.I. train. His failure to do so, bars him from now pressing that charge against defendant. Citizens Security Bank of Englewood v. Gatewood, 36 S.W.2d 426; State ex rel. Wors v. Hostetter, 343 Mo. 945, 124 S.W.2d 1072; Anderson v. West Chicago Street Ry. Co., 200 Ill. 329; Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118; Jenkins v. A.C.L.R. Co., 89 S.C. 408, 71 S.E. 1010. (3) Upon plaintiff's failure to appeal from the judgment rendered in the first trial against him and in favor of C. & E.I., that judgment became a final decision that the C. & E.I. was not guilty of any actionable negligence. Defendant alone appealed from that judgment. Hein v. C. & E.I.R. Co., 209 S.W.2d 578. (4) The lessor or owner railroad can never be liable for an act done by the lessee or user railroad, unless that act shall constitute actionable negligence. Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 56 L.Ed. 1009; 50 C.J.S., sec. 760 (c), p. 286; Anderson v. West Chicago Street Ry. Co., 200 Ill. 329, 65 N.E. 717; Logan v. Railroad, 82 S.C. 522, 64 S.E. 515; Rockard v. Railroad, 84 S.C. 190, 65 S.E. 1047; Jenkins v. A.C.L.R. Co., 89 S.C. 408, 71 S.E. 1011; Seay v. Sou. R. Co., 37 S.E.2d 535; Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401. (5) Regardless of the statutes mentioned, supra, liability cannot be cast upon defendant for the acts of C. & E.I. when the C. & E.I. was not guilty of actionable negligence. In such a case there would be nothing for which defendant could become liable. Emery v. Fowler, 39 Me. 326, 63 Am. Dec. 627; Portland Mining Co. v. Stratton's Independence, Ltd., 158 F. 63; Brown v. Wabash R. Co., 281 S.W. 64; Taylor v. Sartorious, 130 Mo.App. 23, 108 S.W. 1089. (6) But if it should be conceded that plaintiff may again litigate the question of crossing protection, there is no evidence that the crossing in question was extra-hazardous. Consequently, there was no duty on C. & E.I. or defendant to furnish a watchman or other warning device at the crossing. Welsch v. Hannibal & St. J.R. Co., 72 Mo. 451; Homan v. M.P.R. Co., 334 Mo. 61, 64 S.W.2d 617; Dimond v. Term. Railroad Assn., 346 Mo. 333, 141 S.W.2d 789. (7) Plaintiff's contributory negligence as a matter of law bars his recovery. Borrson v. M.-K.-T.R. Co., 351 Mo. 229, 172 S.W.2d 835; State ex rel. v. Hughes, 348 Mo. 177, 153 S.W.2d 46; Scott v. Kurn, 343 Mo. 1212, 126 S.W.2d 185; Monroe v. C. & A.R. Co., 297 Mo. 633, 249 S.W. 644, 257 S.W. 469; Rischeck v. Lowden, 347 Mo. 426, 147 S.W.2d 650. (8) An automobile driver who relies, as did plaintiff, wholly upon a crossing watchman to warn him of the approach of a train, is guilty of contributory negligence as a matter of law. Jurgens v. Thompson, 350 Mo. 914, 169 S.W.2d 353. (9) Plaintiff's Instruction 1 is erroneous for several reasons. It informs the jury that it was the unqualified duty of defendant under all circumstances to use ordinary care to give warnings at all grade crossings of the approach of trains along its tracks even though they were trains of other railroads. The law casts no such duty upon defendant and no authority will be found so saying. (10) It postulates a finding by the jury that plaintiff was unaware of the approach of the train involved and that defendant knew or by the exercise of ordinary care could have known that plaintiff was attempting to cross the track and was unaware of the approach of the train. This is broader than the evidence and wholly unwarranted by it, as there is no evidence whatever that defendant knew or could have known any of such facts. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Allen v. Mo. Pac. R. Co., 294 S.W. 80. (11) No employee of defendant, except the O'Fallon Street crossing watchman and a crew of track laborers, were present at the time of plaintiff's injury. Therefore if defendant could have known that plaintiff was attempting to cross the track and was unaware of the approach of the train, it could have acquired such knowledge only through that crossing watchman. But that watchman owed plaintiff no duty, because he was not watching the crossing where plaintiff no duty, because he was not watching the crossing where plaintiff was injured. Hein v. C. & E.I.R. Co., 209 S.W.2d 578. (12) It predicates a finding by the jury that the defendant failed "to provide any means to warn plaintiff of the train's approach." There is no evidence that the crossing involved was extra-hazardous, and, therefore, no evidence to support a predicate that under the circumstances here involved any duty rested on defendant to provide any means to warn plaintiff of the approach of the C. & E.I. train. See authorities under (6). (13) The instruction assumes that it was the legal duty of defendant to provide means to warn plaintiff of the approach of the C. & E.I. train, without requiring the jury so to find, requires the jury to find only that defendant failed to provide such means, and tells the jury that if it so finds then defendant was negligent. The instruction, therefore, erroneously assumes a controverted fact. Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 24 S.W.2d 143. (14) It is directly in conflict with Instruction 2 given at defendant's request, in which the jury was properly told that before it could find favorably to plaintiff, it must find from the evidence that the crossing "was a particularly dangerous one". This hypothesis is correct. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (15) It is too general; and fails to require the finding of any specific facts which would constitute negligence. Ward v. Poplar Bluff Ice & Fuel Co., 264 S.W. 80; Allen v. Quercus Lumber Co., 190 Mo.App. 399, 177 S.W. 753.
Everett Hullverson and Forrest Boecker for respondent.
(1) Plaintiff made a submissible case against appellant, based on appellant's duty to warn plaintiff of the approach of a train operated on appellant's tracks by another railroad entirely apart from any duty to warn devolving upon the operating railroad, in view of the circumstances existing at the time and place of plaintiff's accident. Hein v. C. & E.I. Ry., 209 S.W.2d 578. (2) Appellant, independently of the operating railroad, had created a hazardous condition at the crossing. Wright v. St. L.-S.F. Ry. Co., 327 Mo. 557, 37 S.W.2d 591; Domitz v. Springfield Bottlers, Inc., 221 S.W.2d 831. (3) Appellant had notice of public user of the crossing at which the accident occurred and was under duty to warn persons of the approach of trains. Mayfield v. K.C. So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Hilton v. Terminal R. Assn., 345 Mo. 987, 137 S.W.2d 520; Fowler v. M.K. & T. Ry. Co., 229 Mo.App. 561, 84 S.W.2d 194; Scott v. Mo. Pac. R. Co., 333 Mo. 374, 62 S.W.2d 834. (4) The fact that this crossing connects two lanes of a public street which lie on either side of appellant's tracks, itself argues for treating this as a public crossing. (5) The creation of this special hazard at this crossing by appellant gives rise to a jury issue as to whether appellant should have provided crossing protection, absent legislative compulsion. Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617; State ex rel. Kurn v. Hughes, 348 Mo. 187, 153 S.W.2d 46; Thomas v. C.R.I. & P. Ry. Co., 271 S.W. 862. (6) The duty to look out for plaintiff and warn him of the train's approach was that of appellant corporation, regardless of which human agent, if any, was charged with fulfilling that duty. Rodgers v. St. L.-S.F. Ry., 31 S.W.2d 546. (7) As an alternative to the foregoing, we contend this court should hold that, under the circumstances of the case, it was for the jury to decide whether appellant's crossing watchman at the adjacent street crossing had a duty to look out for plaintiff and warn him of the train's approach. Florida Cent. & P. Ry. Co. v. Foxworth, 41 Fla. 1, 25 So. 338; B. & O.R.R. Co. v. Owings, 65 Md. 502, 5 A. 329; Southern Ry. Co. v. Fisk, 159 F. 373. (8) Plaintiff was not guilty of contributory negligence as a matter of law. Wright v. St. L.-S.F. Ry. Co., supra; Sing v. St. L.-S.F. Ry., 30 S.W.2d 37; State ex rel. Kurn...
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