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

• Decision Date: 07 March 1939
• Docket Number: No. 24928.,24928.
• Parties: HOLMAN v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

125 S.W.2d 527

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

No. 24928.

St. Louis Court of Appeals. Missouri.

March 7, 1939.

Rehearing Denied March 21, 1939.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Action by Simon Holman against the Terminal Railroad Association of St. Louis to recover for injuries sustained in a collision between an automobile and defendant's train. Judgment for plaintiff for $7,500, and defendant appeals.

Affirmed.

T. M. Pierce, J. L. Howell, William A. Thie, and Walter N. Davis, all of St. Louis, for appellant.

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

HOSTETTER, Presiding Judge.

The plaintiff, Simon Holman, a colored man, instituted this suit in the circuit court of St. Louis city on August 12, 1935, to recover damages for personal injuries sustained by him in a collision between an automobile in which he was riding and one of defendant's trains.

The pleadings were voluminous. The amended petition, on which the case was tried, set out in substance the following: that the accident occurred on the 29th of December, 1934, while plaintiff was a passenger in an automobile being driven by his colored friend, Clarence Amos, eastwardly on St. Clair Avenue in the city of East St. Louis, Illinois; that St. Clair Avenue intersects Second Street at right angles in said city and is known as Pennsylvania Crossing; that the train, traveling southwardly, owned and operated by defendant, ran into and demolished the automobile in which plaintiff was riding, at said intersection and inflicted certain injuries on plaintiff (describing them); that the defendant was guilty of divers and sundry acts of negligence (describing them in detail); that there were various orders of the Illinois Commerce Commission in respect to defendant's duties in operating trains at crossings (set out therein); that plaintiff prayed judgment for $7500 and costs.

The answer to the amended petition contained first, a general denial, and references to the Law of Illinois and to the duty imposed on persons in automobiles at crossings.

The reply consisted of a general denial of the defendant's answer, and also set out certain laws of the State of Illinois bearing upon the duties of operators of railroad trains at crossings, etc.

The trial of the issues to a jury was concluded on November 19, 1937, resulting in a verdict for $7500 for the plaintiff, upon which judgment was rendered. After an unavailing motion for a new trial the defendant perfected its appeal to this court.

Plaintiff's evidence was to the effect that he was 47 years old, married, and employed by the Federal Barge Lines; that prior to the date of the reception of his injuries he was in perfect health and formerly played professional baseball with the Memphis Red Sox as a shortstop, and pitcher; that he was being driven, at about fifteen to twenty miles per hour, eastwardly upon St. Clair Avenue on the night of the accident; that he and Clarence Amos, the driver of the car, were returning from the home of a friend in Brooklyn, Illinois.

Plaintiff testified: "When we approached the railroad tracks there this train, it was on this first track; as we came from Brooklyn here the train jumps out from behind the building right on us; when I knowed anything, this train was right on top of us; the gates were standing straight up; there wasn't no gates lowered, and no flagman there; no train was showing out there at all; that when I knowed anything the train was on top of us; it was backing up going south; the headlights of the locomotive was facing north."

Plaintiff further testified that at this intersection St. Clair Avenue is about fifty to sixty feet in width and that as they approached the crossing there was no bell or whistle sounded at any time; that there was no loud or unusual noise to interfere with his hearing; that it was misting snow and rain and water running in every direction, but not freezing; that the tracks upon which the train was running are located about six feet east of the building at the northwest corner of the intersection; that he was seated on the right side on the front seat of the automobile and it was struck on the left side and was carried and knocked completely across St. Clair Avenue into the base of the standard upon which the gates set; that the crossing is protected by gates, but that they were not lowered at any time; that there was no crossing watchman; that the watchman did not appear until about fifteen minutes after the accident, and that he came up from across the tracks somewhere about the buildings just as the ambulance drove up; that the engine was backing south with the tender foremost; that there was no light observable on the rear end of the tender; that the engine passed over and stopped about forty or fifty feet south of St. Clair Avenue.

Plaintiff further testified that he was familiar with the crossing in question; that he has passed over it numerous times within the last seven years; that when the gates were up in the air he understood that to mean you could drive on through; that when they are lowered you have to stop; that one driving east on St. Clair Avenue, approaching defendant's tracks, cannot see a train approaching from the north and going south; that when the gates are up "you know that means pass on through; this is a highway; it keeps on going; anywhere the gates is open, that means come on; the gates was up when we was hit; that is what I have been trying to explain all the time."

Plaintiff described his injuries as follows:

"Q. Tell the jury, if you will, where you were injured. A. Injured in this leg right here (indicating) and in my back, head, both of my legs, but this was the main one (indicating); that got them four places on it, and a little bone worked out of this largest place here (indicating), about that size (indicating).

"Q. So far as you know, were your legs in good condition before this accident happened? A. Yes sir.

"Q. Now, you spoke of some injury to your head; tell us just what happened. A. I has a misery in my head now; whenever I work, or anything, I can't work over two or three days before I am broke down in my back and head; I have a misery in my head off and on all the time.

"Q. Did you get any lick or blow to your skull in that accident? A. I guess so; all down under that wreck; I thought we was killed."

Clarence Amos testified on behalf of plaintiff as follows: that he was operating his automobile eastwardly on St. Clair Avenue, accompanied by the plaintiff; that as one approaches the crossing in question "you can't see north on the track until you get out from behind that building"; that the building is two stories high, but that he did not know just how far back it extended, but that it was a pretty long building; that there were railroad gates located at the crossing and they were standing straight up; that they were not lowered at any time before the collision or at any time after the collision; that the automobile was traveling about fifteen miles an hour; that the visibility was not good, but one could see about a block away; that the automobile was right on the tracks when he first saw defendant's engine; that it seemed to be about three or four feet away; that the engine was proceeding south, the tender being farthest south; that there was no signal given of the approach of the train, no bell rung or whistle sounded; that he had no knowledge that the train was there before the time he saw it; that there is one light at the intersection on the southeast corner; that the locomotive hit the left front door of witness' automobile, knocking it around and back up against the gates; that it was on the sidewalk up against some kind of a bumping block or something; that the automobile was "torn all to pieces, as near as I can tell you"; that as he (witness) came up to the crossing there was no one out there with a lantern flagging the crossing; that plaintiff was knocked out and under the automobile following the impact; that George Bruckman, who is now dead, and another fellow helped witness out; that the building at the northwest corner is about five or six feet from the railroad track; that no watchman was at the crossing; that if he had been out there he (witness) would have seen him; that "you can't see to the north until you get right out on them tracks"; that St. Clair Avenue is fifty to sixty feet wide and going at fifteen miles an hour he could have stopped the automobile in about fifteen or twenty feet; that he did not see a headlight on the tender burning; that he had been driving an automobile for about ten years and had driven over that crossing for around five or six years and from his experience when the gates were up he took it to mean that the crossing was clear; that at other times he had seen them put the gates down; that there was nothing there that night to cause him to stop as he approached the tracks; that he had no knowledge of any kind that there was a train going south on the track until he saw it just a few feet away.

Defendant makes four assignments of error.

The first charges that the court erred in giving plaintiff's instruction No. 2, which reads as follows: "The Court instructs the jury that if you find and believe from the evidence that on or about the 29th day of December, 1934, the plaintiff was a passenger in an automobile which was being driven eastwardly over and upon St. Clair avenue in the City of East St. Louis, Illinois, if you so find; and if you further find that while the said automobile was attempting to cross a set of railroad tracks which intersect with the said St. Clair avenue at right angles, the defendant operated a certain locomotive southwardly over and along the railroad tracks, if you so find; and if you further find that at and prior to the time the said automobile in which the plaintiff was a passenger approached the...