Jones v. Illinois Terminal R. Co.

• Decision Date: 08 November 1954
• Docket Number: No. 43751,43751
• Citation: 272 S.W.2d 272,364 Mo. 1102
• Parties: JONES v. ILLINOIS TERMINAL R. CO.
• Court: Missouri Supreme Court

Page 272

272 S.W.2d 272

364 Mo. 1102

JONES v. ILLINOIS TERMINAL R. CO.

No. 43751.

Supreme Court of Missouri, En Banc.

Nov. 8, 1954.

Ely & Ely, Robert C. Ely, St. Louis, for appellant.

Barnhart, Wood & Bransford and C. V. Barnhart, St. Louis, for respondent.

BOHLING, Commissioner.

Emma S. Jones recovered a judgment for $10,000 against the Illinois Terminal Railroad Company, a corporation, for personal injuries sustained when the automobile in which she was riding was struck by one of defendant's interurban cars. The verdict was signed by ten jurors. The principal controversy on this appeal is whether plaintiff's main instruction was erroneous.

Mrs. Jones, plaintiff, lived in East St. Louis. On Sunday afternoon, August 20, 1950, a fine Summer day, Mr. and Mrs. Gustave Miller (plaintiff's son-in-law and daughter), Mrs. Mary Davis (plaintiff's sister), and John Blumer (plaintiff's brother) went for a pleasure ride in Mr. Miller's 1936 Oldsmobile sedan. Mr. and Mrs. Miller, with their infant daughter, occupied the front seat. Mrs. Davis was on the right, plaintiff in the middle, and Mr. Blumer on the left of the back seat.

The accident occurred in Madison, Illinois, at the intersection of Second street, an east-west street, and defendant's northsouth single line railroad track. Plaintiff's automobile was traveling east and defendant's interurban car was southbound from Alton to St. Louis. Defendant's track is immediately west of the west curb line and parallels McCambridge avenue, which at that point is U. S. Highway '66-67 Bypass.' Defendant's track and McCambridge avenue pass over a viaduct several hundred feet south of Second street. Photographs offered in evidence show that west of defendant's track to the north of Second street was a telephone and electric pole line, then a sidewalk, and then a private residence. Plaintiff had evidence that a line of trees extending north from Second street near the east property line obstructed the view to the north for eastbound travelers on Second street. For eastbound traffic on Second street there was, 7 or 8 feet west of the track, an iron pole with a crossarm 'railroad crossing' sign and an electrically operated warning light, with the words 'Stop on red signal,' and, 15 feet west of the track, a highway 'Stop' sign.

Mr. Miller approached this intersection soon after 4:00 p. m. He, as well as plaintiff, was familiar with the crossing. Mr. Miller stopped with the front bumper of his automobile about even with the highway 'Stop' sign. He could see to the south up to the top of the viaduct along defendant's track, but only about 140 or 150 feet (the trees obstructed the view) to the north. He looked in both directions and saw no car or train. The railroad warning signal was not 'on,' did not show red. The windows of the automobile were down. Mrs. Miller, Mrs. Davis and plaintiff gave corroborating testimony. They did not see or hear any approaching interurban car, or warning by bell, whistle or horn, or by the railroad warning signal. Mr. Miller started ahead, east, and continued to increase his speed. He looked again when the front wheels passed over the west rail of the track, and saw defendant's southbound car about 100 feet to the north. He speeded up trying to clear the track, reaching a speed of about six miles an hour, but when the rear wheels were just off of the east rail, the automobile was struck by defendant's car, pushed off the track, and plaintiff was injured. No one in the automobile said anything during this time.

Plaintiff testified that as they approached the crossing she saw the railroad warning signal, and observed it while the automobile was stopped and until the automobile moved about a car's length ahead, sixteen to seventeen feet, and she passed it. The red light 'wasn't working'; 'wasn't lit up.' She did not see defendant's car prior to the collision.

Defendant's evidence was to the following effect. The railroad warning signal shows a red light for eastbound traffic on Second street when a southbound interurban car passes the station at Fourth and McCambridge avenue, two blocks, approximately 900 feet, north of Second street, and continues to show red until the car is approximately 600 feet south of Second street near the top of the viaduct. This warning signal has a 'peephole' on the side so the motorman can see whether the light is working. The interurban car stopped at Fourth street for a passenger and Ralph A. Coons, the motorman, saw the warning signal for Second street working while the passenger was boarding the car. The car was equipped with an air horn; and when it passed Third street he started sounding the standard crossing signal for Second street--two longs, a short, and a long. He testified he saw the automobile before it reached the highway 'Stop' sign; that it did not stop but continued on eastwardly, and when the rear wheels of the automobile were about the center of the railroad tracks, the automobile stopped. He estimated that he had attained a speed of not over 18 to 20 miles an hour from his start at Fourth street and that the car was about 35 feet to the north when the automobile stopped on the track. He immediately applied the emergency brake, threw it over into 'big hole' to give the greatest amount of air to stop the car. The car is about 50 or 52 feet in length, and when it stopped, the rear end was even with the south curb of Second street. Leo Watson, defendant's conductor, Mr. and Mrs. James Hall and Tillie Nornberg, passengers on the car, testified that the horn of defendant's car was being sounded; that the signal light at Second street was working, showing red for eastbound traffic, and one witness stated that had the automobile kept on going it would not have been struck.

Plaintiff pleaded but did not predicate a recovery on the failure of defendant's warning signal to function. One of defendant's submitted factors on contributory negligence was plaintiff's failure to see and heed the warning given by said signal and to warn the driver of the automobile that a train was approaching.

Defendant's main attack is against the clause italicized below in plaintiff's sole verdict directing instruction, reading:

'The Court instructs the jury that the defendant railroad company did not have an absolute and unqualified right of way at the crossing mentioned in evidence, but owed the duty to exercise ordinary care to avoid a probable accident thereat, which duty commenced as soon as defendant's motorman knew, or had reason to apprehend that a vehicle approaching the crossing apparently would not stay out of danger and the Court further instructs you that the defendant railroad company was not relieved from such duty to exercise ordinary care to avoid a probable accident by having erected and maintained a properly functioning automatic warning signal at said crossing.

'Therefore, * * * if you find and believe from the evidence * * *,' in effect, that 'on the occasion in question' there was, prior to said collision, 'probable danger of a collision' between the interurban car and the automobile; that defendant's motorman knew of such danger in time thereafter to have avoided said collision by either stopping or slackening the speed of said car; that the motorman failed to avoid the collision and in...