O'Keefe v. St. Louis & S. F. R. Co.

• Decision Date: 15 November 1904
• Citation: 108 Mo. App. 177,83 S.W. 308
• Parties: O'KEEFE v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

83 S.W. 308

108 Mo. App. 177

O'KEEFE v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

November 15, 1904.

RAILROADS — CROSSING GATES — OPERATION — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — CARE REQUIRED — INSTRUCTIONS.

1. A railroad crossing gateman in the exercise of ordinary care is required to keep the gate under his control at all times, and to keep his eyes on the street while lowering the gate, which duty is not performed by his merely glancing at the street as he began to operate the machinery by which the gate was lowered.

2. Where plaintiff approached a railroad crossing guarded by gates, and, after looking, and seeing the gates up and motionless, and no train in sight, and hearing no bell rung, she attempted to cross, when she was struck by the gates on their being lowered, she was not guilty of contributory negligence as a matter of law.

3. In an action for injuries, a requested instruction that plaintiff is presumed to have known what she could have seen by the exercise of ordinary and reasonable observation, was properly refused as a mere abstraction.

4. A person passing under railroad crossing gates, which were up at the time she started to cross, was not bound to continually watch the same as she was crossing, where no train was in sight, and no warning of any kind was given that the gates were about to be lowered.

5. A railroad crossing gateman was bound to assume that persons might be on the street when he was about to lower the gates, and hence a requested instruction that the railroad company had a right to lower the gates in order to block the crossing, and was not bound to anticipate that plaintiff would walk on the street under the gate, but had a right to presume that plaintiff would not do so, was properly refused.

6. Where a railroad crossing gate, the lowering of which caused plaintiff's injury, was operated by machinery, which could be stopped at any point in its descent, and there was evidence that people were in the habit of stepping upon the street and passing under the gate to reach a street car in the middle of the street near the gate, as plaintiff was about to do when injured, an instruction that if, when the gate was being lowered, plaintiff was not walking in the street under the gate, but was walking on the sidewalk, then defendant had a right to lower the gate, and presume that plaintiff would not walk under it, was properly refused.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by Ellen O'Keefe against the St. Louis & San Francisco Railroad Company. A judgment was rendered in favor of plaintiff, and defendant appeals. Affirmed.

L. F. Parker, J. G. Egan, and J. T. Woodruff, for appellant. A. R. Taylor and Gerald Griffin, for respondent.

Statement.

BLAND, P. J.

The general direction of Tower Grove avenue, in the city of St. Louis, is from north to south. It is crossed by three tracks of the St. Louis & San Francisco Railroad Company running east and west. These railroad tracks also cross Manchester avenue a short distance west of the Tower Grove crossing. The two avenues come together a short distance north of the railroad tracks, and there diverge. There are four crossing gates controlled and operated by the railroad company — two on Manchester avenue crossing, and two on Tower Grove avenue crossing, on either side of the tracks. South of the tracks of the St. Louis & San Francisco Railroad Company is a spur track belonging to the Missouri Pacific Railroad Company, and immediately south of this spur is the south gate on Tower Grove avenue. The four gates are controlled and operated from a gate tower situated near the intersection of Tower Grove and Manchester avenues, and north of the tracks about 110 feet. The gates are double — that is, they consist of two arms worked on a pivot by cogwheels — and when lowered cover the street from curb to curb, but do not cover the sidewalks. The arms stand upright, and are let down by the man in the tower turning a crank. It takes from three to five seconds to let them down to a horizontal position. In descending they describe about one-fourth of a circle, and when down reach to within three or four feet of the ground. Double street car tracks are laid in the center of Tower Grove avenue, over which electric cars are run by the St. Louis Transit Company. There is a granitoid sidewalk south of the railroad track on the east side of Tower Grove avenue. On October 5, 1903, the St. Louis & San Francisco Railroad Company made an excavation along the east side of Tower Grove avenue, just outside of the curb, for the purpose of connecting with a sewer to the south. The dirt from the excavation was thrown on the curb and sidewalk, and was piled up two or three feet high at the pivot of the south gate. Pedestrians going south on Tower Grove avenue usually cross the railroad tracks on the east side of the avenue, the west side being unprovided with suitable planking. On the day mentioned — October 5th — plaintiff was downtown, and to return to her home on Castleman avenue, south of the railroad tracks, took a car at Eighth and Market streets and got off at Tower Grove Station, as the car she was on could go no farther south owing to the breaking up of the street. Plaintiff, to go home, had to take a car on Tower Grove avenue traveling south, and to reach said car was obliged to cross the railroad tracks. She crossed on the east side of the avenue. When plaintiff reached the south gate, she testified the dirt from the excavation obstructed the sidewalk and she turned off, and walked diagonally across the street, in order to reach the car she intended to take. Just as she was under the gate, it was lowered, and the east arm struck her on the right shoulder, throwing her to the ground, and injuring her badly. She sued both the St. Louis & San Francisco and the Missouri Pacific Railroad Companies to recover for her injuries. At the trial she voluntarily dismissed her suit against the Missouri Pacific Railroad Company. The jury found in her favor against the St. Louis & San Francisco Railroad Company, and assessed her damages at $2,500. Defendant appealed.

Opinion.

1. At the close of plaintiff's evidence the defendant moved for a compulsory nonsuit. The court refused to grant...