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

• Decision Date: 08 September 1958
• Docket Number: No. 2,No. 45864,45864,2
• Citation: 315 S.W.2d 699
• Parties: Alfred KELLY, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Respondent
• Court: Missouri Supreme Court

Page 699

315 S.W.2d 699

Alfred KELLY, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Respondent.

No. 45864.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1958.

Rexford H. Caruthers, Shulamith Simon, William R. Kirby, Alexander M. Goodman, St. Louis, for appellant.

George P. Mueller, Evans & Dixon, John P. Montrey, St. Louis, for respondent.

LEEDY, Judge.

Action for $35,000 damages for personal injuries alleged to have been sustained by plaintiff when the automobile in which he was riding as a guest of the driver-owner was struck by defendant's Diesel switch engine (and cut of cars) at a public crossing in the City of St. Louis. Verdict and judgment went for defendant, and, after an unavailing motion for new trial, plaintiff appealed. The points briefed relate to the giving of defendant's sole cause instruction, the admissibility of certain evidence, and the closing argument of defendant's counsel.

Plaintiff submitted his case upon hypotheses of both primary negligence (in failing to sound a warning by blowing the whistle or ringing the bell, and in failing to have a headlight burning), and humanitarian negligence (in failnig to stop). At defendant's request the court gave instruction No. 7, which hypothesized the negligence of the driver of the automobile as the 'sole, only and direct cause' of the collision. Plaintiff asserts that this constituted error, contending, first, that the evidence adduced by defendant did not present a situation in which the defense of sole cause was available (because affirmatively showing humanitarian negligence on defendant's part); and, secondly, that the form of the instruction was bad for the reason it did not negative the humanitarian negligence pleaded and submitted by plaintiff. While not conceding error in the giving of this instruction, the defendant says that, in any event, plaintiff could not have been prejudiced by it because there was no believable evidence that defendant's train could have been stopped after the automobile went into a position of discoverable peril, and hence plaintiff did not make out his case of humanitarian negligence predicated upon failure to stop.

The casualty occurred about 8:30 P.M., December 24, 1951 (Christmas Eve) at the intersection of East Prairie and McKissock, public streets in the City of St. Louis. East Prairie runs east and west, McKissock north and south. Two sets of railroad tracks run north and south either on, or alongside, McKissock. The westernmost of these is for southbound traffic; the other for northbound traffic. (The precise width of neither street appears; only that they are narrow. One witness described McKissock as no wider than 15 feet. This, we take it, has reference to the traveled portion, i. e., between the track on which the collision occurred and the west boundary of the street.) The motor car in question was a 2-door 1948 Plymouth in which there were three persons, all riding in the front seat: Ploch, the driver-owner; plaintiff, Kelly, who was in the center, and Edward Fitzgibbons, who was seated on the extreme right. Weatherwise, it was sleeting and raining--'a freezing drizzle.' The streets were slippery. There was a little restaurant at the northwest corner of the intersection on (or in front of) which there was a lighted electric sign displaying the word 'Eat.' Plaintiff claimed that this sign, under the existing weather conditions, had the effect of creating a 'curtain of darkness' to the north of East Prairie. There was a street light at the southwest corner of the intersection, and another on McKissock north of the crossing, but this one, too, was said by plaintiff's witnesses to have been not visible because of the aforesaid 'curtain.' Ploch's car, in which plaintiff was riding, was proceeding east on East Prairie, and defendant's switch engine was moving south. The collision occurred on the westernmost of the two sets of railroad tracks at the intersection. The Diesel was backing with either one or two cars attached on the north end. (Plaintiff's proof showed both.) In any event, one car was a load of livestock; the other, if any, was a caboose. The cab was at the rear (or southernmost) portion of the engine. Four members of the crew were riding in the cab; the other was on the north end, on the outside, and from where he was riding he did not have a view of the crossing. There are crossing gates at the crossing, but they are operated only in daytime, and not at night. The driver was familiar with the crossing, having previously traveled the street many times. (On the issue of primary negligence--not presently involved--plaintiff's evidence was to the effect that before the collision no whistle was blown, no bell was rung, and the engine did not have its headlight turned on, nor were there any lights on inside the cab. In fact, one of plaintiff's witnesses said that a member of the switching crew stated at the scene that they 'run like that all the time'--without a headlight, without sounding the bell, and without blowing the whistle. Defendant's evidence was directly and positively to the contrary.)

The essence of the proof offered by plaintiff touching the issue of his position of imminent peril appears from the following excerpts from his statement of facts: As the Ploch car approached McKissock it was going no more than 5 to 10 miles an hour, and Ploch stopped a little distance back [west] from the tracks, 12 feet or something like that. It came to a complete stop. The plaintiff and Ploch looked to the north and looked to the south and did not see or hear anything. The car was stopped about even with the little restaurant across the street on the corner. Neither plaintiff nor Ploch could see more than 25 or 30 feet to the left or north. It was very dark in that direction. There was a light on the northwest corner, an electric sign for the restaurant, and it was on that night, and as one looked it was just like a black wall, a dark curtain setting there. As one looked to the left, one could not see any light or anything through that black wall to the north. Neither Ploch nor the plaintiff saw any object moving toward them from the north going south. After looking to the left and to the right, Ploch saw nothing and started to go across.

As Ploch started up he was going slowly, some 3 to 5 miles an hour, 2 to 3. (He had no trouble in starting up because of the ice.) The first time he saw the train or engine was when it came out of the darkness. At that time his front wheels were between the rails of the westernmost set of tracks. The engine was then about 20 feet away. Ploch was unable to estimate the speed of the train because the accident happened too fast. Plaintiff testified Ploch stopped 'about the length of a car' from the tracks; that he [plaintiff] looked to the north and to the south, and didn't see anything, or hear anything; that Ploch 'started up, he put it in gear, and started up slowly; we was just in the middle of it. The car took us onto the tracks, and the next thing I knew something hit us.' He further testified that from the time Ploch started up an automobile length from the track it would take 'maybe a second or two, you would be up on the tracks;' that when the accident happened the automobile 'couldn't have been going very fast; he was going slow;' witness could not estimate the speed in miles. (The engine struck the car just behind the hood and fender and front door. After the impact the car was carried down the tracks about a half a block, according to plaintiff's witness. The three passengers were bouncing around hitting the sides.)

The evidence introduced by plaintiff is devoid of any showing or effort to show the distance in which the train could have been stopped, and there were no circumstances from which present ability on the part of defendant to have timely stopped might have been inferred, so that the submission of that issue is not supported by any evidence appearing in plaintiff's own case, and defendant's motion for a directed verdict should have been sustained, unless plaintiff is correct in his contention that a submissible case of humanitarian negligence affirmatively appears from the testimony of certain of defendant's witnesses. The evidence as to the speed of the train becomes important in resolving this latter question. The only testimony in relation to that subject consisted of estimates by members of the crew. Those expressing an opinion thereon (including the engineer, on whose testimony as to stopping distance the plaintiff relies) were unanimous in estimating the speed of the train as it proceeded south on McKissock toward the crossing as being 15 to 20 miles per hour. It is unnecessary to...