Knight v. Wabash Ry. Co.

• Decision Date: 09 July 1935
• Docket Number: 32928,32929
• Citation: 85 S.W.2d 392
• Parties: KNIGHT v. WABASH RY. CO. et al
• Court: Missouri Supreme Court

85 S.W.2d 392

KNIGHT v. WABASH RY. CO. et al

Nos. 32928, 32929

Supreme Court of Missouri, First Division

July 9, 1935

Rehearing Overruled July 30, 1935.

Homer Hall and Woodward & Evans, all of St. Louis, for appellant Wabash Ry. Co.

T. M Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis for appellant St. Louis Merchants Bridge Terminal R. Co.

Everett Hullverson and Mason & Flynn, all of St. Louis, for respondent.

OPINION

HAYS Judge.

Action for personal injuries. Verdict for $ 20,000 reduced by remittitur to $ 12,000. From a judgment for the latter sum, the defendants have appealed. Appellant St. Louis Merchants Bridge Terminal Railroad Company was impleaded as a codefendant on account of its joint liability with appellant Wabash Railway Company, as lessor of the latter company, under our 'lease or user' statute.

Respondent was struck and injured by a locomotive of the Wabash Company drawing a passenger train over the Terminal Company's tracks along Main street in the city of St. Louis. The petition upon which the case was tried charged several grounds of negligence, among them one pleaded as follows: 'That the defendants, their agents and servants and operators in charge of and operating said locomotive and train, saw or by the exercise of ordinary care could have seen the plaintiff in imminent peril of being struck and injured by said locomotive and train in time thereafter for the said operators, by the exercise of ordinary care, with the means and appliances at hand, and with reasonable safety to persons on said locomotive and train. to have sounded a warning of its approach, * * * and thus and thereby have avoided striking and injuring plaintiff, but negligently failed to do so.'

The case was submitted to the jury upon the humanitarian doctrine alone under plaintiff's instruction which hypothesized the matters as stated above and a counter instruction given at the instance of the defendants. The primary and possibly decisive question for determination is whether the evidence was sufficient to justify the submission of the case to the jury over appellants' demurrers to the evidence offered at the close of all the evidence.

The accident occurred on the morning of April 22, 1930, between 7:30 and 8 o'clock on a railroad crossing located near the east side of Main, a north and south street, and at a point midway between Ashley and Biddle, both being east and west streets. The crossing is laid over tracks 2 and 3. Its length north and south does not appear. It leads eastward to the opening of a private driveway located midway of the block, and serving the Booth Cold Storage building. This building had its entrance and also a loading platform on the driveway and extended from the driveway to Ashley street on the north. Alongside of and serving this building, as well as the building located on the opposite or south side of the driveway and known as the Missouri Bag building, was a spur track referred to in the evidence as track No. 1 (viewed from the east). The crossing was laid over the next two tracks only, both being main tracks; that portion of the street being unpaved. It was upon track No. 2 that respondent met with her injury. Next west of track No. 3 is a switching track, No. 4, and next to that is a loading track, No. 5, which last serves properties on the west side of Main street. On the west side of Main there was no opening between Ashley street on the north and Biddle on the south. So the mode of approach to the Booth building by pedestrians and vehicles coming from west to Main was to enter thereon at Biddle street.

From the crossing in question both main tracks 3 and 2 are straight and parallel for several blocks northward. There is a block signal bridge at Biddle street, south of Ashley. This block between Biddle and Ashley is 300 feet long. Engines and trains of cars operating on the Terminal Company's tracks were at all times directed and governed in this locality by an 'interlocking system'; and inbound and outbound traffic on the main tracks, and the shifting of traffic thereon from one to the other, is determined by the Terminal's management and not otherwise. The Wabash train was a regular daily passenger train running from Detroit to St. Louis. It was running on schedule time. It was, on proper block signal, soon to go around and take precedence of a C. & E. I. freight train. It had done so a half dozen times in the next preceding ninety days.

Respondent's destination was the Booth building, in which she had been working for some three months and in certain seasons of the year before for several months. Her time of beginning work was 8 o'clock in the morning, and she usually arrived at this crossing at or shortly before that hour. The crossing was maintained by the Terminal Company. It was designed for vehicles and persons to cross in going into and out of a driveway located at the south end of the Booth building, and was a very busy crossing. The approach to it was from west to east, as indicated. The respondent, with two other women who worked at the same place, on the morning in question came walking north along the west side of Main street from Biddle street. When they reached a point on the west side of Main street about the middle of the block, they were approximately opposite said driveway and were on the west side of the fifth track from the east. There they waited several minutes until a C. B. & Q. train then upon the track cleared it and enabled them to pass over. After passing over, they next passed over the fourth track, which was unoccupied. On track 3 there was a C. & E. I. freight train, consisting of engine, tender, and twenty-seven box cars, moving very slowly toward said crossing to permit the Wabash passenger train to pass and soon take precedence on track 3 according to practice, and the C. & E. I. to do some switching beyond Biddle. The engine and tender of the freight train were proceeding backward; the tender being to the south. We now state the testimony of the witnesses for the respondent, in substance mostly, as to what subsequently occurred.

The respondent testified that while on track No. 4 she looked north but her view was obscured by said freight train on track 3. She heard no bells or whistles. She and her two companions hesitated at track 3. The tender of the freight train was about 17 feet from the crossing. She looked to the north to see if the freight train thereon was going to come on across. She testified: 'It just came to a standstill. He (the fireman) waved at us and we started on. I started across. I crossed the track and I looked to the south. I stepped across the track, I heard a scream and I turned to look behind me and this train struck me, coming from the north on the second track from the east. I saw the train at no time before it struck me. I had stepped on the rail. I was struck on the left side and back and rendered unconscious.' During the two months previous, respondent had not, so she said, observed any south-bound train operated on track 2 around 7:45 in the morning.

One of her companions, Mrs. Fenton, testified that she looked to the north when she was about 'middleways' of track 3, but her view to the north was entirely obscured by the freight train coming in on track 3 with the tender in front; that, as they started across track 3, the freight train 'was about 20 feet from us and moving slowly.' She said she never did see the Wabash train until just as it struck respondent. She was about 2 feet behind respondent, walking very slowly. She said that the respondent, when struck, 'was just ready to step on that track that the passenger was coming in on.'

Mrs. Farmer, the third one of the party, testified: 'As I started to cross the third track I seen this freight engine and it had a long string of cars behind it and was moving. I started across over this track and when I got about to the east rail of the third track I looked to the north and didn't see any train coming, and I was walking all the time very slowly, and just as I got to the west rail of the second track I looked to the north and I heard a sizzing sound of the wind or whatever it was that attracted my attention. I looked up and seen that train coming, and I screamed and jumped back just in time to keep from getting hit. When I first saw it it was right in front of me to my side, practically at the crossing. Mrs. Knight was to my right just a little ahead of me, maybe a step or two. When I had looked north before that I could see almost to Ashley street.' She heard no sound or warning, except 'the occasional dingle as they were switching there.'

On cross-examination, she said:

'When I started over the third track the tender was about 15 or 20 feet from me I imagine, and moving very slowly toward me. Well, I can't just judge, perhaps five miles an hour.

'Q. Now, when you got to the east rail of the third track, then was when you looked to the north? A. Yes.

'Q. Didn't this tender and the overhang of the tender keep you from seeing to the north? A. I couldn't see all the way to Ashley street, no.

'Q. You could not see to Ashley street? A. Not all the way, no. I could see almost half way, though.

'Q. Well, from the point where you were to Ashley street is only about 150 feet, isn't it? A. I guess about that.

'Q. So if you could only see half way, you could only see about 75 feet? A. Yes.

'Q. As a matter of fact, you couldn't even see up the second track, all you could see was about 75 feet up the first track, the one over there next to the Booth Cold Storage plant? A. Well, as I remember it, there was cars parked there -- I mean trains.

'Q. You mean boxcars? A. Yes.

'Q. You don't mean parking, you mean boxcars standing on that track? A. Yes.

'Q. ...