Lang v. St. Louis-San Francisco Ry. Co.

• Decision Date: 08 November 1954
• Docket Number: No. 44013,No. 2,LOUIS-SAN,44013,2
• Citation: 273 S.W.2d 270,364 Mo. 1147
• Parties: Conrad LANG (Plaintiff), Respondent, v. ST.FRANCISCO RAILWAY COMPANY, a Corporation (Defendant), Appellant. . Division
• Court: Missouri Supreme Court

Page 270

273 S.W.2d 270

364 Mo. 1147

Conrad LANG (Plaintiff), Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation (Defendant), Appellant.

No. 44013.

Supreme Court of Missouri. Division No. 2.

Nov. 8, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 13, 1954.

James L. Homire, C. H. Skinker, Jr., Ernest D. Grinnell, Jr., St. Louis, for appellant.

Correnti, McKee & Rosenblum and Richard D. Fitzgibbon, Jr., St. Louis, for respondent.

BARRETT, Commissioner.

On October 2, 1951, about eight o'clock in the evening, the plaintiff, Conrad Lang, was struck by the Frisco's westbound passenger train, the 'Meteor,' as he walked across the railroad's tracks at Fourth and Pacific Streets in Pacific. To recover damages for his resulting personal injuries Mr. Lang instituted this action against the railroad, and he has recovered a judgment for $18,359. His right to recover was submitted upon the hypothesis that the railroad was negligent in that as he walked across the tracks he was oblivous of the train's approach, came into a position of imminent peril and danger of being struck by the train, that the engineer saw or should have seen him, realized that he was oblivious and in peril, and, thereafter, by the exercise of ordinary care 'could have slackened the speed of his said train and stopped the same' and thereby have avoided hitting him.

At the time of his injury Mr. Lang was sixty-seven years of age and had a cataract over his left eye. He had worked for a dairy for five years, feeding cattle, cleaning the barn, and doing general farm work, at a salary of $12 a week. He lived in his own home with his sister-in-law on Pacific Street, a short distance from the crossing. He was uneducated, had gone as far as the third or fourth grade in school. One of the doctors, in describing Mr.Lang when he first saw him on October 9th, said that he was negativistic, uncooperative, didn't want to talk and 'was sort of a sour apple to deal with.' He had lived in the neighborhood of the crossing for years but was unable to give much information of value as to the facts of the occurrence. He came home from work, ate supper and sometime near eight o'clock 'turned around and went to go back down, you know, to get some tobacco, and that is when I got hit there.' Pacific is an east and west street and he walked down the south side of the street to Fourth Street and the tracks, crossed to the north side of Pacific and proceeded east across Fourth Street and the walkway over the tracks. There were the usual 'crossbuck' warning signs and an overhead street light at the crossing. He heard no signals, saw no lights and did not look to the north or east as he crossed the tracks and did not see or hear the oncoming train. Whether counsel's questions, his own or the railroad's counsel, related to distances or places, he insisted on repeating that he was struck on the last or fourth track, 'when I was just getting ready to get off this last rail.' Often he simply did not answer the questions. But he was struck on his left side, the engineer said, by 'the left side of the pilot' or engine, and knocked off the track to the east, four to six feet east of the crossing.

While it is said that the 'Meteor' was a westbound train the fact of the matter is that Fourth Street is a north and south street and Pacific is an east and west street, and they intersect at right angles. The railroad tracks enter Pacific from the northeast and pass through this street intersection from the northeast on a long, sweeping curve ('2500 foot radius') to the southwest. There are four sets of tracks in the intersection, the fourth or easternmost track being the main line track upon which Mr. Lang was struck. Available accurate data, distances, and measurements are not given, but the distance between the rails on each set of tracks, as is well known, is four feet eight and one-half inches. The railroad does not question the plaintiff's evidence that the easternmost track is 15.3 feet from the next track to the west, and that track, in turn, is 16 feet from the next track, whch in its turn is 13.3 feet from the westernmost track. Likewise, it is not disputed that the distance from the second or outside rail of the easternmost track across the walkway to the second or inside rail of the westernmost track is 42 feet five inches. From the first rail of the second set of tracks to the outside rail of the easternmost set of tracks the distance is 29 feet.

The 'Meteor' was a thirteen-car train with a two-unit Diesel locomotive. The train was traveling at a speed of 25 miles an hour as it entered the city limits with the bell ringing and its two headlights, one a stationary light, the other an automatic oscillating light, burning, and from his position in the right side of the cab the engineer could see 'about ninety degrees to the left.' The engineer had used the air brakes before reaching Pacific and they were in good operating condition. As the train approached the crossing the engineer saw Mr. Lang, 'he was coming off the second track to the right, which would be the west track, coming over the east rail of the second track to the right when I first noticed him.' He said that Mr. Lang was walking at a reasonable rate of speed, 'He was in no hurry,' and if he ever looked towards the train the engineer did not notice the fact. At that moment the engineer was sounding the 'crossing whistle' and as Mr. Lang 'started over, I would say the north rail of the track next to us,' walking at about the same rate 'and when he seemed to get close enough that he wouldn't stop or wasn't going to stop,' he gave a 'stop alarm or warning signal,' immediately 'started a full service application' and the train stopped on the crossing.

The railroad contends that the plaintiff's uncontradicted evidence, by which he is bound (the testimony of the engineer and fireman), shows conclusively that the engineer did everything within his power to stop the train or slacken its speed as soon as it reasonably appeared that Mr. Lang was oblivious to the danger of the oncoming train. It is urged that there is no evidence of a distance separating the train and Mr. Lang when he came into a position of peril, that his evidence 'either fails or it shows a distance so short that the train could not have stopped' and, therefore, the plaintiff failed to make a submissible case under the humanitarian doctrine. In this connection it is urged that the court prejudicially erred in giving instruction number one for the reason that it was confusing, failed to guide the jury in determining the issuable fact of imminent peril, and extended the zone of peril to a place where it did not exist under the plaintiff's own evidence, to all four sets of the tracks. Also in this connection. it is urged that the testimony of the plaintiff's expert witness that the train could have been stopped in 178 feet is so contrary to physical fact and the observation and experience of mankind that it must be disregarded and that without his testimony there is no evidence that the engineer could have averted the accident after Mr. Lang came into a position of peril.

The difficulty with the appellant's argument, in part, is that it ignores or fails to take into consideration the force of the three essentially distinguishing factors involved in this particular occurrence and appeal. In part the argument ignores the evidence and reasonable inferences with respect to Mr. Lang's obliviousness. The defendant's liability was submitted and hypothesized upon a finding of ability, in the circumstances, to slacken the speed of the train as well as upon ability to stop. And in all these respects the argument overlooks the probative force of what, undeniably, the engineer actually did and what as a matter of incontestable physical fact actually happened with respect to the train.

Whatever the distance from the intersection of Pacific Street and the westernmost track, Mr. Lang, in crossing over the walkway, walked across three sets of tracks and the space between them and was struck on the fourth or easternmost set of tracks by the left side of the pilot when he 'was just getting ready to get off this last rail.' He was 'in no hurry,' 'just walking,' at a normal rate of speed, two to three miles an hour or 2.9 to 4.4 feet a second. Wofford v. St. Louis Public Serv. Co., Mo., 252 S.W.2d 529, 531; Rosenberg v. Terminal R. R. Ass'n, Mo., 159 S.W.2d 633, 635. Bearing upon Mr. Lang's obliviousness, the engineer, as noted, said that he saw him crossing over the east rail of the second track to his right, a point 28 feet 11 1/4 inches from the center line of the easternmost track, and that when he seemed to get close enough that he 'wouldn't stop or wasn't going to,' just over the left rail of the next track, a point 17.66 feet from the center line of the east track, he gave the emergency alarm and set the brakes. The inference that appellant would have drawn from these circumstances is that this was the precise moment at which Mr. Lang's obliviousness reasonably appeared to the engineer. It is not necessary to consider whether other inferences were reasonably permissible from these facts alone because there were other circumstances. The fireman said that when he first saw Mr. Lang, 'He was in the vicinity between the first and second track. * * *

'Q. You mean the second rail of the first track and the first rail of the second track? A. That's right. * * *

'Q. What was he doing when you first saw him? A. Just walking.

'Q. Was he looking at the train? A. No, he wasn't.

'Q. Was nay whistle being sounded when you first saw Mr. Lang? A. When I first saw him the regular crossing whistle was being sounded.

'Q. What happened after the time? A. Well, it was evident he was going to keep walking, and the alarm whistle was sounded.

'Q. Where was Mr. Lang when the alarm whistle was first sounded? A. I would say probably...