Lawrence v. St. Louis & H. R. Co.

• Decision Date: 08 November 1923
• Docket Number: No. 17983.,17983.
• Citation: 258 S.W. 54
• Court: Missouri Court of Appeals
• Parties: LAWRENCE v. ST. LOUIS & H. R. CO.

258 S.W. 54

LAWRENCE v. ST. LOUIS & H. R. CO.

No. 17983.

St. Louis Court of Appeals. Missouri.

November 8, 1923.

Rehearing Denied December 22, 1923.

Appeal from Hannibal Court of Common Pleas; Charles T. Hays, Judge.

"Not to be officially published."

Action by Jean Lawrence against the St. Louis & Hannibal Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R.L. Sutton, of St. Louis, Mahan & Mahan, of Hannibal, Grover C. Houston, of Troy, and Hostetter & Haley, of Bowling Green, for appellant.

E. H. Pollard, of Ft. Madison, Iowa, Eby & Hulse and Berryman Henwood, all of Hannibal, and Matson & Cowherd, of Louisiana, Mo., for respondent.

DAVIS, C.

Action for damages for personal injuries sustained in a collision at a railroad crossing, in which a freight car collided with an automobile in which plaintiff was riding. Verdict and judgment for $500 in the Hannibal court of common pleas. Defendant appeals.

Inasmuch as the sole question in this case relates to the refusal of the trial court to give an instruction the nature of a demurrer to the evidence, we herewith set out the facts:

The testimony for plaintiff tends to show that plaintiff, as a guest of her niece, Mrs. Stoeckle, residing, respectively, in Hannibal and Ft. Madison, Iowa, were returning home from an automobile trip to St. Louis. As plaintiff was unable to drive an automobile, the Buick at the time of the collision, as well as throughout the journey, was driven by Mrs. Stoeckle. On reaching Auburn, a village in the northern part of Lincoln county, 90 or 100 miles from St. Louis, Mrs. Stoeckle took the wrong road, failing to discover the error until a toll gate was reached a mile or so east of Silex, a village of some 300 inhabitants. With the exception of Eli elevator, a fertilizer house, and a few other small buildings, Silex lies west of the railroad tracks, which run in a northern and southern direction to the east of the village. Finding, upon inquiry at the toll gate, that they had taken the wrong road and were near Silex, and being hungry, they concluded to go to Silex for lunch, and later to return to Auburn to continue their journey homewards. Silex is located in the lowlands. On approaching it from the east, the highway descends from the hills. About 317 feet northeast of the crossing where the collision occurred is a bridge over a creek. About 250 feet northeast of the bridge, as one approaches Silex from the east, the highway makes a turn and runs in a southwesterly direction to a point 247 feet southwest of the bridge, when it again turns almost due west and crosses defendant's railroad switch track about 70 feet west of the latter turn, with the main track 44 feet west of the switch track. It is about 623 feet from the apex of the switch track on the north to the crossing where the collision occurred. Abutting the highway on the north is au elevator, which is 5 feet east of the switch track, and abutting it on the south is a fertilizer house, also 5 feet east of the switch track. Defendant's plat, admitted in evidence, shows the following dimensions: An open porch adjoining the elevator on the south, supported by posts, with a roof over it, and extending along the south side, is 12 feet wide. From the porch to the traveled part of the highway is 48 feet. The traveled part of the highway is 12 feet wide. From the south line of the traveled part of the highway to the fertilizer house is 12 feet. The combined distances from the elevator to the fertilizer house totals 84 feet. These measurements were made by the county engineer in May, 1921. The collision occurred August 8, 1918. Plaintiff's photographic Exhibit 3 and defendant's photographic Exhibits 3 and 5 seem to show a telegraph pole 5 or 6 feet south of the west post that supports the porch.

As they had never been over this highway before, both plaintiff and Mrs. Stoeckle stated that, as they proceeded, they were going slowly, watching the rough highway, and that they did not know of the presence of the tracks, until shortly' before approaching them. Almost immediately thereafter the automobile was brought to a stop 30 or 40 feet east of the switch track, and on starting again they went slowly and carefully. As they started across they were watching all the time, and there was nothing between them and the box car to prevent them from seeing it start and move; but they did not see it moving `until the front tires of the automobile were over the rail of the switch track, and then the oar was almost on them. When the automobile stopped 30 or 40 feet from the switch track, the view to the north was obstructed by the elevator, and partially by the porch, by a pile of lumber south of the porch, and by a wagon between them and the porch. On stopping, they looked towards the right or north, and saw a box car on the switch track protruding from the side of the elevator. Just how far the box car protruded from the side of the elevator, and what portion of the road the automobile took in crossing the tracks, cannot be determined with exactness. Plaintiff and Mrs. Stoeckle state that the box car was out far enough to easily see in the door. Mrs. Stoeckle testified:

"Q. Well, at that time you say that was a freight car, railroad car, protruding south of the south end of the right-hand warehouse building? A. Yes. Q. You could see that, couldn't you? A. Yes. Q. That was on the side track? A. Yes. Q. You could see it? A. Yes. Q. And it was not moving, you say? A. No. Q. And you say it extended about half the length of the car south of the elevator? A. The lumber pile. Q. The lumber pile was right at the south end of the elevator, wasn't it? A. Yes. Q. It did not come over—not over—fourth of the way to obstruct the whole opening there, did it? A. Came far enough to see into the door from the road. Q. It was still, and make probably three-fourths or seven-eighths of the opening between the two warehouses, between the warehouse, or part protruding out? A. Yes. Q. About seven-eighths, you think? A. No; I would say half way between half the crossing and the warehouse. Q. Half way between half of the crossing and the warehouse? A. Yes. Q. That is, the south end of the freight car? A. Yes, sir. Q. You know that traveled track, where you make that crossing, is on the south side, or nearer the building that you were pushed into, as you say, wasn't it? A. It seemed to me track seemed to be nearer the middle of it, not nearer the other building."

Plaintiff testified as follows:

"Now, what I want you to tell the jury, how far in feet would this protruding car have to be pushed south before it would reach the point where that buggy is? A. I should think about three-fourths of a car length; it extended little bit more than this; this goes clear across. Q. You said it extended about half way, and placed it about where the post that supports the awning? A. I said extended beyond this (indicating). meant this pole. I saw the door through the posts the opening. Q. Tell the jury now how far that still car, stationary car, would have to be moved south before it would reach a point there where that buggy is in the road? A. Well, I can't say, because that was not our situation."

She also testified:

"It moved from the post to the middle of the road; that is where it hit us."

Clark Duncan, a witness for plaintiff, testified that, while on the bridge, the view of the railroad side track and main track was obstructed by scattering trees, feed barn, stock pens, elevators, and office, and was quite sure by a field of corn. He heard no bell or whistle, or saw anybody on top of train; that the box car was standing still.

The evidence further tended to show that Mrs. Stoeckle, the driver of the Buick automobile, had been driving a car for about four years frequently, and that she had made several trips to Chicago and back from Ft. Madison, Iowa, a distance of about 250 miles, on one occasion of which, at least, plaintiff accompanied her. She was accustomed to drive the car frequently within a radius of 50 miles from Ft. Madison, never prior to this time having had an accident.

Defendant's evidence tended to show that the train, which backed across the highway and collided with the automobile in which plaintiff was riding, arrived at the town of Silex about noon, and was at that time switching cars preparatory to assembling the train for further transportation; that it had theretofore proceeded to a point on the side track about 600 feet north of the crossing, and was slowly backing at the rate of about 4 miles an hour, with its hell automatically ringing; that the conductor was on the top of the car that struck plaintiff, and when he saw the...