Little v. Manufacturers Ry. Co.
| Decision Date | 03 January 1939 |
| Docket Number | No. 24693.,24693. |
| Citation | 123 S.W.2d 220 |
| Parties | LITTLE v. MANUFACTURERS RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.
"Not to be published in State Reports."
Action by Silas Little against the Manufacturers Railway Company to recover for personal injuries. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment reversed, and cause remanded.
Nagel, Kirby, Orrick & Shepley and Dwight D. Ingamells, all of St. Louis, for appellant.
John T. Sluggett, Jr., of St. Louis, for respondent.
SUTTON, Commissioner.
This is an action for personal injuries sustained by plaintiff arising out of a collision of defendant's railway locomotive or tender with a motor truck parked on the west side of South Second Street, in the City of St. Louis. The collision occurred on July 25, 1936, about 7:30 in the evening, at what is known as No. 1529 South Second Street. The truck was parked at an angle facing towards the southeast with the right rear wheel against the curb and the rear of the body extending over the sidewalk. Plaintiff at the time of the collision was at the rear end of the truck unloading kindling and putting it into the basement of his home through the basement window. The rear of the body of the truck was just a few feet from the window. The house was right up against the sidewalk. The front end of the truck was on or near the defendant's railroad track. Defendant's locomotive running backwards and pulling a train of freight cars approached the truck from the north. It was running at a speed of about six miles per hour. The engineer operating the locomotive was seated on the left or west side of the cab of the locomotive facing the front. The fireman was on the east side of the cab.
The engineer testified that he saw the truck when the locomotive was still three hundred feet away from the truck; that the truck appeared to be close, but he thought it would clear; that the footboard of the locomotive tank extended about ten inches west of the west rail of the track; that when the locomotive got back up near the truck he could see that the truck extended within about eight inches of the rail; that he was about twenty feet from the truck when he applied the brakes, and the locomotive proceeded about four feet after it struck the truck; that he stopped the train as quick as it could be stopped after he saw that the locomotive would not clear the truck; that he did not see plaintiff at any time before the collision, but saw a man named Roland at the rear of the truck; that the first time he saw the truck he noticed that there was kindling wood in it; that when he saw Roland at the rear of the truck he had some kindling in his hands putting it in the basement window.
The foreman of the switching crew, however, testified that when he saw the truck after the collision it looked like the footboard of the locomotive had caught the front wheel of the truck.
Plaintiff was not the owner, nor the driver, of the truck, and he did not park it. The truck was owned by Roland, who hauled kindling in the truck to plaintiff's home. Roland and plaintiff were unloading the kindling at the time of the collision.
The evidence shows that there was no obstruction to prevent the engineer from seeing the truck or the plaintiff unloading kindling from the truck as the locomotive approached the truck. When the locomotive collided with the truck, the impact threw or pushed the truck against plaintiff and injured him.
Plaintiff testified:
The engineer testified that all the time the locomotive was moving south on Second Street the air bell was ringing continuously; that it was handled by compressed air; that when once the air is turned on it continues on and rings continuously until it is turned off; that he turned it on when he started back about two blocks away from the truck.
Plaintiff introduced in evidence an ordinance of the City of St. Louis, which provides that when any cars or locomotives propelled by steam power are moving within the limits of the city the bell on the engine shall be constantly sounded.
The engineer testified that it was "going to get dusk" at the time of the collision, but that he was able to see the truck and persons on or near the track without the aid of artificial light.
The petition charges negligence on the part of defendant (1) in failing to stop the locomotive before it collided with the truck, and (2) in failing to constantly sound the bell as required by the ordinance of the City.
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