Logan v. Chicago. B. & Q. R. Co

• Decision Date: 31 July 1923
• Docket Number: No. 23526.,23526.
• Parties: LOGAN v. CHICAGO. B. & Q. R. CO. et al.
• Court: Missouri Supreme Court

254 S.W. 705

300 Mo. 611

LOGAN v. CHICAGO. B. & Q. R. CO. et al.

No. 23526.

Supreme Court of Missouri, Division No. 1.

July 31, 1923.

Motion for Rehearing and Motion to Transfer to Court en Banc Denied October 5, 1923.

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

Action by Alice E. Logan against the Chicago, Burlington & Quincy Railroad and another. Judgment for plaintiff, and defendants appeal. Affirmed.

H. Nelson, of St. Joseph, and. George A. Mahan, Dulany Mahan, and Ezra T. Fuller, all of Hannibal, for appellants.

Rendlen & White, of Hannibal, for respondent.

SMALL, C.

I. Appeal from the Hannibal court of common pleas. Suit to recover damages for death of plaintiff's husband, John Logan, who was run over by a passenger train of defendant railroad company in charge of defendant Paradise on December 25, 1920, and who died from the effect of his injuries on December 28, 1920. The accident happened at the crossing of Maple avenue and Collier street, in the city of Hannibal. The deceased was traveling north on Maple avenue, and the train was going west over the railway tracks in Collier street, an east and west street, which intersected Maple avenue, a north and south street; at right angles.

The charges of negligence in the petition are that the automatic alarm bell at said crossing was inefficient and out of repair; that it would ring when no train was approaching, and would not ring or give warning when trains were approaching said crossing; that the train was operated at dangerous and unlawful rate of speed, to wit, at the rate of about 25 miles per hour; that the whistle was not sounded at least 80 rods from said crossing, and the bell on said locomotive was not kept ringing until said locomotive had crossed over said Maple avenue, and that defendants negligently failed to give any timely warning of the approach of said train; that said train was also run at a rate of speed in excess of 8 miles per hour, in violation of an ordinance of the city of Hannibal; that the deceased, as he approached and passed over said crossing, was unaware of the approaching train, and oblivious to the impending danger, which the railroad employees in charge of said train knew or could have known in the exercise of ordinary care; that said employees negligently failed to keep a lookout for automobiles moving over said crossing, or if they saw negligently failed to stop or attempt to stop or check the speed of said train, when they saw, or by the exercise of ordinary care could have seen, the decedent and the automobile in which the was riding in a position of peril, and by the exercise of due care could have stopped, or checked said train in time to have avoided striking and fatally injuring deceased; that said injuries were the direct result of the aforesaid negligence of the defendant company, and of defendant company's employees, including defendant Paradise, as engineer of said train,

The prayer of the petition was for $10;000 damages and for costs. The answer was a general denial and contributory negligence on the part of plaintiff's deceased husband, in that he drove immediately or front of a rapidly moving railroad train, without looking or listening for the approach of trains on said track, when by looking he could have seen, or by listening he could have heard, the approach of said train in time to have avoided the collision complained of. The reply was a general denial. The trial resulted in a verdict and judgment for the plaintiff in the sum of $10,000, from Which defendants appealed to this court.

The accident happened in broad daylight just after the noon hour, on Christmas Day, 1920. For many years the deceased, John Logan, operated a shoe factory at the southwest corner of Maple avenue and Collier street. Collier street ran west from the Union Station in Hannibal and the railroad tracks at the time of the injury and for many years before ran from the Union Station in and along Collier street westward to and beyond Maple avenue, which was a north and south street, about 11 blocks due west from said Union Station. Besides one main line of track, there were three other tracks running across Maple avenue, a side track and a spur track north of the main track, and a spur track south of the main track. Collier street was 60 feet wide from property line to property line, and Maple avenue was 50 feet wide. North of Collier street Maple avenue was formally dedicated by plat as a public street, but south of Collier street, while it does not seem to have been formally dedicated, a space 50 feet wide running south for many years was left opened and used as an extension of Maple avenue. The shoe factory at which deceased was manager was located on the southwest corner of Maple avenue and Collier street. His office was on the first floor, immediately on the southwest corner of Collier street and Maple avenue. The front wall of his office was on the south line of Collier street, and the east wall was on the west line of Maple avenue. The entrance to his office was on the Maple avenue side, about 9 feet south of the corner. The main part of the shoe factory building extended south several hundred feet on the west side of Maple avenue and was back about 10 or 12 feet from the west line of the street. The shoe factory was a one-story building. On the east side of Maple avenue, opposite the shoe factory, was the Hannibal Rubber Company's Building, which was a three-story structure. Its west wall was on the east line of Maple avenue, and its north wall was about 15 feet south of the south line of Collier street. The Garner Wood & Coal Company had a large frame building at the northeast corner, and the Hannibal Car Wheel & Foundry Company had their building at the northwest corner of Collier street and Maple avenue. At the time of the accident there was a box car standing on the spur track south of the main track, about 50 feet east of the east line of Maple avenue. The south line of this box car was about even with the south line of Collier street. About a block further east across Eleventh street there was a coal car standing on this spur track, and also, according to plaintiff's evidence, other cars still further east on said spur track. The south rail of the main track, on which the train was running, is 19 or 20 feet from the north wall of the shoe factory and 35 feet from the north wall of the Hannibal Rubber Company's building. The crossing at which the injury occurred was near the central business portion of the city, and was a very busy crossing, and much used by vehicles and pedestrians. The city by ordinance required the erection of an automatic electric bell or flagman at this crossing. The crossing was especially much used during the noon hour about the time the train passed, there being a number of factories in the immediate neighborhood, employing large numbers of people.

The engineer Paradise, in charge of the train, testified for defendant:

That when he took out this train, there were "usually people walking—a whole track of people—from the international Factory coming out, and, of course, I have to be careful." Plaintiff's evidence tended to show: That on the day of his injury the decedent had his Ford coupe parked on the east side of Maple avenue right at the entrance to his office. There was no glass opposite the driver's seat in this coupe, but there were windows in the doors, and also glass in front. It was an old coupe, in poor mechanical condition, and could not run over five miles an hour northward over this crossing. It was impossible to go over the crossing in this coupe on high; "you would have to use the low speed." The temperature was about 25 degrees above zero, and the car was hard to warm up. The grade approaching the crossing to within 2 feet of the south rail of the main track from the south for about 40 feet was about a 10 per cent. rise or up grade.

An ordinance of the city of Hannibal was introduced requiring the placing of an automatic electric bell at this crossing by the defendant railroad company "to give due and timely notice to all persons of the approach of trains." Such a bell had been installed in Collier street near the southeast corner of Maple avenue and Collier street for some time prior to the accident. Numerous witnesses testified for plaintiff that the bell was unreliable; that it would ring continuously for hours when no train was approaching. It was heard to ring for several hours after the accident in question. It had been known to ring nearly all day whether the trains were approaching or not. Plaintiff's evidence tended to show that the deceased was acquainted with the defective condition and and unreliable character of said automatic bell as a warning of the approach of trains. The Ford coupe was 11 feet long and 7½ feet high. Plaintiff's evidence as to the distance that the employees of defendant on the engine of the train in question could have seen the deceased approaching the crossing in his automobile was as follows: That the deceased could have been seen 20 feet south of the main line track by such employees looking by the northwest corner of the box car standing on the spur track of the rubber plant when they were down the track as far as Eleventh street, about 300 feet away; also when the deceased was 12 feet south of the track and they were between Tenth and Eleventh streets, or 400 or 500 feet east of the crossing. If the deceased was within two feet of the track he could have been seen by the man in charge of the train when 600 feet away. Plaintiff's evidence further tended to show that, in addition to the box car standing on the rubber company's spur track, there were other cars standing further east on the spur track which obstructed the view from the door of the office of the deceased in looking east between the said coal car and the north wall of the rubber company's building. Who office door at which deceased had parked...