Moore v. Hines

• Decision Date: 02 May 1922
• Docket Number: No. 17001.,17001.
• Citation: 210 Mo. App. 181,241 S.W. 457
• Parties: MOORE v. HINES, Director General of Railroads.
• Court: Missouri Court of Appeals

241 S.W. 457

210 Mo. App. 181

MOORE v. HINES, Director General of Railroads.

No. 17001.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Rehearing Denied June 6, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Thadeus B. Moore against Walker D. Hines, Director General of Railroads. From judgment for plaintiff, defendant appeals. Affirmed.

J. L. Howell and W. M. Bezel, both of St. Louis, for appellant.

Thomas B. Crews and Walter Naylor Davis, both of St. Louis, for respondent.

BIGGS, C.

Plaintiff sues Walker D. Hines, Director General of Railroads, in charge of and operating St. Louis Merchants' Bridge Terminal Railway, for personal injuries and Property damage arising out of a collision between the plaintiff's automobile truck and a locomotive engine operated by defendant at a public crossing in the city of St. Louis. By a stipulation in this court James C. Davis, successor to Walker D. Hines as such director, entered his appearance herein and was substituted as defendant appellant.

Bremen avenue, a public street running east and west, crosses Hall street, another public thoroughfare running north and south. On Hall street and crossing Bremen avenue were six railroad tracks operated by the defendant. Beginning with the east of these tracks they may be numbered for the purposes of the case as numbers 1, 2, 3, 4, 5, and 6. Track No. 6 or the west track was termed a "team track," and curved sharply to the west from the crossing. The defendant maintained a crossing gate on both sides of the tracks, which gates were operated by a watchman stationed in a tower to the east of the 6 tracks, from which tower the watchman had a view to the north and south along the tracks and also to the east and west along Bremen avenue. These gates, as was customary, were opened and closed on the approach of trains or engines. The tracks were of the usual standard gauge, having a space of 4 feet 8 inches between the rails.

There was a distance of 7 or 8 feet between each track.

Plaintiff charges, that on August 15, 1618, he was driving his loaded automobile truck easterwardly or, Bremen avenue; that as he approached near the intersection of street, where said tracks and gates were maintained by defendant, and had approached to within 100 feet of said gates, which were then lowered, the said gates were negligently and carelessly raised or opened by the defendant, and that the plaintiff following another automobile which had been waiting to pass eastwardly along said Bremen avenue over said tracks, proceeded along Bremen avenue over the defendant's tracks, and while so doing a locomotive engine negligently operated by the defendant ran into and struck plaintiff's truck, resulting in personal injuries to the plaintiff and damages to his said truck. It is further chr.rged that the view of the approaching engine was obstructed by objects, and that plaintiff did not see or hear the approaching engine so as to stop and avoid it striking him until too late to do so; that the engineer in charge of said engine could, by the exercise of ordinary care, have seen the plaintiff and his automobile as aforesaid, in time to have avoided striking plaintiff, but that the defendant, through its agents and servants, negligently failed to so look ahead and avoid striking plaintiff's automobile; that the said defendant, by and through its employees in the control and operation of said engine negligently failed to ring the bell upon said engine, or to sound a whistle, or in any other manner to give warning to the plaintiff of the movements of said engine and the approach of same to said Bremen avenue, over which the plaintiff at that time was driving.

The answer in addition to a general denial, contained a plea of negligence Oil the part of the plaintiff in driving his automobile upon the track directly in front of, or in close and dangerous proximity to, an approaching engine, and a further plea of negligence in driving the automobile upon the track without looking or listening for the approach of the engine, when by looking he could have seen, or by listening he could have heard, said engine in time to have remained off of the track and avoided the collision.

Upon a trial there was a verdict and judgment for plaintiff for the sum of 64,625, from which defendant has appealed, claiming principally that its demurrer to the evidence should have been sustained, it being contended that the evidence convicted plaintiff of contributory negligence as a matter of law. Error is also assigned in the giving of instructions, and a claim is made that the verdict is excessive.

Plaintiff, a man 65 years of age, residing at Labadie, Mo., engaged in the business of general hauling and trucking, was, at the Plaintiff further said that, when he first saw the engine, it could not have been more than 12 or 15 feet from him, and at that time the front of his automobile was not more than 7 or 8 feet from the point of lin. pact. It appeared from plaintiff's testimony that this other truck was about 10 feet high, with side curtains, and was about 15 feet long, and that at the time plaintiff did not hear any bell ringing or whistle sounded on the engine.

Another witness for plaintiff, who was driving the other truck, testified that the accident happened on the fourth track groin the west and that the box cars were standing on the second track north of Bremen avenue; that, when he reached the second track on which the box cars were standing to the north of Bremen avenue, the engine at that time was about 100 feet north; that he stopped because he saw the engine approaching ; that he did not hear any bell or other warning given by the engine, and that he did not know whether the bell was ringing or not. He testified that the engine at that time was running at the rate of 6 or 8 miles an hour, and ran about 20 or 25 feet after the collision; that he did not know how fast plaintiff's truck was going as it passed him, as he didn't see it until it collided with the locomotive. This witness further testified that the gates were up and that he started across the track; that the box cars kept him from seeing the engine until he got to a point to the east of the box cars, where be then stopped because he had observed the approach of the engine from the north, and that he didn't remember hearing any bell or other warning.

A rule seems to be well established in these gate crossing cases. In Yonkers v. Railroad, 182 Mo. App. 558, loc. cit. 568, 168 S. W. 301, loc. cit. 309, it is stated thus:

"The fact that the gates were maintained, and that they were open at this particular time, necessarily constituted an invitation to one to pass upon and over the defendant's tracks. It was essentially an assurance to plaintiff, driving upon the street, that no danger need be feared from an approaching train. While it may be true that she was not so far relieved of the duty to look and listen that she could go blindly and heedlessly upon the tracks, relying wholly upon the...