Philippi v. New York, C. & St. L. R. Co.

• Decision Date: 06 February 1940
• Docket Number: No. 25210.,25210.
• Citation: 136 S.W.2d 339
• Court: Missouri Court of Appeals
• Parties: PHILIPPI v. NEW YORK, C. & ST. L. R. CO.

136 S.W.2d 339

PHILIPPI v. NEW YORK, C. & ST. L. R. CO.

No. 25210.

St. Louis Court of Appeals. Missouri.

February 6, 1940.

As modified on Denial of Rehearing February 20, 1940.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be reported in State Reports."

Action by Julia Philippi, administratrix of the estate of Robert Philippi, deceased, against the New York, Chicago & St. Louis Railroad Company to recover for the death of deceased when a truck in which he was riding was struck by defendant's train. From a judgment for plaintiff, both defendant and plaintiff appeal.

Affirmed.

Jones, Hocker, Gladney & Grand and Web A. Welker, all of St. Louis, for appellant.

B. Sherman Landau, of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is an action for damages instituted by Julia Philippi, an Illinois administratrix of the estate of Robert Philippi, who was killed about 7:30 A. M. on December 9, 1937, on a grade crossing of the defendant Nickel Plate Railroad about 1½ miles southwest of Alhambra, Illinois. Robert Philippi was 21 years old and employed by Wolf Brothers to collect milk from farmers living in the neighborhood. He and Arthur Wolf together used a light truck. They alternated in driving. When last seen on the morning of December 9, 1937, 1½ miles north of the crossing, Arthur Wolf was driving and Robert Philippi was loading milk cans.

On starting out in the morning the truck was loaded with empty milk cans. As full cans of milk were picked up at various stops, they would leave a like number of empty cans. The route they traveled was about fifteen or eighteen miles long, and they made about twenty or thirty stops. They had been on the route several months and crossed the same grade crossing of the Nickel Plate near the same time each morning.

The highway ran north and south. The railroad ran in a northeasterly and southwesterly direction and crossed the highway at an angle of fifty-seven degrees and fifty-seven minutes, so that a train approaching the crossing from the northeast came from the left and the rear of a motorist traveling south toward the crossing. The county road was twenty-five feet wide and depressed 1½ feet below the level of the surrounding fields. The train came through a cut with an embankment on the sides thereof, as it approached the crossing. To the east of the roadway was a hedge which had in former years been cut to a height of five feet but had thereafter been allowed to grow out again so that the old growth was more dense than the new growth. The hedge extended north for a distance of about 250 feet from the north edge of defendant's right of way; it was located in a field adjoining the right of way. The top of the thick portion of the hedge was 6½ feet above the roadway. The cab of the truck in which the men were seated was lower than the top of the thick portion of the hedge, but the body of the truck extended three feet above the top of the cab. As the truck approached the crossing it was traveling about ten or twelve miles an hour, the train was traveling fifty miles an hour. The engineer saw the truck before the train reached the whistling post, 1,320 feet northeast from the crossing. The truck was then behind the hedge and continued toward the crossing without increasing or decreasing its speed. When the truck drove into the right of way and it became manifest to the engineer that the driver was going to cross the track the engine was 150 feet from the crossing and the engineer made a service application of the brakes. The speed of the train was not decreased but continued traveling fifty miles an hour and struck the left rear corner of the truck after the rear wheels of the truck had completely cleared the rails of the track. The impact occurred on the rear three feet of the body of the truck.

The pleadings are not questioned, hence there is no reason for setting them out in full. The petition alleged that decedent was in the exercise of ordinary care for his own safety, and the case went to the jury on the alleged negligence of the defendant, in that it failed to slacken the speed of the train; and that immediately prior to the time of the collision decedent was in a position of imminent peril and danger and was oblivious thereof, and, that defendant saw him in such a position in time thereafter, by the exercise of ordinary care, to have checked the speed of the train, and have avoided the accident, but negligently failed to do so; and, on defendant's answer denying negligence on its part, and a plea of contributory negligence.

The case was tried before a jury and a verdict was returned in favor of plaintiff for $5,000. Both plaintiff and defendant, after the overruling of their respective motions for new trial, have appealed, the plaintiff limiting her appeal to the inadequacy of the verdict and judgment as to amount.

The accident out of which this case has arisen occurred in the State of Illinois, and, therefore, is to be determined in accordance with the laws of that state. Cox v. Terminal Railroad Ass'n, 331 Mo. 910, 55 S.W.2d 685. And it is the law of Illinois, and has been so held in a number of cases, that in order to recover it is incumbent on plaintiff, in a personal injury case, to allege and prove that he was exercising ordinary care for his own safety at the time of the accident, and if death results and the administrator sues, the plaintiff must prove that the deceased was in the exercise of ordinary care for his own safety. Greenstreet v. Atchison, T. & S. F. R. Co., 234 Ill.App. 339; Dambacher v. Ill. Central R. Co., 288 Ill.App. 457, 6 N. E.2d 226; Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651; Opp v. Pryor, 294 Ill. 538, 128 N.E. 580. However, this requirement does not have to be met with all of the strictness contended for by defendant. "Ordinary care" or "due care and caution" are relative terms, and what the law requires to constitute ordinary care or due care and caution in any particular case must necessarily depend upon all of the conditions and circumstances surrounding the person at the time he is called upon to act. What might be ordinary care under one state of facts might fail to be ordinary care under a different state of facts, and usually it is a question of fact for the jury as to whether the injured party or the decedent was in the exercise of ordinary care. This is the rule both in our own state and in Illinois. Hence, whether a decedent looked and listened, or whether he stopped, before crossing a railroad track are proper matters for the jury to consider in determining whether he was using ordinary care for his own safety, but if he failed to stop or to look and listen, it does not necessarily follow that he was guilty of negligence as a matter of law, or that he was not exercising ordinary care for his own safety. These statements of the law as applied in Illinois are borne out by many cases in that state, among which are: Illinois Central Railroad Co. v. Nowicki, 148 Ill. 29, 35 N.E. 358; Baltimore & O. S. R. Co. v. Then, 159 Ill. 535, 42 N.E. 971; Cleveland, C., C. & St. L. R. Co. v. Oliver, 83 Ill.App. 64; Elgin, J. & E. R. Co. v. Hoadley, 122 Ill.App. 165; Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104, 86 N.E. 712; Cook v. Chicago, R. I. & P. Ry. Co., 153 Ill.App. 596; Elgin, J. & E. R. Co. v. Lawlor, 229 Ill. 621, 82 N.E. 407; Winn v. Cleveland, C., C. & St. L. R. Co., 239 Ill. 132, 87 N.E. 954; Chicago & A. R. Co. v. Pulliam, 111 Ill.App. 305; Douglas v. Wabash R. Co., 149 Ill.App. 612; Storm v. Cleveland, C., C. & St. L. R. Co., 156 Ill. App. 88; Henry v. Cleveland, C., C. & St. L. R. Co., 236 Ill. 219, 86 N.E. 231; Rosenthal v. Chicago & A. R. Co., 255 Ill. 552, 99 N.E. 672; Terre Haute & I. R. Co. v. Voelker, 129 Ill. 540, 22 N.E. 20; Cleveland, C., C. & St. L. R. Co. v. Henry, 143 Ill.App. 265; Watts v. Wabash R. Co., 219 Ill.App. 549; Eggert v. Pennsylvania Co., 189 Ill.App. 58, 59; De Scheppers v. Chicago, R. I. & P. Ry. Co., 179 Ill.App. 298; Illinois Central R. Co. v. Slater, 139 Ill. 190, 28 N.E. 830; Chicago & E. I. R. Co. v. Schmitz, 211 Ill. 446, 71 N.E. 1050; Pocho v. Illinois Terminal R. Co., 210 Ill. App. 598; Hamman v. Ill. Central R. Co., 188 Ill.App. 414; Fowler v. Chicago & E. I. R. Co., 234 Ill. 619, 85 N.E. 298.

Therefore, the first question in this case to determine is, under all of the facts and circumstances did plaintiff make out a submissible case by proving that decedent was in the exercise of ordinary care at the time of the accident? We are not to pass on the weight of the evidence; that was a question for the jury and the trial court. The question before this court on appeal is whether there was substantial evidence to support the finding of the jury and the trial court that decedent did exercise ordinary care.

Decedent was a young man, nearing twenty-two years of age; he had a regular job; he performed his work regularly, day after day, and on schedule time and was in the performance of that work at the time of the accident; he was physically able to load and unload the truck with cans filled with milk and weighing from ninety to one-hundred and twelve pounds each. From these facts and the circumstances surrounding the accident the jury might well assume that he possessed the natural instincts of self-preservation. Illinois Central R. Co. v. Nowicki, 148 Ill. 29, 35 N.E. 358. As he proceeded along the road, with Wolf driving the truck, he would be on the right hand side, the side away from the direction a train would approach from; the truck was traveling south towards the crossing, and the train was approaching the crossing from northeast to southwest, so that either Wolf or Philippi in order to see an approaching train would have to look over his left shoulder and towards the rear. The road they traveled was worn, and depressed about 1½ feet, which would place their heads about 4½ feet above the general ground level when...