Poehler v. Lonsdale, 24933.

• Decision Date: 06 June 1939
• Docket Number: No. 24933.,24933.
• Citation: 129 S.W.2d 59
• Parties: POEHLER v. LONSDALE et al.
• Court: Missouri Court of Appeals

129 S.W.2d 59

POEHLER v. LONSDALE et al.

No. 24933.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Rehearing Denied June 20, 1939.

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

Action by Edward F. Poehler against John G. Lonsdale and another, trustees in bankruptcy of St. Louis-San Francisco Railway Company, for injuries received by plaintiff when his automobile struck a coal car obstructing a highway crossing. Judgment for plaintiff on a verdict in the sum of $1,896, and the defendants appeal.

Affirmed.

J. W. Jamison, A. P. Stewart, and C. H. Skinker, Jr., all of St. Louis, for appellants.

Joseph N. Hassett and Vernon L. Turner, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision of his automobile with a coal car in defendants' train.

The trial, with a jury, resulted in a verdict and judgment for plaintiff for $1,896, and defendants appeal.

Error is assigned by defendants here for the refusal of their instruction in the nature of a demurrer to the evidence. The assignment is put on the grounds, (1) that the evidence as to defendants' negligence was insufficient to take the case to the jury, and (2) that under the evidence most favorable to plaintiff, and under the physical facts in the case, plaintiff was guilty of contributory negligence as a matter of law.

The collision occurred between one and two o'clock a. m. on December 15, 1934, at the intersection of the railway tracks, which run north and south, with Gravois Road, which runs east and west, in St. Louis County. Plaintiff was driving his model A Ford coupe east on Gravois Road. Miss Venita Nelson was riding in the coupe with him.

Concerning the collision and the attendant circumstances plaintiff testified as follows: "There was a fine mist and dense fog. I could see ahead down the pavement about twenty feet, according to the light shining. I was driving east along Gravois Road on the south side of the pavement, and all at once I struck a train. As I came east on Gravois Road I was driving about twenty miles an hour. I drove about the same speed all the time. I could see the pavement about twenty to twenty-five feet ahead. I ran right on the railroad crossing without any warning. I was not familiar with the highway prior to the accident. I did not know I was approaching a railroad crossing as I was driving eastward. I did not know there was a railroad crossing that crossed there. There was nothing to attract my attention that I was going across a railroad crossing. I had my window half way lowered. Miss Nelson's window was up. I did not hear any noise of any kind as I drove along there. I did not hear any railroad whistle nor engine whistle, nor any railroad bell or engine bell. There were no lights there. I was looking ahead watching the pavement and watching ahead. There was no lights of any kind as I came over there to the crossing. I did not see anything on the crossing. The first time I knew anything about this train is when I woke up in the hospital that morning around 8:30 or 9 o'clock. I never at any time saw any obstruction in the road. The headlights on my car were in good condition. I had recently put in a new battery. The headlights worked off the battery. On an ordinary night when there is no fog on mist I imagine my lights would show about 30 to 35 feet down the pavement, and with the mist and dense fog I could see 20 to 25 feet ahead of me. Going 20 miles an hour I judge I could stop my car in 20 to 25 feet. I did not see the freight train nor the freight car on the crossing. I did not slow up my car any prior to colliding with the freight car. It was not raining; there was just a mist and dense fog. My lights were focused on the pavement about 20 to 25 feet ahead of me. The dense fog kept me from seeing the freight car. I could see the pavement all right, so far as my lights were shining, 20 to 25 feet, but straight ahead it was just dark, couldn't see into the fog. The main beam of my headlight was focused on the pavement, and the fog kept the light from reflecting back, that is, I couldn't see this freight car because of the fog. The headlights on my car were the ones that came with it. I had my headlights turned on bright that night, and they were focused down on the pavement about 20 or 25 feet ahead of me."

Venita Nelson testified as follows: "We were driving that night about 20 miles an hour. There was a fog in Gravois Road. I could see about 20 or 25 feet ahead of me, that is, I could see the beam of the headlight on the pavement, could not see any surrounding objects. I could see the pavement. I saw nothing across the road. I was looking ahead and listening. I did not hear any whistle or bell or noise of any kind. I had no warning of any kind that we were about to run into anything. We were driving along at about twenty miles an hour, everything normal, and then the lights went out. The first I remember about this accident was about five weeks later. I was unconscious that long. The headlights were in good condition so far as I could tell. There was a dense fog at the time of the accident. Just prior to the collision I was looking ahead. There were no lights of any kind ahead that I could see. I did not know we were coming to a crossing. There were no lights of any kind ahead. The only lights around there were the lights on the automobile. I did not see anything to indicate that we were coming to a railroad crossing or coming to a train across the crossing."

All the witnesses agreed that the night was dark and cloudy, though the trainmen stated there was no fog.

The evidence shows that Gravois Road was a four-lane road paved with concrete and was about fifty feet wide. It carried a vast amount of vehicular traffic. It was one of the main arteries of travel leading into the City of St. Louis, and was designated and known as highway 30. It was a direct cutoff from South St. Louis to U. S. highway 66 and 67. The railroad crossing where the collision occurred was just a few miles from the St. Louis city limits. There were no gates or signal lights or bells of any kind at the crossing. There was a wooden crossarm on the north side of the highway about twelve feet west of the tracks and about ten feet north of the north curb of the highway. There was no light on it. There was not any crossarm or warning signal of any kind at the intersection on the south side of the road. There was no light of any kind to light up the intersection or the train or cars standing across the intersection. There was a little shanty for the watchman at the southeast corner of the intersection. The railroad tracks were level with the concrete pavement, and there was nothing about the construction of the tracks to indicate their presence to a traveler approaching them from the west. The pavement was level and smooth across the tracks. For a distance of about three hundred feet there was no grade approaching the tracks from the west, the pavement being practically level west of the tracks for that distance. The pavement was light. There was evidence of a state highway sign up on the road three hundred to six hundred feet west of the intersection showing a cross with red buttons, located in a ditch at the side of the road about ten feet south of the curb. It was about three feet high and below the level of the pavement. A deputy sheriff testified that no stranger going over the road approaching the railroad tracks from the west would know that the railroad tracks were there, "unless he noticed this road sign, which very few people noticed." Plaintiff testified that he did not see it. The deputy sheriff further testified that this was a dangerous crossing, and that ordinarily there was a heavy vehicular traffic over this highway all day long and continuing up to three o'clock in the morning. He also stated that if one were not familiar with the road he would not know that there was a railroad track there, that there was nothing there to indicate to the traveler that he was coming to a railroad crossing. One of defendants' witnesses testified as to the heavy traffic passing over this crossing, stating that it came from both ways "like a swarm of bees."

The freight car with which plaintiff's automobile collided was a coal car loaded with coal. The car was painted black. Prior to the collision the locomotive had proceeded north over the crossing and had stopped. The coal car was the fourth car from the locomotive. It was thirty-six feet long, inside measure. It was standing across the pavement, the front trucks to the north of the center line of the pavement and the rear trucks at the south edge of the pavement. The bottom of the coal car was three to three and one-half feet above the pavement, and slightly lower than the height of the top of the hood of the coupe. So that there was nothing between the trucks underneath the coal car to obstruct the beams from the headlights of the coupe as it approached the coal car. After the collision the hood of the coupe was wedged under the coal car partwise, three or four feet south of the front trucks, that is, between the front and rear trucks. The coupe was partly towards the center of the road but still on the south side of the center of the road. The whole front part of the coupe was damaged. The top of the hood was crushed back almost to the windshield.

The defendants' watchman was on duty at the time of the collision. He was to the east of the train, with his lanterns, one red and one white. He was to the north of the center of the highway, and was so positioned with respect to the train that his lights were not visible to plaintiff as he approached the crossing.

All of the testimony of the train crew shows that the bell of the locomotive was shut off after it crossed over the highway, and that the bell was not rung nor the whistle sounded after the locomotive passed over...