Quigley v. Hines

• Decision Date: 19 December 1921
• Docket Number: No. 21705.,21705.
• Citation: 291 Mo. 23,235 S.W. 1050
• Parties: QUIGLEY v. HINES, Director General.
• Court: Missouri Supreme Court

235 S.W. 1050

291 Mo. 23

QUIGLEY v. HINES, Director General.

No. 21705.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Action by Elizabeth 3. Quigley, administratrix of James H. Quigley, deceased, against Walker D. Hines, Director General of Railroads, in charge of and operating the St. Louis Merchants' Bridge Terminal Railway Company and another. From a judgment for defendant, plaintiff appeals. Affirmed.

W. H. Douglass, of St. Louis, for appellant.

J. L. Howell and W. M. Hezel, both of St. Louis, for respondent.

JAMES T. BLAIR, C. J.

This is an action for damages for the death of James E. Quigley, who was struck and killed by a train operated by employés of respondent. At the close of appellant's evidence the trial court's rulings resulted in an involuntary nonsuit. The motion to set aside was overruled, and judgment entered accordingly. This appeal followed.

The railroad upon which Quigley was killed crossed the Mississippi river at St. Louis on the Merchants' bridge. There were two tracks. There were two approaches to the bridge from the west. One of these led to the northwest, and is called the Carrie avenue approach. The other led west and then curved to the south, and is called the Bremen avenue approach. This approach carried two tracks, and upon it the accident occurred. From the west end of the bridge the Bremen avenue approach consisted, for some distance, of trestle work. The fill upon which the tracks continued from the end of this trestle was about 30 feet high where it joined the trestle. The grade descended thence toward Bremen avenue. The top of this fill was broad. It carried two tracks. There was a space between these tracks which the witnesses say, and the photographs introduced by appellant show, was ample to permit a pedestrian to walk with safety between them when both tracks were occupied by moving trains. The evidence tended to show that employés of respondent had so used this approach in going to and from their work that it was respondent's duty to expect them upon it.

Quigley had been in railroad service for 32 years, and had served as a railroad engineer on the roads in question for 25 years. On the day he was killed he had been at work on the Dlinois side. His day's work done, he was on his way to his home in St. Louis. The train which struck him consisted of an engine and one car. Its function was to take employés to their work and, after that work was done, to their home side of the river. It was called the cab train. On this occasion it came from the Illinois side to the Missouri side. When it reached the bridge it was found that the north, or west-bound, track was occupied by a long freight train. The crew of the cab train were directed to proceed with their train across the bridge on the south, or eastbound track. This they did. The train reached the west end of the bridge. In doing so it passed the long freight train which occupied the north track. It then proceeded to the junction of the Carrie avenue and Bremen avenue approach. The testimony is that Quigley was at this point when the cab train was there. He proceeded down the approach, between the tracks. Subsequently the cab train started down the Bremen avenue approach, still on the southern or southeasterly track. The only crossover by which it might pass to the right-hand track was near Bremen avenue and somewhat beyond the point at which Quigley was struck. Quigley had reached a point several hundred feet ahead of the train before it left the Carrie avenue junction point. After leaving this point the train attained a speed of about 25 miles per hour. The tracks leave the bridge in a westerly direction and curve to the south. There is a steady curve which reaches its sharpest state at a point southwest of the place of injury. The employés operating the engine of the cab train, when about 200 feet from Quigley, observed him. The bell had been ringing and continued to ring. The engineer had commenced to slow down for the Bremen avenue stop. When he saw Quigley at the distance stated he began to give the danger signal. This was given until Quigley partly turned and looked toward the oncoming train and signaled to the engineer to "come on; everything is all right; everything is clear." The train's speed was still being gradually reduced for the contemplated stop, and had been cut down 7 or 8 miles per hour when the train reached a point a few feet behind Quigley. Suddenly, and when the train was about to pass him, Quigley left the path in which he was walking and stepped upon the track in front of the train and was immediately struck. There is no evidence that his danger, after he started to go upon the track, was, or could have been, seen in time to save him. The testimony was direct that Quigley was walking in such a place between the tracks that no danger to him was suggested to the train crew, and that he would have been in no danger if he had not suddenly stepped aside from that place and put himself in front of the train. The testimony is that while the other track was the one generally used for trains going in the direction in which the train which struck Quigley was moving, and while it was known as the "regular eastbound track," yet there was nothing unusual in the use of the "regular east-bound track" for west-bound trains; that it was customary so to use it when the regular west-bound track was occupied by another train (as in this case), or it was under repair or obstructed or not available for any reason; that it was customarily so used under such conditions; that it occurred frequently, and any railroad men who had been in the service "for any length of time" knew that was the manner of operation.

I. For the purpose of this appeal, respondent concedes that Quigley was walking along the approach at a place where employés frequently walked and should have been expected to have been found; that Quigley was then in respondent's service and that both were at the time...