Riddell v. Missouri Pac. R. Co.
| Decision Date | 14 March 1927 |
| Docket Number | No. 25878.,25878. |
| Citation | 292 S.W. 710 |
| Parties | RIDDELL v. MISSOURI PAC. R. CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
Action by Thomas Riddell against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.
James F. Green and Thomas J. Cole, both of St. Louis, for appellant.
Foristel, Mudd, Hezel & Habenicht, of St. Louis, for respondent.
The plaintiff, while working as a switchman in the switchyards used by four different railroad companies at East St. Louis, Ill., was struck and injured by one of the defendant's locomotive engines, and for the injuries so sustained he recovered judgment in the circuit court of the city of St. Louis, Mo., for damages in the sum of 820,000, and the defendant appealed.
The facts, as stated by appellant's counsel, are: The plaintiff, Thomas Riddell, on March 24, 1923, was in the employ of the St. Louis Merchants' Bridge Terminal Railway Company as foreman of a switching crew. He had been in the same employ and doing the same work and in the same territory since 1920. His work was known as industry switching; that is, plaoing empty cars in the yards of the industries for them to load and taking out cars which had been loaded. His territory was all in East St. Louis, Ill., beginning at the Madison yards, which is in the north part of East St. Louis, and extending south to Valley Junction, which are in the south part of East St. Louis. The tracks over which he operated were owned by the Illinois Transfer Railway Company, but were operated by the St. Louis Merchants' Bridge Terminal Railway Company, by which company he was employed.
The crew of which he was the foreman consisted of himself, a fireman, an engineer, a head switchman, and a rear switchman. The two switchmen were commonly known as helpers. His position as foreman was a good deal like a conductor on a road train. Plaintiff's crew was composed of the following other men: Freddie Groh, engineer; Joseph Meyers, fireman; Edward Cresap, rear switchman; and Al Worthem, head switchman.
There were two main lines they worked over with switches to different industries located along those two lines. Those two main lines were parallel, and, generally speaking, they ran north and south. The main line track on the west side was commonly known as the south-bound track, and the east track was usually and customarily used for northbound traffic.
Plaintiff and his crew commenced work at 9 o'clock in the morning, going south on the south-bound track, and, after completing all switching on the south-bound track they started north on the other of the two main line tracks—the east track. Before entering the north-bound track they received a signal giving them the right to do so. This signal was operated by an employed of the St. Louis, Merchants' Bridge Terminal Railway Company, who was located in a tower at Valley Junction. They then went north to the Terminal elevator property, which was on the east side of the two main line tracks, and a switch track led from the north-bound track into the yards of the. Terminal Elevator Company. Before going into the Terminal Elevator Company's yards they left the cars they were pulling on the main north-bound track and took the engine alone into the elevator yards. They coupled up the eight or ten cars which were on the elevator switch track and started out of the elevator yards. The pilot end of their engine was attached to the cars, and the tank end was preceding as they came out of the elevator company's switch. Plaintiff was on the fourth or fifth car from the engine as they came out of the switch. He was standing in the stirrup and holding with his hands to the rungs of the ladder on the side of the car. Just about the instant he reached the switch points he stepped off, presumably for the purpose of throwing the switch so his train could back up on the main track and get the cars they had left there before they entered the elevator switch. At the time plaintiff stepped off the car, he was facing north, and did not look at any time toward the south. If he had looked south he could have seen a train approaching for a mile; the track being practically straight there for at least a mile.
Plaintiff testified that he did not know what happened after he stepped off, that he did not know whether he took any steps or not, but the testimony of other witnesses, both plaintiff's and defendant's, shows that plaintiff, after alighting, took from three to seven rapid steps to the north and west, which brought him close enough to the west track to be struck by the engine of defendant's train which was then being operated northwardly over the so-called south-bound track. When plaintiff stepped off his train the Missouri Pacific engine was then about 60 or 80 feet from him.
The train which struck plaintiff was a regular Missouri Pacific passenger and employe's train, called by railroad men "The Bum." This train and other Missouri Pacific trains, as well as trains of other roads, were regularly operated over the two main line tracks heretofore referred to, and this train was due to pass the point of the accident just about the time it did pass. This was known to plaintiff, as well as to the other members of his crew. The plaintiff also knew that this train which struck him often ran north over the so-called south-bound track.
Several doctors testified to the extent of plaintiff's injuries, and the plaintiff also testified on that subject. Briefly they tended to prove the allegations of the petition in that regard.
Over the objection and exception of defendant's counsel, testimony was introduced to show that the custom of the operator of the tower at Valley Junction was to hold plaintiff's train at Valley Junction until after the "Bum" train had proceeded northwardly, in case plaintiff's train reached Valley Junction at about the time the "Bum" train was due.
One of plaintiff's witnesses estimated the speed at which defendant's train was traveling when it struck plaintiff at 30 to 35 miles per hour. Plaintiff's only other witness on this subject said it was 20 or 25 miles per hour. Defendant's witnesses said about 10 miles per hour.
At the time of the accident, the engine attached to defendant's train was backing up— that is, the tank end was preceding—and plaintiff was struck by the rear end of the tank. Neither the engineer nor the fireman saw the plaintiff, and were not aware of the accident until they were told of it when they stopped at Bond street.
Plaintiff's witnesses testified they heard a whistle but did not hear a bell ringing. Defendant's witnesses testified the bell was ringing automatically all the way from Valley Junction to Bond street. There was a clearance of about 4 feet and 9 inches between the trains.
Respondent's counsel concede that the foregoing statement "fairly covers the vital facts as viewed from appellant's standpoint," but they call attention to portions of the evidence which they deem important.
The petition counts upon the humanitarian doctrine; negligence is averred in running the defendant's train north on the west track at a negligently high rate of speed after plaintiff had received a signal to run north on the east track; that the west track was ordinarily used by south-bound trains; that plaintiff was unaware of the movement of defendant's train northward on said west track; that defendant's trainmen saw or by the exercise of ordinary care would have seen plaintiff in a position of peril in time to have avoided striking him, but they negligently failed to warn him or check the speed of the train; that said train was negligently operated at a high rate of speed in excess of 10 miles per hour and without sounding the bell or whistle, in violation of certain ordinances pleaded.
The amended answer pleads plaintiff's contributory negligence in entering upon defendant's track...
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