Roeslein v. Chicago & E. I. R. Co.

• Decision Date: 13 September 1948
• Docket Number: No. 40425.,40425.
• Citation: 214 S.W.2d 13
• Court: Missouri Supreme Court
• Parties: ROESLEIN v. CHICAGO & E. I. R. CO. et al.

214 S.W.2d 13

ROESLEIN v. CHICAGO & E. I. R. CO. et al.

No. 40425.

Supreme Court of Missouri, Division No. 2.

September 13, 1948.

Motion for Rehearing or to Transfer to Court in Banc Denied October 11, 1948.

Appeal from St. Louis Circuit Court, Division No. 14; William B. Flynn, Judge.

Action by George Roeslein against the Chicago & Eastern Illinois Railroad Company, a corporation, and the Terminal Railroad Association of St. Louis, a corporation, for injuries allegedly sustained by plaintiff when his automobile was struck by a train of the Chicago & Eastern Illinois Railroad Company, a corporation, on the tracks of the Terminal Railroad Association of St. Louis, a corporation. The jury returned a verdict for both defendants. From an order granting the plaintiff a new trial, the defendants appeal.

Order reversed and cause remanded with directions to reinstate verdict and judgment for defendants.

Jones, Hocker, Gladney & Grand and Lon Hocker, Jr., all of St. Louis (C. M. Roddewig, of Chicago, Ill., of counsel), for appellant Chicago & E. I. R. Co.

Warner Fuller, William A. Thie, and Arnot L. Sheppard, all of St. Louis, for appellant Terminal R. Ass'n of St. Louis.

Charles L. Moore, N. Murry Edwards, Ninian M. Edwards, Jr. and Abraham Davis, all of St. Louis, for respondent.

LEEDY, Judge.

This is an action against Chicago & Eastern Illinois Railroad Company (hereinafter referred to as C. & E. I.), and Terminal Railroad Association of St. Louis (hereinafter referred to as Terminal) to recover $65,000.00 damages for personal injuries alleged to have been suffered by plaintiff when struck by a C. & E. I. train (on Terminal's tracks) at a public street crossing in the City of St. Louis at which Terminal maintained a crossing watchman. The jury returned a verdict for both defendants. The trial court sustained plaintiff's motion for a new trial on the sole ground that error was committed in excluding certain ordinances of the City of St. Louis. Defendants appeal from the order granting the new trial.

No extended statement of the facts is necessary to an understanding of the issues presented on this appeal. The casualty occurred at a point where Destrehan Street crosses four railroad tracks which run along Hall Street, a north and south street. Destrehan runs east and west, and intersects Hall and the tracks at right angles. According to plaintiff's evidence, he was proceeding west on Destrehan, driving a 1932 Pontiac sedan, at about 6:45 A.M., on April 19, 1946, and as he approached the eastern-most (or No. 1) track, he saw a Diesel switch engine moving north on that track, and so he stopped his car at a point approximately 15 feet east of said No. 1 track. At that time Nored, Terminal's crossing watchman, was standing about in the center of Destrehan and east of the No. 1 track in front of plaintiff's car; in other words, between the automobile and the crossing. The watchman had a "stop sign" in his hand, which he held up. When the Diesel had passed, the watchman dropped his sign, waved it to the west for plaintiff to cross, and then returned to his shanty which was located to the south of Destrehan. As plaintiff proceeded west, in accordance with the watchman's signal, and was crossing No. 3 track, he was struck by a C. & E. I. train, the watchman not having at any time warned him of the approach thereof. The automobile was struck on the right side about the middle. It would have cleared if he could have traveled about 8 feet more. When struck plaintiff was traveling at a rate of 5 to 6 miles per hour in low gear — he had not shifted after starting up 15 feet east of No. 1 track. In that interval he had traveled a distance of 57 feet. By his own estimate he could have stopped the car in 10 or 12 feet. Plaintiff first testified that he did not see the train before it struck him. Later on he stated that when he "looked up" (as the front end of his car was "entering onto the track where the train was coming"), he saw it; it was then 30 or 35 feet to the north of him. He testified he heard no whistle or bell sounded by the C. & E. I. train.

Defendants' evidence sharply contradicted that of plaintiff. It was shown by several of their witnesses that the crossing watchman flagged for the Diesel from the west side of the crossing, and not from the east, as testified by plaintiff. It was further made to appear that as the Diesel cleared the street, it became apparent to the watchman that plaintiff was going to attempt to cross, and would not have time to get over on account of the approaching south-bound C. & E. I. train; the watchman was then west of No. 3 track, at which time he "speeded up his gait," and proceeded eastward (in front of the C. & E. I. train) across No. 3 track (the train being then 100 to 150 feet away) to a point near the west rail of No. 2 track, and held up his "stop sign" and waved his hand at the plaintiff to stop, and also shouted to him to stop, saying, "God damn it, man, stop. Here comes a passenger." Plaintiff gave no indication that he heard the warning, but proceeded on and was struck.

Plaintiff did not try his case upon the theory that Terminal was responsible for the conduct of C. & E. I., but went to the jury against each defendant upon a separate ground of negligence; the submission against C. & E. I. was predicated upon a violation of the humanitarian doctrine, and that against Terminal as for the negligent failure of its crossing watchman to adequately warn.

The ordinances, for supposed error in the exclusion of which the trial court ordered a new trial, are §§ 2207, 2211, Art. XIV, Revised Code of the City of St. Louis, 1936, reading, respectively, as follows:

"Sec. 2207. Gates at crossing required — watchman. — Every person, association, or corporation running or operating engines or cars propelled by steam power upon its railroad track or tracks, along or across any street, avenue, or road in the City of St. Louis, which is now, or which may hereafter be, used for wagon travel, shall erect at all cross or intersecting streets, avenues, or roads to be used, or which may hereafter be used, a gate or gates made of wood or iron or other suitable material, and unless said gates are opened and closed automatically, such person, association or corporation shall keep a watchman to operate said gate or gates, who shall close the same immediately before the passage of any engine, car or train of cars, and open the same immediately after such passage. Such gate or gates shall be so erected on such improved streets, avenues, or roads within thirty days after such person, association or corporation shall be notified so to do by the director of streets and sewers of the city. Provided, however, that this article shall not apply to any cross or intersecting avenue, streets or roads that are now or may hereafter be bridged over and across the railroad tracks; and provided, further, that this article shall not apply to any cross or intersecting streets, avenues, or roads on which are laid tracks used exclusively for switching purposes, or for switch tracks (R.C. sec. 2175)."

"Sec. 2211. Rate of Speed. — It shall not be lawful within the limits of the city for any person, association, or corporation to run any engine, car, or train of cars propelled by steam power at a rate of speed exceeding six miles per hour over, along or across any cross or intersecting improved street, avenue, or road which is now or may hereafter be used for wagon travel, if such person, association, or corporation shall have failed to comply with a notice from the director of streets and sewers specified in section 2207; but after compliance therewith it shall be lawful for any person, association, or corporation to run its engines, cars or train of cars at a rate of speed not exceeding twenty miles per hour (R.C. sec. 2178a)."

There was no proof whatever of any notification by the director of streets and sewers to protect the Destrehan Street crossing under § 2207, nor of any failure within 30 days after such notification to make the installation of such gate or gates. Consequently defendants urge that there was no showing on which to base a violation of § 2211 (the latter providing it "shall not be lawful * * * to run * * * at a rate of speed exceeding six miles per hour * * * if such * * * corporation * * * shall have failed to comply with a notice from the director of streets specified in section 2207"); that without the occurrence of the contingency (the giving of notice) the ordinances were inoperative as to the crossing in question, and so were properly excluded when offered. On the other hand, plaintiff argues that no proof of notification was necessary; that § 2211 limits the speed of steam propelled trains to six miles per hour until the railroad constructs and maintains a crossing gate, after which they are permitted to operate trains at 20 miles an hour. Plaintiff relies on Graney v. St. Louis, I. M. & S. Ry. Co., 140 Mo. 89, 41 S.W. 246, 38 L. R.A. 633, as so holding. The negligence charged in that case was a violation of an ordinance (§ 25, Art. 4, Chap. 31, Revised Ordinances, St. Louis) reading: "It shall not be lawful within the limits of the city of St. Louis for any car, cars or locomotives propelled by steam to run at a rate of speed exceeding six miles per hour." It was the railroad's contention that such ordinance, although in force at the date of the accident, had been repealed by another ordinance, a section of which appears to have been the forerunner of present § 2211. The accident occurred in 1891, and the court, construing the several ordinances before it in that particular case, held that the prohibition in respect to the speed of trains contained in § 25, Art. 4, was continued in force by the amending ordinance until the railroad complied with the requirements thereof. Unlike the Graney case, there was no ordinance in the case at bar providing unconditionally that trains...