Roshel v. Litchfield & M. Ry. Co.

• Decision Date: 01 February 1938
• Docket Number: No. 24348.,24348.
• Court: Missouri Court of Appeals
• Parties: ROSHEL v. LITCHFIELD & M. RY. CO. et al.

112 S.W.2d 876

ROSHEL v. LITCHFIELD & M. RY. CO. et al.

No. 24348.

St. Louis Court of Appeals. Missouri.

February 1, 1938.

Appeal from St. Louis Circuit Court; Hon. M. Hartmann, Judge.

"Not to be published in State Reports."

Action for personal injuries sustained in collision between automobile and train by Catherine Roshel against the Litchfield & Madison Railway Company and Robert Paschall. From a judgment on a verdict for plaintiff, defendant railroad company appeals.

Reversed and remanded.

T. M. Pierce and E. T. & E. H. Miller, all of St. Louis, for appellant.

A. W. Stephensmeier and John Grossman, both of St. Louis, for respondent.

BECKER, Judge.

This is an action for damages for personal injuries alleged to have been sustained while plaintiff was a passenger in an automobile driven by defendant Robert Paschall westwardly on a public highway in Illinois near Granite City, by reason of said automobile running into a freight car which was part of a moving train operated by defendant railroad company.

Upon trial of the case the jury returned a verdict in favor of plaintiff for $1,000 and against each of the defendants. From the resulting judgment defendant railroad company alone appeals.

On the evening of September 15, 1934, defendant Robert Paschall took plaintiff and her sister Marie Roshel in his automobile from the city of St. Louis to a night club near Granite City, Ill. They were accompanied by another automobile in which were George Meyerott and his wife, and Lawson Paschall and his wife. Meyerott, driving his own automobile, took the lead both on the trip to and also coming back from the night club. On the return trip plaintiff, defendant Paschall, and Marie Roshel sat in the front seat of Paschall's car, Paschall at the wheel, Marie Roshel sitting next to him, and plaintiff next to Marie. They drove via the Edwardsville road, a concrete highway 20 feet wide, running east and west. The weather was dry and the night was dark. East of Granite City three railroads cross the Edwardsville road obliquely in a northeast to a southwest direction. As one approaches these tracks driving east along the Edwardsville road, one comes first to the tracks of the Nickel Plate, then 165 feet farther west one comes to the defendant Litchfield & Madison Railway Company's tracks, and 135 feet farther on one reaches the Alton & Southern Railroad Company's tracks. There is but one railroad crossing sign, and that appears on the right-hand side of the road just east of the Nickel Plate tracks. The defendant Litchfield & Madison tracks were built between the Alton & Southern and the Nickel Plate tracks, and no warning signs of its own have been erected. The defendant Litchfield & Madison relies for warning traffic approaching from the east upon the crossing sign of the Nickel Plate.

As the two automobiles approached the Nickel Plate tracks both came to a stop, Meyerott's car in the lead, and the car in which plaintiff was riding stopping back of that car. The cars then crossed the tracks of the Nickel Plate and had attained a speed of perhaps 25 miles per hour when Meyerott's car, which was in the lead, stopped suddenly, and Paschall's car, which was following some 25 or 30 feet behind, swerved to the right thereof and ran into a freight train operated by the defendant company which was crossing the Edwardsville highway. The train, which was made up of fifty-one freight cars, was over 2,000 feet in length. The car which was struck by the automobile in which plaintiff was riding was the thirty-fourth car from the engine; it was a flat car without any body or sides to it, and its total height but 4 feet above the rails. The car struck was the fourth car of a group of six flat cars in the train, the six flat cars aggregating a total length of 270 feet.

The assignments of negligence against defendant railroad company as set out in the petition were that the defendant's crossing in question, over the Edwardsville road, furnished an unusual danger and hazard, and that under the laws of the state of Illinois, as decreed by its Supreme Court, there is a common-law duty devolving upon railroads under circumstances surrounding such a railroad crossing as that in the instant case, to exercise such care and use such precaution as will enable travelers on the highway, if he exercises ordinary care, to ascertain in the nighttime the approach of a train over a crossing, and that special conditions creating special hazards at crossings require a watchman, gates, or other warning for travelers; that, due to the fact that the color of the cars and equipment making up the freight train into which the automobile in which plaintiff was riding ran, was of the same color of the surroundings and background, and because of the existence of a knoll or hill adjacent and abutting defendant's right of way on the north, the approach and presence of defendant's freight train and cars were obscured from view and hidden, and that on account thereof it was impossible on the part of plaintiff to determine or know the impending peril or danger, or the fact that the said trains were actually in motion, present, and in the path of plaintiff's automobile, and crossing said Edwardsville road; that, due to the fact that at said crossing, and particularly the track which said freight train was on, and upon which cars were moving, there were no visible or audible warnings given, or signs, or signboard, or gates, or other warning of the presence of the aforesaid tracks or freight train or cars, and that because of these facts said crossing was a menace and a danger, and a hazard to persons operating vehicles, or passengers in vehicles, and constituted, on said account, a trap or hazard or unusual danger, and that on account of the failure and negligence of the defendant to provide said signals, either visible or audible, or signboards, or signs, or warnings of the danger of said crossing, said automobile in which plaintiff was riding as a passenger was caused to come in violent collision with the said moving freight train of said defendant at said crossing.

The defendant Paschall was charged with negligence contributing to cause the collision in that he operated his automobile at a high and dangerous rate of speed, to wit, 25 miles per hour.

The defendant railroad company's answer admitted plaintiff's allegation of negligence as to defendant Paschall, namely, that in approaching the railroad track Paschall was operating his automobile at a high and dangerous rate of speed, to wit, not less than 25 miles an hour, and averred further that plaintiff's injuries were caused or contributed to by her own negligence in failing to look and listen before attempting to cross the track; in failing to warn the driver of the automobile on approaching the crossing of the presence of the train in time for the driver to have avoided the collision; that plaintiff failed to warn Paschall of the high and dangerous rate of speed of the automobile, and failed to remonstrate with him against such high and dangerous rate of speed, or take any precautions to guard against the results thereof, thereby directly contributing to her injuries. The defendant railroad company in its answer further pleaded certain decisions of the Supreme Court of Illinois defining the duty of a guest in an automobile. Plaintiff's reply, among other things, alleged that the negligence of the driver of the automobile could not be imputed to plaintiff.

The appellant assigns as error the action of the trial court in overruling its demurrer offered at the close of the case. Appellant's contention in support of this assignment of error is that the evidence fails to show any negligence on the part of the railroad company that was the proximate cause of plaintiff's injury.

It is true that the plaintiff did not introduce any Illinois statute which required a railway company to construct signs at a crossing, but our consideration of the record before us has brought us to the conclusion that the case falls within the rule announced in Wagner v. Toledo, Peoria & Western Railroad, 352 Ill. 85, 185 N.E. 236, wherein it is held that there is a common-law duty devolving upon railroads to exercise such care and use such precautions as will enable a traveler on a highway, if he exercises ordinary care, to ascertain in the nighttime the approach of a train over a street or road. Also where special conditions create special hazards at a crossing a watchman, gates, or other warning to travelers may be required, and it may be negligence not to provide a warning signboard, even in the absence of statutory requirements, if the crossing is of an unusually dangerous character. And it was further held in that case that the rule that one crossing a railroad track must approach it with the amount of care commensurate with the known danger cannot be applied if the conditions are such that the existence of the track would not be revealed to one in the exercise of reasonable care.

Viewing the testimony in the light most favorable to plaintiff, and giving her the benefit of all reasonable inferences to be drawn therefrom, as we must in considering the ruling of the trial court on defendant's demurrer, we find that plaintiff was a passenger in an automobile being driven along a highway with which plaintiff was unfamiliar; that it was at night and very dark; that the freight train which the automobile ran into was operated by the defendant railway company over its tracks which were situate between the Nickel Plate and the Alton & Southern Railroad Company tracks, distant 165 feet from the former and 135 feet from the latter, yet, so far as the tracks of the defendant company are concerned, no warning sign had been erected by it to apprise those approaching its tracks from the east of their presence.

A photograph was introduced in evidence as an exhibit which clearly shows that each of the three railroad tracks crossing the...