De Rousse v. West

• Decision Date: 23 January 1918
• Docket Number: No. 15723.,15723.
• Parties: DE ROUSSE v. WEST et al.
• Court: Missouri Court of Appeals

200 S.W. 783

198 Mo. App. 293

DE ROUSSE v. WEST et al.

No. 15723.

St. Louis Court of Appeals. Missouri.

January 23, 1918.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

Action by William De Rousse against Thomas H. West and others, as receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for appellants. P. B. Hood, of Perryville, for respondent.

BECKER, J.

In this case the respondent, plaintiff below, recovered a judgment for $5,000 for personal injuries received by him in a collision between one of appellants' locomotives and a wagon in which plaintiff was riding. The defendants in due course bring this appeal.

Plaintiff's petition seeks to recover on the following grounds: First. The violation of an ordinance of the city of St. Marys, Mo., limiting the speed of freight trains to six miles per hour. Second. The violation of an ordinance of the city of St. Marys, requiring a watchman to be stationed on the advancing end of all locomotives, cars, and trains, while being operated or run within the corporate limits of said city. Third. The failure to give the statutory cross-road signals. Fourth. In addition, it is alleged that the plaintiff was in a place of peril, and that the employés of defendant saw, or by the exercise of proper care could have seen, plaintiff's peril in time to have stopped the train or to have slackened its speed so as to have avoided the collision.

The answer was a general denial and a plea of contributory negligence.

The collision occurred within the corporate limits of the city of St. Marys, Mo., at the intersection of the main tracks of the defendants' railroad company and Pine street. The railroad tracks in question ran through St. Marys on the banks of the Mississippi river, and at the point in question the tracks consisted of a main line and a side track or switch. These tracks ran parallel with each other and as close together as the safe operation of cars over each track would permit. The tracks run almost east and west, the main track being the nearer of the two to the river. Pine street, where it intersects the said tracks, runs almost north and south.

Plaintiff was driving a wagon, drawn by a team of gentle mules, north along Pine street toward the river. The view from Pine street to the north is obstructed by buildings along the side of defendants' tracks, and on the day in question the plaintiff's view was further obstructed by a box car which was standing on the side track either immediately next to or very near the point where Pine street crosses the said railroad tracks, so that plaintiff could not see down the main line until he passed the box car which was standing on said side track. Plaintiff testified that, as he drove down Pine street and past the box car on the side track, he glanced down the track and saw no train and did not hear any, and:

"I glanced up, and I never seen nor heard none. After I got just about on the main track, I glanced down again and seen it. I suppose it was between 30 and 40 feet from me. Of course, I may have been a little excited, and I started to whip my team, and I believe if I had had a young team I would have made it all right; and the train hit the wagon and I started to jump, but whether the wagon hit me, or the train hit me, I could not say. * * * Q. Was the train, at the time you discovered it, making any noise? A. No, sir."

On cross-examination plaintiff testified that he did not stop his team before he started across the tracks; that he looked twice, the first time he looked was just as soon as he got past the box car, and the second time was when the mules were on the main track, but whether the mules, at the moment he saw the engine, had their forefeet on the track or their entire bodies, he was unable to say. The mules were walking at the time at the rate of three miles per hour.

The plat introduced in evidence below shows that the west rail of the side track is 6.75 feet from the corner of the building which stands at the intersection of Pine street and said tracks. The said side track has a width of 4.95 feet, and there was a distance between the side track and the main line of 9.45 feet; the main line in turn was 4.95 feet in width.

Willis Morrison, a witness for plaintiff, testified that he was driving a wagon immediately behind the plaintiff; that the train, which consisted of an engine and some eight or ten freight cars, came along with the steam shut off and was not making any noise but was coasting; that he did not hear any bell ringing, nor did he hear any whistle; that he saw plaintiff's mules were just on the main track, and the train some 20 to 30 feet away when the plaintiff raised up and began to whip the mules in his endeavor to get across the tracks; that "the train was running along tolerable pert," probably ten miles an hour; he saw the box car on the side track, and the end of it was extending halfway across the sidewalk of Pine street. He further stated that the train ran two rails in length after colliding with plaintiff's wagon, which it struck between the front and rear wheels.

Another witness, E. R. Shoults, testified he saw the train going by his home; that his attention was drawn to it by the fact that it did not whistle or ring a bell; that it went by at a speed of about 10 to 15 miles per hour. His home was within 300 steps of the Pine street crossing.

Charles Nelson testified: That he saw plaintiff just before he got to the switch or side track. That he saw him drive on, and when plaintiff got on the main line he looked down the track. That it was impossible for plaintiff to have seen the engine before that time. That plaintiff then raised up and began whipping his team. Plaintiff jumped when the team was on the main line. The train hit the wagon and ran over plaintiff. Witness did not hear any whistle blown, nor did he hear any ringing of the bell. When the collision occurred, the witness was sitting down eating his lunch and was within 150 feet of the place of the accident. When plaintiff's mules were on the main line, the train was about 75 to 80 feet away from him, and the front wheels of plaintiff's wagon were on the west rail of the main track when plaintiff saw the engine. That the train was coming along at a rapid speed up to within 75 to 80 feet of the crossing, and was making some noise up to that point, but from there on it was not making any noise and was coasting along. That the speed of the train did not slacken until it got within 3 or 4 feet of plaintiff's wagon. That the train ran about a rail and a half to two rails in length after it struck plaintiff's wagon. He further testified that there was a box car on the side track which was standing 4 feet from the offset of the building next to the intersection of Pine street and the railroad crossing; that plaintiff's team was moving between 3 and 4 miles an hour. At one time he stated that the train was going three or four times as fast as the wagon, and at another time that the speed of the train was between 6 and 9 miles an hour.

H. H. Sheer testified that the box car was about one foot north of the side walk.

Benj. Lukefhar testified that the end of the box car was near the end of the sidewalk on the side of Pine street just a little north of the corner; that quite a few town's people looked at the box car immediately after the accident, and he remembered that it was close to the street.

One William P. Smith testified that he had been a locomotive engineer for over 20 years; that a locomotive of the type in question pulling 10 freight cars, if they were loaded, and running at a speed of 6 miles per hour on a dry track, could be stopped in about 15 feet and if the speed was 8 miles per hour at 25 feet, and if 8 to 9 miles per hour within 30 feet.

One Robert McAtee testified that he had been a locomotive engineer for over 12 years; that he knew the particular crossing at which plaintiff was injured, having passed over it in an engine approximately 2,500 to 3,000 times, and that he was familiar with the type of engine that collided with plaintiff's wagon; that an engine of that type, in hauling 10 loaded cars over this crossing on a dry track, when running at the rate of 6 miles per hour, could be stopped within 14 to 15 feet; running 8 miles within 17 feet; 10 miles within 22 feet.

L. R. Tucker testified that he saw the train, and in his opinion it was running between 8 and 10 miles an hour; that he did not hear either the bell ringing or any whistle sounded; that he did hear the report of the exhaust of the engine just about the time it started up, which was some 1,500 feet or more from the scene of the collision.

James McClain, one of the witnesses for defendant, testified: That he was up at the depot, 1,500 feet from the place where the collision occurred, and saw the train start away from...