Rowe v. Henwood

• Decision Date: 20 January 1948
• Docket Number: No. 27319.,27319.
• Citation: 207 S.W.2d 829
• Parties: ROWE v. HENWOOD.
• Court: Missouri Court of Appeals

207 S.W.2d 829

ROWE v. HENWOOD.

No. 27319.

St. Louis Court of Appeals. Missouri.

January 20, 1948.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by Burt H. Rowe against Berryman Henwood, trustee for the St. Louis Southwestern Railway Company, to recover for injuries sustained by the plaintiff when an automobile he was driving ran into the side of defendant's freight train. From a judgment for the plaintiff, the defendant appeals.

Judgment reversed.

John W. Murphy, General Counsel, Lashly, Lashly, Miller & Clifford and Oliver J. Miller, Trial Counsel, all of St. Louis, for appellant.

Chas. L. Long, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Burt H. Rowe, when the automobile he was driving ran into the side of a standing freight train being operated by the St. Louis Southwestern Railway Company of which defendant, Berryman Henwood, was the duly appointed and acting trustee.

Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $3,000. Judgment was rendered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.

The accident happened about two miles north of Malden, Missouri, at the point where one of defendant's spur tracks crosses Highway 25, which runs generally north and south. The time of the accident was "close to" or "around" eight o'clock on the evening of March 4, 1943.

The portion of the train blocking the highway consisted of two coal cars, which were stopped so that the point where they were coupled together was "near the center of the highway, or maybe just a little east of the center".

The negligence pleaded and relied upon by plaintiff was the act of defendant in permitting the two coal cars to stand motionless across the highway without warning of any kind.

Defendant's answer was a general denial, coupled with a plea of contributory negligence.

The main line track at the point in question extends parallel with the highway some 200 yards to the east. The spur track upon which the coal cars were standing leads off from the main line on a curve, and then runs directly across the highway into the grounds of an airfield located to the west of the highway, which was being used by the Government at the time as a training school for pilots. Inside the grounds are two or three additional tracks branching off from the spur track, which were laid so as to serve different points in the airfield such as the commissary or warehouse, the power plant, and the like. It appears from defendant's evidence that on the occasion of plaintiff's injury the train crew had completed a movement on the commissary track, and had pulled out across the highway and brought the train to a stop so that the switch could be thrown and the train backed onto a track leading down to the power plant, where the cars of coal were to be set down. The train was made up of six cars; and at the moment of the accident two cars were entirely east of the highway, two partly on the highway, and two entirely west of the highway. The engine was of course east of the highway at the head of the string of cars, and was standing so that its headlight was being thrown to the southeast towards the point where the spur track connected with the main line.

The land in the vicinity of the point of the accident is "perfectly level", with nothing to obstruct a motorist's view of the surroundings, and with no inclines or embankments to obscure the crossing. North of the crossing at the west edge of the highway is a sign erected by the state highway department to warn approaching southbound motorists of the existence of a railroad crossing ahead.

Plaintiff resided in Malden at the time of the accident, and in addition to the operation of two farms which he owns near Sikeston, Missouri, was engaged in the business of selling insurance over a territory comprising six counties in the southeastern part of the state. He was admittedly familiar with the crossing as well as with the activities that were being carried on at the airfield at the time. He knew that the crossing was frequently used by the railroad company for the purpose of taking cars in and out of the airfield, and he had seen trains across the highway on two or three previous occasions. However he recalled having passed over the crossing only once at nighttime prior to the occasion when the accident occurred.

On the day in question plaintiff had made a trip to Sikeston, and late in the evening started on the return trip of forty miles to Malden. He was driving a 1941 Plymouth automobile, which was in good condition as respects its headlights, brakes, windshield wiper, and the like.

When plaintiff had driven to a point about seven miles west of Sikeston, it began to snow; and by the time he reached Morehouse, which was six or seven miles farther on his route, the snow had become "very heavy" and so continued up to the time of the accident, which, as we have already indicated, was "close to" or "around" eight o'clock.

At Dexter plaintiff turned south on Highway 25, and being familiar with his surroundings, was aware that he was approaching the crossing. He knew that he was "close to it", and was "watching the road". He was driving around thirty miles an hour, and his windshield wiper was working to keep his windshield clear of the snow, which appeared to be coming from the south, the direction in which he was traveling. His headlights were burning, but were "tilted down on account of the snowing condition".

While the lights were on "all over the airfield", plaintiff testified that "driving toward those lights had a tendency to make more or less a blind spot here at the crossing". There was a revolving beacon light located in the airfield, but its beam was focused upward so as to have no effect towards lighting up the crossing.

Plaintiff testified that he first discovered the train standing across the highway when he was forty or fifty feet away from the crossing. This was of course merely an estimate, or what he "imagined" the distance to be. He immediately applied his brakes, but because the pavement was "slick with snow and slush", he had no braking power and began to skid. Seeing that he would be unable to stop short of the crossing, he attempted to turn his automobile to the left, but nevertheless collided with the train, the front of his automobile being "wedged in" between the two coal cars which were coupled together near the center of the highway.

It was an admitted fact that the train crew had no brakeman or flagman stationed out on the north side of the crossing to warn approaching motorists that the crossing was blocked. Plaintiff testified, however, that on all previous occasions when he had observed a train about to cross or actually crossing the highway, there was "always some one there to stop traffic". He further testified that as he approached the crossing, he heard no bell or whistle, and observed no warning signal of any kind.

By way of attempting to explain his failure to have discovered the train sooner, plaintiff testified that he was confused by light down the highway ahead of him which he mistook to be the light of another automobile (whether moving or standing, he could not say), and which gave him the impression that the road was open. He recalled having first seen the light when he was "quite a ways up the road, maybe a half mile or more". Whatever may have been the source of the light, it developed that plaintiff actually saw it through the open space between the two coal cars "near the center of the highway, or maybe just a little east of the center". The coal cars were "of a dark or dark gray color", and were so constructed that the ends of the beds sloped downward and backward at an angle, leaving an open space between the two cars of three or four feet at the top and approximately nine feet at the bottom.

Plaintiff's only witness was one C. R. Peck, the Mayor of Malden. Peck testified that on the day in question he had visited in Dexter, and between seven and eight o'clock that night started back to Malden in his automobile. His route was of course southward on Highway 25. Accompanying him were two or three children about six or seven years of age. Peck testified that he reached the railroad crossing "a little bit" before eight o'clock. When he was "about" one hundred yards from the crossing, the children called his attention to the fact that "the railroad had the road blocked". Prior to that time he himself had not observed that the crossing was obstructed. The cars standing across the highway were "hopper bottom coal cars". He drove on down to the crossing and stopped, and after a wait of from five to eight minutes, the train pulled off of the crossing, and he continued on south to his destination. He corroborated plaintiff's testimony that there was no brakeman or flagman stationed out north of the train to warn approaching motorists that the crossing was blocked.

When defendant's counsel objected to Peck's testimony on the ground of the irrelevancy of "something that happened quite a little while before", plaintiff's counsel replied that "it wasn't quite a little while before; it was immediately prior to this".

Defendant argues as a matter of chief insistence that the court erred in overruling his motion for a directed verdict for the reasons, first, that the evidence did not establish a submissible case of negligence on defendant's part; and second, that plaintiff's own evidence in any event convicted him of contributory negligence as a matter of law.

As for the issue of defendant's negligence (which presented a question of purely common-law negligence in permitting the two coal cars to...