Rummels v. Illinois Cent. R. Co.

• Decision Date: 05 March 1929
• Docket Number: No. 20296.,No. 20160.,20160.,20296.
• Citation: 15 S.W.2d 363
• Parties: RUMMELS v. ILLINOIS CENT. R. CO. et al.
• Court: Missouri Court of Appeals

15 S.W.2d 363

RUMMELS v. ILLINOIS CENT. R. CO. et al.

No. 20160.

No. 20296.

St. Louis Court of Appeals. Missouri.

March 5, 1929.

As Modified on Denial of Rehearing April 2, 1929.

Further Rehearing Denied April 16, 1929.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Wilkins Rummels against the Illinois Central Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

J. L. Howell and R. E. Blodgett, both of St. Louis, for appellant St. Louis Merchants' Bridge Terminal Ry. Co.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (V. W. Foster, of Chicago, Ill., of counsel), for appellant Illinois Cent. R. Co.

Strubinger & Strubinger, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, sustained by plaintiff on March 27, 1925, when an automobile truck in which he was riding was struck by a train, owned by defendant Illinois Central Railroad Company, and operated by the latter over the tracks of defendant St. Louis Merchants' Bridge Terminal Railway Company. Originally, it appears that the Terminal Railroad Association of St. Louis was also joined as a party defendant, but during the trial of the case plaintiff dismissed as to such company. The trial proceeded, resulting in the return of a verdict in favor of plaintiff, and against defendants Illinois Central Railroad Company and St. Louis Merchants' Bridge Terminal Railway Company, in the sum of $2,800; and, from the judgment rendered, both defendants perfected separate appeals. While the causes have not been consolidated by an order entered of record prior to their submission, the questions involved all grow out of the same state of facts, in consequence of which both appeals will be treated and disposed of in this one opinion.

The case was tried and submitted as to defendant Illinois Central Railroad Company upon an assignment of negligence under the humanitarian doctrine, based upon the alleged failure of the operatives of the train, after the perilous position of the occupants of the truck was, or should have been, discernible to them, either to have sounded the whistle in time for the driver of the truck to have heard such warning and acted thereon, or to have reduced the speed of the train so as to have permitted the truck to pass out of the danger zone.

As to defendant St. Louis Merchants' Bridge Terminal Railway Company, the negligence relied upon was the failure of such defendant to have provided a watchman at the crossing at the time of the collision.

The answer of defendant Illinois Central Railroad Company, save for certain admissions, was a general denial, coupled with a plea of contributory negligence, in that plaintiff failed to exercise ordinary care to look and listen for the approach of the train before going upon the track, when by looking and listening he could have seen and heard the train in time to have avoided being injured.

The answer of defendant St. Louis Merchants' Bride Terminal Railway Company was a general denial, coupled with a plea of contributory negligence, based upon plaintiff's alleged failure to have looked and listened, together with a further plea that plaintiff's injuries were caused by the sole negligence of the driver of the automobile truck.

To each of such answers plaintiff filed a reply, worded in conventional form.

The scene of the casualty was the intersection of Main and Brooklyn streets, in the city of St. Louis; the former extending generally north and south, and the latter, east and west. Two railroad tracks, the property of defendant St. Louis Merchants' Bridge Terminal Railway Company, were laid in Main street, the one to the east for north-bound, and the one to the west for south-bound, traffic. The width of each track was 4 feet 8½ inches from rail to rail, the standard gauge for railroads, while the space between the two tracks proper was 8 feet 3½ inches.

Plaintiff was employed at the time of the occurrence by the Republic Metal & Rubber Company, whose three-story building was located on the northeast corner of the intersection, fronting on Brooklyn street, and extending northward in a parallel line with the tracks for approximately 214 feet, and 20 feet, or slightly more, east of the east rail of the north-bound track. At the southwest corner of the building, and between it and the tracks, there was a pile of rubbish, estimated as being of a maximum height of 12 feet, and extending out from the building for a distance of from 5 to 7 feet.

On the day in question, plaintiff completed his work about 5:45 o'clock in the afternoon, after which he, together with certain fellow employés, got into a truck, owned and operated by one Haus, for the purpose of riding westward to the Broadway street car line. The truck was about 25 feet in length, and the floor of the bed was approximately 4 or 4½ feet above the surface of the street. Plaintiff was standing in the bed of the truck, at a point 3 or 4 feet from the rear end.

Starting from the front entrance to the Republic building, 50 feet east of the crossing, the truck proceeded westward on the north side of Brooklyn street, at a speed of 5 or 6 miles an hour, up the incline towards the crossing, which was 3 feet higher than the level of the street below. As the truck cleared the obstructions on the south side of the street, which were practically the same distance from the tracks as the building on the north side, plaintiff first looked to the south for the watchman, at the latter's regular post of duty, but did not see him, and therefore concluded that no train was to be expected. Nevertheless, as soon as he was in a position to see up the tracks to the north, he looked in that direction, but saw no train. At the time he first looked to the north, plaintiff himself, without regard for the position of the truck, was about 6 feet east of the first, or east, rail of the north-bound track. He then glanced once more to the south, following which he looked again to the north, when he first discovered the south-bound train approaching on the west track; the front of the engine at that moment being practically even with the north end of the Republic building, 214 feet away. At the instant plaintiff became aware of his peril, he himself must have been practically midway of the two tracks, in view of his testimony that the truck thereafter moved forward a distance of 8 to 12 feet, and, in fact, cleared the track, save for about 18 inches at the rear, which portion was struck by the train.

Other occupants of the truck who were sitting near the front, and were therefore in a position to discover the approach of the train sooner than the plaintiff, testified to having seen it before the moment that he did. For instance, one witness, Giesler, who was in the seat with the driver, first observed the train when the front wheels of the truck were passing over the first rail of the east, or north-bound, track. It was shown that the truck extended 5 or 6 feet in front of the wheels, so that, at that moment, the front of the truck must have been within approximately 6 feet of the south-bound track. Giesler also calculated that the truck ran about 33 feet from the time he first saw the train until the collision occurred.

When the approach of the train was discovered, the driver of the truck attempted to increase its speed, but it does not appear that it had attained a greater speed than 7 miles an hour when it was struck. The speed of the train was variously estimated at from 15 to 50 miles an hour; and plaintiff and all of his witnesses were positive that its speed was not slackened until after the collision, nor was it brought to a stop until the last of the seven coaches had reached a point from 200 to 250 feet south of the crossing. No bell or whistle was heard; and, in fact, the engineer admitted that the whistle was not blown, but he did contend that the bell was ringing continuously.

In regard to the distance in which the truck might have been seen by the engineer before the moment of the collision, there was evidence of certain experiments made by both plaintiff and defendant as south-bound trains passed by, which disclosed that the corner of the Republic Building disappeared from the engineer's view when he was 570 feet north of the crossing, and that the east rail of the north-bound track disappeared from his view when he was 160 feet north of the crossing. While the fireman, from his side of the cab, could have seen the truck at all times after it came from behind the obstructions, the testimony showed that on this occasion, at and prior to the moment of the accident, he was engaged in putting fuel into the firebox, in consequence of which he had no opportunity to discover the truck's approach.

So far as concerns the distance in which the truck could have been brought to a stop, the only evidence upon that point was the testimony of the driver himself that a space of 10 feet would have been required for that purpose.

The watchman, to whom reference has heretofore been made, was an employé of defendant St. Louis Merchants' Bridge Terminal Railway Company. It was shown that his regular hours of service were from 6 a. m. to 6 p. m., and that he was on duty every day, and in fact had been seen at the crossing on the very day in question as late as 4:30 o'clock in the afternoon. It will be recalled that the collision occurred prior to 6 o'clock, and therefore during the watchman's working hours. No evidence was introduced by defendant St. Louis Merchants' Bridge Terminal Railway Company, and, consequently, the watchman's absence from the scene at the time of the collision was not accounted for.

Defendant Illinois Central Railroad Company first complains of the action of the court in submitting the case to the jury; its contention being that the evidence wholly failed to make a case against it for negligence under the...