Schulz v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 04 May 1920
• Docket Number: No. 15739.,15739.
• Citation: 223 S.W. 757
• Court: Missouri Court of Appeals
• Parties: SCHULZ v. ST. LOUIS, I. M. & S. RY. CO.

223 S.W. 757

SCHULZ v. ST. LOUIS, I. M. & S. RY. CO.

No. 15739.

St. Louis Court of Appeals, Missouri.

May 4, 1920.

Rehearing Denied May 27, 1920.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Action by Ludwig Schulz, administrator of the estate of Bruno Schulz, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition plaintiff enter remittitur; otherwise, reversed and remanded.

James F. Green and H. E. Larimore, both of St. Louis, for appellant.

Leonard & Sibley, R. R. McRoberts, and Shepard Barclay, all of St. Louis, for respondent.

BECKER, J.

Plaintiff sues as administrator of the estate of his deceased son, Bruno Schulz, who was killed by a train of the defendant company while he was driving a milk cart across the tracks of the defendant company at the milk platform or station called Munson's, in Jefferson county. Plaintiff recovered judgment for $5,000 damages, and defendant appeals.

The petition charges negligence of the defendant in operating its train, in that it approached the crossing in question without giving the statutory signals. The answer is a general denial and a plea of contributory negligence, which plea was denied by plaintiff's reply.

The deceased was 24 years of age and unmarried, and left surviving him, besides his father, four brothers and two sisters, ranging in age from 20 to 38 years and all self-supporting. The deceased was employed as a farm hand at $25 per month, in addition to which he was given his room and board and feed for his horses. The place of his employment was situated about three-quarters of a mile southeast of Munson's Station, which station was maintained by defendant company mainly for the purpose of picking up cans of milk that were shipped from that point by the farmers in the neighborhood to St. Louis. For a long time prior to the date of the accident defendant had a train from the south, known as the "milk train," stop at the station at the hour of 6:30 m. The deceased usually drove a team hitched to a two-wheeled cart, loaded with two or three cans of milk, from the farm to said station each morning in time to make the milk train.

Defendant's tracks, in approaching Munson's Station from the south, make a curve and pass under an overhead railroad bridge about a quarter of a' mile south of the station, and there the tracks enter into a deep cut. From said bridge, however, up to and beyond Munson's the tracks run in a straight line. There are embankments on either side of the tracks from the said overhead railroad bridge, which continue almost up to the crossing in question. The two platforms of which the station consists lie to the west of the tracks and south of the road crossing, so that the deceased, coming as he did from the east, in order to reach the platform had to drive his team across the tracks toward the west and then turn his team some 25 to 30 feet to the south, to deliver his cans of milk. It appears that the road, some hundred feet before it reaches the railroad crossing, ascends a short steep hill, requiring turning first to the left and then to the right; the hill, according to one of the witnesses, being on an incline of 33 per cent., and the top of the hill ending practically at the railroad's right of way and on a level with the tracks. At a point where the road enters the right of way of the railroad of the defendant company is an unused gate, the distance therefrom to the center of the tracks being approximately 30 to 40 feet. By reason of the embankment lying to the south of the road and close up to the tracks, a man driving a wagon and approaching the tracks from the east cannot see southward along the tracks a distance of 150 feet until the horses would have their feet on the railroad tracks, and "then you could see a train for the first time coming from the south."

The deceased was killed at about 6:25 o'clock in the morning of December 21, 1914, by a limited fast train of the defendant company at the road crossing at Munson's Station, as the deceased was driving his milk cart across defendant's tracks.

I. It is seriously contended that the deceased should be held guilty of contributory negligence as a matter of law, and that the learned trial court therefore erred in refusing to give defendant's instruction in the nature of a demurrer asked at the close of plaintiff's case and again at the close of the entire case.

The question is indeed a close one, and it is only after a long and most careful consideration of the record in this case that we have finally resolved this point against appellant. In arriving at this conclusion and considering the case on defendant's demurrer at the close of the entire case, we have necessarily given plaintiff the benefit of such testimony as has been adduced on his behalf, as well as that of any favorable testimony given by defendant's witnesses, and have discarded, for the purposes of considering the demurrer, such testimony of defendant's witnesses as is contradicted. In addition thereto, we have allowed plaintiff the benefit of the reasonable inferences of fact arising on all the proof. Fritz & Groh v. Railway Co., 243 Mo. loc. cit. 77, 148 S. W. 74; Stauffer v. Railway Co., 243 Mo. loc. cit. 316, 147 S. W. 1032; Williams v. Railway Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Peters v. Lusk et al., 200 Mo. App. loc. cit. 379, 206 S. W. 250.

Viewing the record before us in this light, the defendant was negligent in failing to give any warning by bell or whistle in approaching this crossing, and therefore, in light of section 3140, Revised Statutes of Missouri 1909, plaintiff made out a prima facie case and was relieved from making proof that the failure to ring the bell or sound the whistle was the proximate cause of the injury; the statute supplying the causal connection and casting the burden upon the defendant to show that the failure to give the statutory signals was not the cause of the injury. McGee v. Railway Co., 214 Mo. 530, loc. cit. 544, 114 S. W. 33; McNulty v. Railway Co., 203 Mo. 475, loc. cit. 544, 101 S. W. 1082. However, the contributory negligence of the injured party may defeat a recovery, if such appear. McGee v. Railway Co., supra; Maginnis v. Railway...