Scott v. Terminal Railroad Ass'n of St. Louis

• Citation: 86 S.W.2d 116
• Decision Date: 01 October 1935
• Docket Number: No. 23368.,23368.
• Parties: SCOTT v. TERMINAL RAILROAD ASS'N OF ST. LOUIS et al.
• Court: Court of Appeal of Missouri (US)

86 S.W.2d 116

SCOTT v. TERMINAL RAILROAD ASS'N OF ST. LOUIS et al.

No. 23368.

St. Louis Court of Appeals. Missouri.

October 1, 1935.

As Modified on Denial of Rehearing October 16, 1935.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

"Not to be published in State Reports."

Action by Arthur Scott against the Terminal Railroad Association of St. Louis and another. From a judgment for the plaintiff, the named defendant appeals.

Judgment affirmed.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

Gallant & Hannigan and Robert L. Aronson, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, Arthur Scott, when an automobile which he was driving was struck by a train or string of cars of defendant Terminal Railroad Association of St. Louis, at the point where defendant's tracks cross Madison street in the city of St. Louis, Mo. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $3,000; and from the judgment rendered in conformity therewith, defendant has perfected its appeal in due course to this court.

Abandoning his assignments of primary negligence, plaintiff submitted his case solely upon the theory of defendant's negligence under the humanitarian doctrine in failing, short of collision, and after plaintiff's perilous position was observable in the exercise of due care, to have sounded a warning of the train's approach or to have slackened its speed; and with the right of recovery so limited, defendant's pleaded defense of contributory negligence went out of the case, leaving it to stand merely upon its general denial.

At the point in question, defendant has some seven tracks, all running parallel to one another in a northerly and southerly direction, though only the two tracks farthest east figure in the case at hand. The record shows no more than that the tracks were of the conventional type, and that they were separated from one another by the space ordinarily seen in the case of a series of tracks in a railroad yard.

Madison street runs east and west, seemingly terminating at the east side of the tracks, where defendant had erected a frame building or water house, 16 feet in width and 20 feet in length, the west wall of which stood about 25 feet from the easternmost track, and the south side of which extended approximately on a line with the south curbing of Madison street west of the tracks.

For the purpose of reaching the crossing from the east, a roadway about 10 feet in width had been established so as to curve around the south end of the water house, with short right turns at the two corners of the building, and then laid out so as to lead gradually over towards and upon the crossing. The roadway was rough and unimproved, and this, together with its narrowness and two sharp turns, required one using it to drive quite slowly in going around the building. As a matter of fact, the crossing itself was likewise rough and irregular, a space of only some 12 or 14 feet in width having been adapted for the use of vehicles going across the tracks, though Madison street proper was about 50 feet from curb to curb as it extended back to the west of the tracks.

In the area east of the tracks, and in the immediate vicinity of the scene of the accident, there is a small settlement of people, about 100 in number, among whom lived plaintiff with his wife and family at what is known as 2132 Wharf street, at the foot of Clinton street, one block to the north of Madison street.

At approximately half past 6 o'clock on the morning of April 12, 1933, plaintiff left his home in his automobile, intending to cross the tracks at the Madison street crossing and then proceed to a destination in South St. Louis. He came around the water house at a speed of about 5 miles an hour, and then when the front of his automobile had emerged some 4 or 5 feet out beyond the west wall of the building where he, from his position in the driver's seat, could have a view of the tracks to the north as well as to the south, he brought his car to a complete stop and looked in both directions for approaching trains or cars. According to his own testimony, he saw nothing on the tracks save a boxcar which was standing still upon the second track about 100 feet north of the crossing, and having no apprehension of danger, and without looking again to the north, he put his car in low gear, and drove at a speed of approximately 2 miles an hour for a distance of 28 feet out to the second track. The front wheels of his automobile had but barely crossed the first rail of the second track when his attention was attracted by a noise to the north of him. Turning his head in that direction, he saw the boxcar he had originally noticed bearing down upon him at a speed of 12 miles an hour, and then only 15 feet away. He at once swerved his automobile to the left in the moment of time at his disposal, but was unsuccessful in his attempt to avoid the collision, the southeast corner of the boxcar striking his automobile just to the rear of the right door, and causing plaintiff to be thrown through the left door of his automobile, where he received the injuries for which he claims damages in this action.

Actually the car which struck plaintiff's automobile was the lead car of a string of some 12 or 15 boxcars which was being pushed down the track by one of defendant's locomotives in the course of the usual switching operations carried on in the yards at that point. Under the engineer's own admission, the train was brought to a stop in a space of from 20 to 25 feet after the brakes were applied. Plaintiff and his witnesses testified that they had heard neither a whistle nor a bell prior to the collision, nor had plaintiff himself seen any of defendant's employees about the car which struck him, though the train was in charge of the usual crew, with a switchman either hanging to the ladder at the northeast corner of the lead car, as one of plaintiff's witnesses testified, or else walking along in front of the car, as the switchman himself stated in the course of his own testimony.

It is almost needless to say that in stating the facts of the case, following the verdict of the jury in plaintiff's favor, we accept his version of the occurrence as the true one in determining the question of liability, though much of defendant's evidence was directly contradictory of essential features of plaintiff's case, and, if believed by the jury, would have amply warranted the return of a verdict absolving defendant from all imputation of actionable negligence. Only in certain limited particulars might defendant's evidence be said to have aided plaintiff's case, and we shall refer to those instances in connection with our disposition of defendant's chief complaint on this appeal, which is that its requested peremptory instruction in the nature of a demurrer to the evidence should have been given at the close of the entire case, the evidence, under defendant's...