Sisk v. Chicago, B. & Q. R. Co., 22695.

CourtCourt of Appeal of Missouri (US)
Citation67 S.W.2d 830
Decision Date06 February 1934
Docket NumberNo. 22695.,22695.
PartiesSISK v. CHICAGO, B. & Q. R. CO.
67 S.W.2d 830
No. 22695.
St. Louis Court of Appeals. Missouri.
February 6, 1934.
Rehearing Denied February 21, 1934.

[67 S.W.2d 831]

Appeal from St. Louis Circuit Court; Chas. W. Rutledge, Judge.

"Not to be published in State Reports."

Action by Tom L. Sisk against the Chicago, Burlington & Quincy Railroad Company. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

J. C. James, of Kansas City, and Douglas W. Robert, of St. Louis, for appellant.

C. O. Inman, R. J. Horsefield, and C. R. Cravens, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Tom L. Sisk, on January 23, 1930, in a railroad crossing accident. Tried to a jury in the circuit court of the city of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, Chicago, Burlington & Quincy Railroad Company, in the sum of $5,000. From the judgment rendered, following the overruling of its motion for a new trial, defendant has duly appealed.

The accident happened at a point about two miles east of Herrin, Ill., where defendant's line crosses the concrete highway which leads from Herrin to West Frankfort.

The case was submitted to the jury by plaintiff upon two of the assignments of negligence in his petition, a violation of the bell and whistle statute of Illinois (section 68, c. 114, Hurd's Revised Statutes of Illinois 1917 [Smith-Hurd Rev. St. Ill. 1933, c. 114, § 59]), and common-law negligence in failing to have given a timely warning with the whistle.

67 S.W.2d 832

Suffice it to say that the statute in question, as it was pleaded in the petition, makes it the duty of a railroad company engaged in operations within the state of Illinois to equip its locomotives with a bell and whistle and to cause the bell to be rung or the whistle to be sounded at a distance of at least 80 rods from the place where the railroad crosses or intersects any public highway; the ringing or whistling to be continued until the crossing is reached.

Defendant's answer was a general denial, coupled with a plea of contributory negligence to the effect that plaintiff had driven his automobile in front of a fast moving train when the train had been in full view long prior thereto while plaintiff was in a place of safety and able to stop, and that plaintiff had failed to take such precautions for his safety as it was his duty to do, and had failed to stop, look, or listen before going upon the track when at such distance from the crossing as that by doing so he might have learned of the train's approach in time to have remained in a place of safety.

The reply was in the conventional form.

With the appeal being by defendant from a judgment based upon a verdict in plaintiff's favor, it need scarcely be said that in the statement of the facts of the case as the same are determinative of plaintiff's right to have submitted his theories of recovery to the jury, we shall necessarily accord plaintiff the benefit of all favorable evidence that was adduced, whether from his own or from defendant's side of the case, including the benefit of the reasonable and legitimate inferences of fact on all the proof. In other words, so far as regards the question of the sufficiency of the evidence to have made a case for the jury, we must regard plaintiff's evidence as true, and defendant's as false where it is contradicted by that of plaintiff; and no inferences will be permissible save those which support and corroborate the ultimate facts which plaintiff's evidence tends to prove. Johnson v. Chicago & E. I. Ry. Co. (Mo. Sup.) 64 S.W.(2d) 674; Hayward v. People's Motorbus Co. (Mo. App.) 1 S.W.(2d) 252.

At the point of the accident the highway runs approximately east and west and the railroad track slightly northeast and southwest. The highway seems to be of the conventional concrete type, with lanes for traffic moving in both directions. Approaching the crossing from the west the highway comes down a gradual grade; but from the foot of the grade to the crossing, a distance of from 100 to 300 feet, as well as at the crossing itself, the highway is practically level.

North of the crossing, the track extends through a cut some 18 to 20 feet deep at its deepest point, and of sufficient depth as near as 200 feet to the crossing to obstruct the view of trains as they pass through it. At the time of the accident it appears that the embankment to the west of the cut (that being the direction from which plaintiff approached the crossing), was further obstructed by a growth of trees, weeds, and briars, as well as by the snow which was clinging to their branches.

On the east side of the track and to the south of the highway stands an electric signal with arms that move backwards and forwards and a bell that rings in timely fashion upon the approach of a train from either direction. At least it is designed to operate in that fashion, though on the occasion of the accident it seems to have been out of repair. There are also two other warning signs located upon the western approach to the crossing, one the conventional type of metallic highway marker which stands to the south of the highway quite some distance back from the crossing, and the other the usual type of wooden cross-arm sign which railroad companies erect at or near their crossings, and which in this instance stood to the right of the highway probably about 15 feet back from the track. However, the presence of such two latter signs along the highway is of no particular importance in the case in view of plaintiff's own admission that he frequently used the highway, that he was familiar with the crossing, and that he knew that a train was due at about that time of day, though he was not certain from which direction it would come.

The accident happened around 1 or 1:30 o'clock in the afternoon. The day was cold, and the pavement was coated with ice, especially on the level portions of the highway such as the stretch from the foot of the grade to the crossing.

Plaintiff was driving a Buick coach, with the left front window lowered halfway. Knowing that a train was due at that point at about that time of day, and appreciating the increased hazard in maintaining control of his automobile on account of the presence of the ice on the pavement, plaintiff slowed down to a speed of 20 miles an hour when he was yet some 200 feet from the crossing. He testified that he regarded such speed as slow enough to enable him to stop in safety if the necessity to stop should arise; the evidence being that on a dry pavement at least he could

67 S.W.2d 833

have stopped in 25 feet at a speed of 20 miles an hour.

At 100 feet from the crossing plaintiff looked ahead at the electric signal, and noticed that it was silent. He observed that the arms were not moving and that the bell was not ringing. He then looked to his left towards the north, and then to his right towards the south, but saw no train approaching from either direction, nor did he hear any bell or whistle. At a point 50 feet from the track he again looked to the north, and then for the first time saw the train emerging from the cut 175 to 200 feet away, and bearing down rapidly towards him. Because of the depth of the cut it had been impossible for him to have seen the train sooner than he did.

Actually the train, as it was usually referred to by the witnesses, was a motor car with separate compartments for mail, baggage, and passengers. However, it was equipped with air brakes and a whistle and bell in much the same fashion as an ordinary locomotive.

Promptly upon his discovery of the train's approach plaintiff applied his brakes, but, instead of stopping, the automobile began to slide upon the icy pavement. Realizing that he was being carried upon the track in front of the train, plaintiff then attempted to turn his automobile to the right in the space between the cross-arm signal and the track; his purpose being to run down the strip of ground alongside the track and in the clear of the overhang of the train. He succeeded in getting his front wheels turned and the automobile carried some few feet south of the highway, but as the rear end of the automobile swung around, it skidded over near enough to the track so as to be struck by the train, which by that time had reached the point of collision.

Just at the moment of the collision plaintiff heard the whistle sounded for the first time. His testimony was that at no time prior to the collision had the whistle been blown or the bell rung, nor had the automatic signal been in operation. He had been attentive to all such signals as he approached the crossing, and his circumstances were such that he could have seen and heard them if they had been given.

Shortly after the accident one of defendant's section men came upon the scene and from an inspection of the electric signal found that it would not operate. Defendant's own evidence disclosed that as early as 11:15 in the morning notice had been received that the signal was out of order.

It was further shown by defendant's own witnesses that the train was running at a speed of 35 miles an hour, that the air brakes were not applied until momentarily before the collision, just as the front of the train reached the crossing itself, and that the train ran from 300 to 500 feet before it was brought to a stop. The engineer or motorman admitted that as he came out of the cut he saw plaintiff's automobile approaching the crossing, that when plaintiff was still 15 feet from the crossing it was apparent that he would be unable to stop, and that no effort was made to stop the train until it had come entirely up to the crossing.

The first point made by defendant is that it was error for the court to have refused its oral motion to dismiss the case at the conclusion of the opening statement of plaintiff's counsel for what...

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