Smith v. St. Louis & A. Ry. Co.

• Decision Date: 07 June 1932
• Docket Number: No. 21859.,21859.
• Citation: 50 S.W.2d 666
• Parties: SMITH v. ST. LOUIS & A. RY. CO.
• Court: Missouri Court of Appeals

50 S.W.2d 666

SMITH v. ST. LOUIS & A. RY. CO.

No. 21859.

St. Louis Court of Appeals. Missouri.

June 7, 1932.

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

"Not to be officially published."

Action by Joseph Smith against the St. Louis & Alton Railway Company. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Holland, Lashly & Donnell, of St. Louis, for appellant.

William Kohn, of St. Louis, for respondent.

NIPPER, J.

Joseph Smith sued the St. Louis & Alton Railway Company for damages for personal injuries, and obtained a judgment for one thousand dollars. Defendant has appealed.

There were seven assignments of negligence in the petition, but plaintiff went to the jury only on the assignment of negligence that defendant failed to give any signal of warning.

The accident happened while plaintiff was riding as a guest in a Ford automobile driven by its owner. The accident was the result of a collision with an interurban electric car operated by defendant, between the town of Nameoki and Granite City, in the state of Illinois. The accident occurred at what is referred to in the evidence as Fehling crossing. Defendant's single car track runs north and south and crosses the public highway on which the Ford automobile was being operated. This highway runs approximately east and west. The automobile was being driven in a westwardly direction across the track, and was struck by a south-bound car. To the east of the car track, and for a long distance north and running parallel with said track, about forty feet away from it, is a main concrete highway. Plaintiff and the driver were coming south on this concrete highway and traveling the same direction the interurban car was traveling. When the driver of the automobile in which plaintiff was riding reached this road turning east and crossing the track, he left the highway and proceeded toward the car track which was about forty feet away. Plaintiff was sitting in the seat to the driver's right. At the time of the collision the automobile was going west and the interurban car coming south.

The railroad track was elevated about a foot higher than the surrounding land. To the east of the railroad track and parallel therewith, there was a line of telegraph poles located about twelve or fifteen feet from the railroad track; the nearest of these poles was about twelve feet from this crossing. The poles ran northwardly along the track and were placed at intervals of about one hundred feet. These poles were ten or twelve inches in diameter.

Plaintiff stated that while the automobile was moving from the concrete road toward the railroad track, he looked to the north, but did not see an approaching street car. When the automobile got to a point four or five feet from the railroad track it was stopped. While so stopped, plaintiff testified that he looked to the north along the track. He had a view of the track for about two hundred fifty feet, but no further. The driver of the automobile testified that when he looked he had a view of the track for about one hundred fifty feet. Both the driver and the plaintiff testified that there was no car in sight at that time. The automobile then proceeded slowly across the railroad track, but before it had gotten across it was struck by this interurban car, and plaintiff sustained the injuries for which he recovered judgment.

The country surrounding the location of this accident was level, consisting of farm lands.

Plaintiff and the driver testified that their view to the north was obstructed by this line of telegraph poles. The evidence on the part of the plaintiff discloses that no warning sound or signal was given by those operating the interurban car. They did not observe the car which struck them until it was within six to ten feet of the automobile. Then the first warning of any kind was given according to plaintiff's evidence.

The photographs introduced in evidence disclose that as the railroad track proceeds north, it slightly curves to the east. The evidence also discloses that were it not for these poles the distance to the north would be unobstructed for at least a mile. One witness, who was standing about 250 feet north of the crossing on the east side of the concrete road, said he could see the street car from the time it was 550 feet from the crossing. The highway on which plaintiff was driving at the time of the collision does not cross the railroad track at right angles, but travels across the track in a slightly southwestern direction. There is evidence that the trolley poles on the east side of the track cut off the line of vision beyond the point where plaintiff says he could see, the track to the north bending toward the east.

The testimony on the part of plaintiff shows that no whistle or bell or any warning signal was given of the approaching car. The testimony of plaintiff as to his vision being obstructed by these telegraph poles was corroborated by other witnesses.

It is unnecessary to review particularly the evidence on the part of the defendant, for the principal ground urged for reversal is that the court should have given the peremptory instruction...