Spain v. St. Louis & S. F. R. Co.

• Citation: 190 S.W. 358
• Decision Date: 16 December 1916
• Docket Number: No. 1739.,1739.
• Court: Court of Appeal of Missouri (US)
• Parties: SPAIN v. ST. LOUIS & S. F. R. CO.

190 S.W. 358

SPAIN v. ST. LOUIS & S. F. R. CO.

No. 1739.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Suit by Florence C. Spain against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Judgment reversed.

W. F. Evans, of St. Louis, and Moses Whybark and A. P. Stewart, both of Cape Girardeau, for appellant. Von Mayes, of Hayti, and Everett Reeves, of Caruthersville, for respondent.

STURGIS, J.

Plaintiff sued defendant railroad for personal injuries inflicted by being struck and knocked down, but not run over, by defendant's cars at a point on its main line 100 feet or more north of where same crosses Cardinal street in Hayti, Pemiscot county. The plaintiff alleges that on this occasion the defendant had obstructed the street crossings with its cars and kept same obstructed an unreasonable length of time and in violation of an ordinance of said city prohibiting the obstruction of any street by railroad trains or cars for longer than five minutes. The petition then proceeds:

"Plaintiff further states that on said date, while said crossing was obstructed as aforesaid, and after the same had been obstructed for a period of over five minutes as aforesaid, she was traveling on foot along said street in a lawful manner and approached said crossing on her way home with the intent and for the purpose of crossing over the track or tracks of said line of railroad at said crossing and on account of said crossing being obstructed as aforesaid she was prevented then and there from crossing over said track or tracks lying across said street at said crossing, and thereupon the plaintiff then and there, at the direction and invitation of said agents, servants and employés, went upon the right of way of said line of railroad a short distance from said crossing and street and attempted to cross over said track or tracks thereof by passing around the end of said cars, when the defendant, by its agents, servants and employés, negligently caused certain cars to be moved, without any warning to plaintiff thereof, and to strike and run against plaintiff with great force and violence, fracturing plaintiff's collar bone and left shoulder blade, mashing and bruising her left hip and cutting and bruising her head and arm, all of which injuries so received are permanent."

The answer contains a general denial, and that plaintiff, when injured, was a trespasser and was guilty of contributory negligence. There was judgment for plaintiff for $2,000. Cardinal street runs east and west and crosses defendant's tracks through its switch yards. Defendant has four tracks running north and south across Cardinal street and another track, the extreme western one, coming from the north and terminating at the north boundary. The east track is the house track or switch; next west is the main track; next the passing track or switch, designated as No. 1; and next the storage track or switch designated as No. 2. Plaintiff says that when she approached this crossing going west she found the east track blocked by cars; that the cars on this track extended only a short distance north of the crossing, not further than the width of a small toolhouse standing at the edge of the street and a few feet east of the track. After waiting about ten minutes for the crossing to be clear, the plaintiff says she remarked to herself, but in the hearing of a train employé standing there, something about how she could ever get across. This trainman, she says, spoke to her saying that she could go around the cars through the opening to the north and there would be no danger; that she went between the cars and this toolhouse, crossed the switch track, and then went on further north, and was going through an opening between cars standing on the main track, which was next west, and while doing so she was struck by the cars coming from the south and closing this opening; that this opening between the cars on the main track was two or three car lengths from the crossing and was nearly that wide; that she went about 15 feet north and beyond the cars before turning through this opening and was still going north, diagonally, and stepping over the west rail, when she was struck from behind without any warning being given.

There were two train crews at the yard at the time, and they severally deny that any one of them gave plaintiff any such directions as to passing around or through cars on the crossing or side tracks; and, as plaintiff only identifies this man as a trainman by his dress and acts, defendant insists that any proof of the authority of this man to give such directions is wholly wanting. One of three boys who were near the crossing west of the main track identifies this man as one whom he saw on the cars and engine directing and assisting in the train's movements. One of defendant's train conductors said he was at the crossing at this time for the purpose of protecting the same and, while he gave a radically different version of what took place and while not identified by the plaintiff, the jury might have believed he or some trainman with apparent authority directed plaintiff as she says. Snider v. Railroad, 108 Mo. App. 234, 244, 83 S. W. 530.

As to plaintiff's contributory negligence, the law imposes on her care commensurate with the danger she necessarily encounters in leaving the crossing and passing over railroad tracks and through openings between cars standing thereon. The direction of the trainman at the crossing that she could do this, while imposing due care on the part of the defendant, did not relieve her of using care commensurate with her surroundings. Gurley v. Railroad, 104 Mo. 211, 231, 16 S. W. 11. On her version of what took place the question as to her contributory negligence being one of law only, is close, as it is hard to see no negligence in her going on the main track in this wide opening and continuing on north, even if diagonally, instead of turning back toward the crossing and not again looking until the cars struck her, 100 feet (she says four or five car lengths) distant from the crossing. It is only on the theory that the crossing was blocked on the main track in addition to the side track that plaintiff would be justified in going on north to the opening to cross the main...