Stepp v. St. Louis-San Francisco Ry. Co.

• Decision Date: 09 May 1919
• Docket Number: No. 2340.,2340.
• Citation: 211 S.W. 730
• Parties: STEPP v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

211 S.W. 730

STEPP v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 2340.

Springfield Court of Appeals. Missouri.

May 9, 1919.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by A. L. Stepp against the St. Louis-San Francisco Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and N. A. Mozley, of Bloomfield, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

BRADLEY, J.

Plaintiff sues to recover damages for personal injuries and also for damages to his automobile caused by collision with defendant's locomotive engine at a public street crossing in the village of Crowder, Mo. Upon trial before the court and a jury, plaintiff recovered judgment for $600 for personal injuries, and $75 for damages to his automobile. Unsuccessful in motions for a new trial and in arrest, defendant prosecutes this appeal.

Plaintiff's petition is bottomed upon the alleged negligence of the defendant in violating section 3140, R. S. 1909, in approaching a public street crossing without ringing the bell or blowing the whistle at least 80 rods from the crossing, and either keeping the bell ringing or sounding the whistle at intervals until said crossing is reached; and also for violating an ordinance of the village of Crowder prohibiting the operation of trains in the village limits at a greater rate of speed than 8 miles per hour; and in placing and permitting to be placed on and alongside its track obstructions which prevented plaintiff from observing the approach of a train at the time and place of his injury. The answer is a general denial and a plea of contributory negligence.

The evidence offered by plaintiff tended to establish that he approached the crossing from the west traveling on a level public street; that defendant's road at Crowder runs north and south, and intersects the street on which plaintiff was traveling at right angles. The train which collided with plaintiff was a freight train, and was slowing down for the purpose of stopping. There is a side track 11 feet west of the main track on which was the train that collided with plaintiff. About 90 feet west of the side track and on the north side of the street is a two-story hotel building, and other buildings which obstructed plaintiff's view until beyond the hotel. On the side track and on the north side of the street on which plaintiff was traveling was a box car, which extended out into the street some 4 or 5 feet. Beyond and north of the box car, and on the side track, and adjacent thereto, were other cars loaded with logs and bolts, and other obstructions in the way of bolts stacked along the right of way, so that plaintiff's view to the north was obstructed practically from the hotel to beyond the box car. Plaintiff was traveling in a Ford automobile at about 8 miles an hour, and on a partly sandy street. The automobile was making but little noise. He says that he looked both north and south and listened; that he could not see north, because of the obstructions. He testified that he heard neither the whistle nor the bell, and other eyewitnesses testified postively that the bell was not rung nor was the whistle sounded, except that the whistle was sounded at the whistling post some 80 rods north of the crossing. Also there was evidence that at the time the train approached this crossing, and at the moment of the collision, the engineer and fireman and one of the brakemen were engaged in playing with each other. Plaintiff did not discover the approach of the train until he passed beyond the box car that extended into the street, and was then within 11 feet of the main track, and the front of his automobile was only a few feet from the track. The train was "right on" him, and he undertook to "beat it" across, and turned slightly to the south and speeded his engine in an effort to get across. The left hind wheel of the automobile was struck by the pilot on the engine, and plaintiff and the automobile were knocked or shoved some 10 or 15 feet, and plaintiff received some injury by being thrown against the steering wheel. The approaching train, according to plaintiff's witnesses, was going at a rate of speed estimated at 12 or 15 miles per hour. Plaintiff is corroborated in his contention that the engineer and fireman were not observing the law with reference to sounding the bell or whistle when approaching this crossing and keeping a lookout for travelers from the fact that both engineer and fireman admitted that they did not see plaintiff at any time until they had struck and passed him.

Plaintiff makes several assignments of error, but these may well be grouped under three heads: (1) Was plaintiff guilty of contributory negligence as a matter of law? (2) Is there any error in the giving or refusing instructions? (3) Was plaintiff required to use reasonable care in the circumstances, or was he required to use the highest degree of care because he was driving an automobile at the time? Defendant by demurrer challenges the sufficiency of plaintiff's evidence to go to the jury, contending that the facts disclosed in the whole case convict plaintiff of negligence as a matter of law. Under the circumstances, should plaintiff have approached defendant's railroad track at such a rate of speed that he could have stopped his car after discovering the approaching train when he emerged from behind the box car, or should he have stopped and looked and listened before attempting to cross the track. If the answer to either of these questions is in the affirmative, then plaintiff, as a matter of law, was guilty of negligence and cannot recover.

A railroad track is itself a warning of danger. He who approaches a railroad crossing without looking and listening for approaching trains, or stopping and listening if such stopping is necessary to make listening effectual, is guilty of negligence. But, on the other hand, there is the reciprocal duty on the part of the railroad company to observe the positive mandate of the law with reference to signals at public crossings. Swigart v. Railroad, 196 Mo. App. 471, 192 S. W. 138. Stopping or slowing down so as to be able to instantly stop are necessary only when listening is ineffectual. Swigart v. Railroad, supra; Underwood v. Railroad, 182 Mo. App. 252, 168 S. W. 803; Underwood v. Railroad, 190 Mo. App. 407, 177 S. W. 24; Kelly v. Railroad, 88 Mo. 534; Campbell v. Railroad, 175 Mo. 161, 75 S. W. 86. It is pointed out in the Underwood Case, 182 Mo. App. loc. cit. 262, 168 S. W. 806, that—

"It is always a person's duty to look and listen when possible before entering on a railroad crossing. When stopping is essential to make looking and listening effectual, then stopping is necessary."

In Moore v. Railroad, 157 Mo. App. loc. cit. 65, 137 S. W. 7, it is said:

"There can be no doubt of the proposition pertinent here that plaintiff was not required to anticipate defendant's negligence, but, on the contrary, he enjoyed the right to rely upon its performance of duty. So relying, he was authorized to assume that, if a locomotive were in the immediate vicinity, it would both comply with the ordinance by moving forward at a rate not to exceed eight miles per hour and sound the usual signals of approach. * * * Besides, as before stated, he was authorized to assume defendant's locomotive would be sounding a signal, if one were near. Having heard no sound, his act of driving forward with the horse under such control as to afford him an opportunity to save it from the collision entirely does not disclose such reckless conduct as would have justified the court in directing a verdict for defendant on the score of contributory negligence. Indeed, when the view of the track is obscured to within a few feet of the rail as here, one in a highway may presuppose the operatives of the locomotive...