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

• Decision Date: 05 November 1924
• Docket Number: No. 18518.,18518.
• Parties: STILLMAN v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

266 S.W. 1005

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

No. 18518.

St. Louis Court of Appeals, Missouri.

November 5, 1924.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Action by Charles Stillman against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for appellant.

P. S. Terry, of Festus, for respondent.

BRUERE, C.

This is an action to recover for personal injuries and damages resulting from a collision on a public crossing between a railroad car owned and operated by the defendant and an automobile driven by the plaintiff. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff for $500, and defendant has appealed.

The petition charges that the defendant maintained, operated, and controlled a certain branch or spur of its railroad, leading from its main line to a certain brick kiln and stockyards, in the city of Festus, Jefferson county, Mo.; that said branch or spur crossed a public road, in said city of Festus, which led from the western part of said city to Hillsboro, Mo.; that said spur or branch had a heavy upgrade from the said crossing eastward to the junction of said spur with the main line of defendant's railroad, and ran parallel with and diagonally across said public road; that plaintiff, on the 3d day of May, 1921, was proceeding in an automobile along said public road in a westerly direction and in a reasonable, careful, and prudent manner; that the defendant, through its agents, servants, operators, and employés knew, or by the exercise of ordinary care and prudence could have seen, that plaintiff was crossing the spur and track of defendant between its main line and the brick kiln and stockyards aforesaid; that defendant through its agents, servants, operators, and employés saw, or by the exercise of ordinary care and prudence could have seen, knew, or by the exercise of ordinary care and prudence could have known, that if a car were pushed down the spur and track of defendant that plaintiff would become in imminent peril, and that plaintiff would be unmindful and oblivious to said peril; that notwithstanding the knowledge of defendant aforesaid, defendant through its agents, servants, operators and employés, while the plaintiff was in imminent peril and unmindful of same with great force and with great violence, without ringing the bell or blowing the whistle, or furnishing any other warning to plaintiff, negligently shoved a car, unattached to any engine, down the incline on the said spur of defendant, and that the defendant, without ringing the bell or giving any warning to plaintiff, negligently permitted said car to strike plaintiff and his said automobile, thereby causing plaintiff to be injured and his automobile to be wrecked.

The answer contains a general denial, coupled with a plea of contributory negligence, which plea charges:

"That whatever injuries the plaintiff received to his person, and whatever damage was done to his car, was caused, produced, and brought about by his own failure to exercise reasonable and ordinary care for his own safety and in driving upon said track without stopping, looking, or listening for the approach of the car which afterwards struck him, when said car could have been seen had he looked before going upon said track; that he took no other precaution whatever to ascertain the approach of said car; and that he was driving his machine at a very rapid and dangerous rate of speed at the time."

The undisputed facts in the case are these: The Hillsboro-Festus public road runs east and west and about 40 feet south of and parallel to the main line of defendant's railroad. At a point 540 feet east of the crossing in question a switch track or spur leaves defendant's main line, and runs between the main line and said public road in a southwesterly direction. Just south of said crossing the public road turns and crosses the switch track or spur in a northwesterly direction, and then continues west between the said switch and the main line. This spur track is built on an elevation, estimated by the witnesses to be from 10 to 20 feet above the level of said public road at the point where it leaves the main line of defendant's railroad. Running west of said point the spur track gradually declines so that at the crossing it runs level with said county road.

Regarding the manner in which the collision occurred, plaintiff on direct examination testified as follows:

"On May 3, 1921, I was driving west on the Hillsboro-Festus road. I remember passing a place where there was a spur down from the main line of the defendant railroad. I saw a train backing, going east, just an engine and a car. I was just a little east of the switch. I mean the point of the switch. The engine and car were east of the point when I passed them. That is a switch off of the Frisco. The road runs east and west, and there is a spur from this main line; it runs east and west; `kinds' diagonally like that, east and west. At that time it terminated at the Texaco oil station. This spur runs down to the stockyards, and there is a Standard Oil station there too. These places are all on the south side of the road. All on the south aide of the railroad and on the south side of this street leading from Festus to Hillsboro. From the spur or junction of the spur to where this road crosses this spur I should judge it is about 500 feet. I should judge that the main line is about, from where the spur comes off the main line, I should judge it in 20 feet higher, and that the elevation is something like 20 feet high for a mile. Well, I was going home, and I passed the engine and car just a little east of the spur, and when I got up near the crossing, at that little culvert there, I was running along slow, and I had been running that way, and just before I got to this little culvert I looked around to the back, I just glanced around, and I seen the engine, but I didn't notice the coal car, and when I seen the engine up there I kept on going, and didn't notice any carload of coal coming down there. Did not see anything else. Did not hear any whistle. Did not hear any bell. No signal or warning was given. They said there was, but I never heard it. When I got to the railroad crossing I was knocked off. The carload of coal run into me. It hit the Ford and knocked me about 40 feet I judge. It knocked me and the Ford about 40 feet.

"Q. (by Mr. Terry): I will ask you if there was anything between the engine and you at the time you passed it? A. No, sir.

"Q. Was there anything between you and the engine and the cars at that time, from the time you passed that engine until the car hit you? A. No, sir. * * *"

On cross-examination plaintiff testified as follows:

"Q. You think from this point on the highway up to where it leaves the' main line is about 500 feet? A. 400 or 500 feet, yes, sir: I think so.

"Q. The engine was on the main line when you saw it? A. Yes, sir.

"Q. You were coming from the east going west? A. Yes, sir.

"Q. You say the engine was up on the main line when you were coming along the highway? A. Yes, sir.

"Q. Was it east or west of the switch? A. It was east of the switch.

"Q. How many car lengths do you think? A. Well, there was only one car there.

"Q. That is all you saw? A. Yes, sir; at that time the engine was attached to one car.

"Q. You were in your Ford, and you looked across there and saw the engine? A. No, sir; I saw it coming as soon as I glanced up there.

"Q. Was the engine and the car on the switch? A. No, sir; it was on the main line.

"Q. Where did you look again? A. I looked right at that little culvert, about 25 feet from the crossing.

"Q. You didn't look any more from back there until you were 25 feet from the crossing?

A. No, sir.

"Q. Then you looked back and saw what?

A. I saw the engine.

"Q. Where was it then? A. It was about on the switch, I judge; I don't know exactly.

"Q. Couldn't you see the car between you and the engine? A. No, sir.

"Q. When you looked back you were 25 feet from this crossing and saw the engine. and you didn't see any car? A. No, sir.

"Q. Where was the car? A. On the side of me.

"Q. On the side of what? A. If I was here the car was about here (indicating to his right).

"Q. How do you know? A. I think it was.

"Q. You didn't see it? A. No, sir.

"Q. When you looked back and saw the engine the car was about opposite you? A. No, not quite opposite; it was a little behind the (my) car.

"Q. You didn't see it? A. No, sir.

"Q. How do you know it was? A. By the way it hit.

"Q. That is the only way you know it was? A. Yes, sir.

"Q. You didn't hear it? A. No, sir.

"Q. You didn't see it? A. No, sir.

"Q. You didn't stop your car? A. No, sir; it was going very slowly.

"The car was 20 feet from me if it was even with me. There was a wagon there at the crossing. It was going west, and I was going west. It stopped. It was on the side of the road, and I was on the other side of the road. It was on the side close to the railroad. That was the side I was on until I got to where the wagon was. I didn't have to drive around him. I was right in the center of the road. I guess the road is 30 feet wide. It drove to his left.

"Q. Did you see the coal car up at the engine? A. I didn't pay any attention to what it was hooked onto then.

"Q. When you drove from that point, 400 to 600 feet, down to this point, you never looked any more? A. No, sir.

"Q. Did you have your curtains down? A. Yes, sir.

"Q. Did you have anything to see through?

A. Yes, sir.

"Q. What? A. Isinglass.

"Q. How big a piece? A. I guess about 14 by 14.

"Q. How fast were you driving from the time you saw that engine up there until you got to the crossing? A. Well, if you could go over 12 miles an hour on a road of that kind, I guess I was going about that rate. ...