Strotjost v. St. Louis Merchants' Bridge Terminal Ry. Co.

• Decision Date: 04 January 1916
• Docket Number: No. 14209.,14209.
• Citation: 181 S.W. 1082
• Parties: STROTJOST v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.
• Court: Missouri Court of Appeals

181 S.W. 1082

STROTJOST v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

No. 14209.

St. Louis Court of Appeals. Missouri.

January 4, 1916.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

"Not to be officially published."

Action by Joseph Strotjost against the St. Louis Merchants' Bridge Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

T. M. Pierce, G. T. Priest, and S. P. McChesney, all of St. Louis, for appellant. Robert E. Collins, of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

It appears at the time of his injury plaintiff was driving in Bremen avenue and crossing Hall street, both public thoroughfares of St. Louis. It is said that Bremen avenue runs east and west, while Hall street runs north and south. Defendant maintains some five or six railroad tracks in Hall street at the place in question, and the crossing of Bremen avenue is protected on either side by means of gates, which are raised and lowered by a watchman as the trains happen or not to be passing. Plaintiff was driving his horse and carriage east in Bremen avenue, and approached the crossing of Hall street, where the western gate was closed. On reaching this point he stopped and waited until the gate was open — that is, raised — so as to permit passage to the eastward. While thus waiting, one of defendant's locomotives passed from the north, and crossed Bremen avenue and stopped about 20 feet south of the south line of that street. It is said this engine was on the second or third track from the west in Hall street. On the passing of the engine to the southward, the western gate was raised, and the evidence affords an inference, too, that the eastern gate was raised likewise. Thereupon plaintiff drove forward into Hall street with a view of crossing it, and as his horse came upon the track on which the locomotive was standing, it commenced emitting steam and moving backward to the north toward plaintiff. Plaintiff's horse became frightened from the emission of steam and the movement of the locomotive toward it, and ran forward. Simultaneously with the movement of the locomotive and the emission of steam, the gate on the west of Hall street was closed, and the evidence is that the gate on the east of the street was lowered also. Thereupon, as the gate on the east side was lowered, the horse veered to one side, overturned the carriage, and occasioned the breaking of plaintiff's leg, together with the injuries to the carriage and harness complained of.

It is argued the court should have directed a verdict for defendant because no recovery may be allowed for injuries received on account of the fright of a horse at the usual noises incident to the operation of a railroad. In this connection, it is said that both plaintiff and defendant had a right to occupy the street, and as the evidence shows there was no unusual emission of steam from the locomotive, no dereliction of duty appears on the part of defendant. But obviously the argument is beside the theory pursued for a recovery. No one can doubt that, as a general rule, a railroad company is not liable for injuries resulting from horses becoming frightened upon a highway at the mere sight of trains or of noises necessarily incident to their operation on the road. Such beyond question is the established law where nothing more appears tending to introduce an element of liability. See Culbertson v. St. Louis, I. M. & S. Ry. Co., 178 S. W. 269. But here it appears defendant invited plaintiff to drive upon the tracks when entirely safe, and then created a dangerous situation through commencing the movement of the locomotive some 20 feet away backward toward his horse so as to frighten him. The evidence is that the horse was a tractable and gentle animal and accustomed to crossing at the same point without fright.

An additional element of liability appears in the case in the fact that defendant raised the gates to permit the passage of plaintiff over the tracks immediately before the movement of the...