Sublett v. Terminal R. Ass'n

• Decision Date: 30 December 1924
• Docket Number: No. 23513.,23513.
• Citation: 267 S.W. 622
• Parties: SUBLETT v. TERMINAL R. ASS'N.
• Court: Missouri Supreme Court

267 S.W. 622

SUBLETT v. TERMINAL R. ASS'N.

No. 23513.

Supreme Court of Missouri, in Banc.

December 30, 1924.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Florence Sublett against the Terminal Railroad Association. Judgment for plaintiff, and defendant appeals. Reversed and remanded for further proceedings.

J. L. Howell, S. P. McChesney, and Richard C. Beckett, all of St. Louis, for appellant.

W. H. Douglass, of St. Louis, for respondent.

JAMES T. BLAIR, J.

In an action she brought for damages for the death of her husband, respondent recovered judgment for $10,000, and this appeal followed. The cause " was heard in division 1. The opinion prepared did not receive the concurrence of a majority of the judges, and a transfer to court en banc resulted. En banc the case was reargued and the divisional opinion adopted. On further consideration a motion for rehearing was sustained.. There was a second argument en banc at this term.

Sublett was an employee of the American Railway Express Company, and had been for some two years prior to his death. At the time of his death and for several months theretofore, it was his duty to aid in loading express cars in the St. Louis Union Station. While engaged in this employment on September 16, 1920, he was struck and killed by a baggage car which was being pushed in under the Union Station shed by one of appellant's engines.

In the Union Station shed there are 32 parallel tracks which extend north and south. They are numbered consecutively from the west, on the Twentieth street side, to the east. Tracks 1 and 2 constitute a "pair," as do tracks 3 and 4, and so on for the 32. The space between any pair of tracks is relatively small. It appears that when moving cars occupy both of such tracks it is questionable whether a man of ordinary size could escape injury if he attempted to stand between them. Between each pair of tracks there is a space or platform 8 or 10 feet in width, and these platforms are used for loading cars and, part of them, used by arriving and departing passengers. These platforms run north and south. Some 180 feet north of the south end of the train shed there is a crosswalk about 40 or 45 feet wide, which is used a great deal in connection with the loading of mail and express. A large number of employees in the mail and express services work in the Union Station, as do railroad employees. It is a busy place, and the busiest hours are from 7 to 9 in the morning. It was during this rush period at about 8:30 a. m., that Sublett was killed.

The allegations of negligence are:

"First. That the defendant or its employees in charge of the train which struck deceased saw deceased, or by the exercise of ordinary care could have seen deceased, in a position of danger of being struck by the train or cars in time, by the exercise of ordinary care, to have stopped the train or cars or checked their speed or given warning to deceased of the approach of said train or cars, and thereby avoided the injury and death of deceased, but negligently failed to do so, thereby causing the death of deceased.

"Second. That the defendant knew, or by the exercise of ordinary care could have known, that persons were at work under the shed, and that their duties required them to be on the walkway and crossing defendant's tracks and in a position of danger of being struck by a train or cars if run over the walkway unless warned of the approach of the train or cars, and had defendant exercised ordinary care for the safety of deceased and other persons at work under the shed and on the walkway, it would have had some one stationed on the end of the train backing into the station and over the walkway to give warning of the approach of said train or cars, but negligently failed to do so.

"Third. That the defendant knew, or by the exercise of ordinary care could have known, that employees were apt to be on the walkway crossing the tracks, and had defendant exercised ordinary care for the safety of deceased or other employees who might be or were apt to be on said walkway, it would have blown its whistle or given some other timely and adequate warning to have warned deceased or other employees of the approach of said train, and thereby avoided any injury to deceased, but negligently failed to do so.

"Fourth. That the defendant knew, or by the exercise of ordinary care could have known, that persons were working under the shed whose duties required them to be on the walkway and crossing over the tracks on said walkway, in a position of danger of being struck by a train running under the shed, unless warned of its approach; and had defendant exercised ordinary care for the safety of deceased and other employees whose duties required them to be on said walkway, and on or crossing over the tracks, and in a position of danger of being struck by a train or cars, it would have adopted some reasonably safe method or system of signals or warning to warn persons at work under the shed and on said walkway of the approach of trains to said walkway, but negligently failed to do so, thereby causing the injuries and death of deceased."

The answer consists (1) of a general denial; (2) a plea that Sublett's death was "caused by his own carelessness, in this, that he stepped onto the railroad track or so close to a railroad track as to be struck by a moving car thereon without having looked or listened for the then approaching car or train of cars, when by so looking or listening, and while he was still in a place of safety, he could have seen or heard such approaching car or train of cars in time to have avoided injury"; and that his death was "the result of his own carelessness and negligence in stepping upon or so close to a railroad track as to be struck by an approaching car or train of cars when the said car or train of cars was so close that the accident was unavoidable."

There is such a difference of opinion concerning the. evidence in the case, and the facts it tends to prove, that the, case is one which, on this account, requires a detailed statement of the evidence offered. Respondent offered herself and three others as witnesses. Her testimony did not deal with the accident and need not be detailed. She called Hugh B. Watkins and offered to prove that a safety committee had, previous to September 16, 1920, recommended to appellant the installation of a system of safety signals for the purpose of giving warning of the approach of trains and cars, to those using the cross-walk. This was excluded.

W. K. Orr testified he had been in the employ of the government for eight years, and for about six months prior to the day Sublett was killed it had been his duty to supervise the loading, unloading, and transfer of mails at the St. Louis Union Station; that this work was done all over the station; the cars were loaded and unloaded under the train shed and wherever they were backed in; that he remembered the occasion when Sublett was struck, but did not see Sublett get hit. He described the train shed, crosswalk, and layout of tracks. He testified Sublett was run over by cars which were backed in on track 5; that the car which injured him was "partially over the platform when the train stopped." He identified a pen and ink diagram of the tracks, crosswalk, and platform under the train shed, and testified to distances, directions, and conditions. He said the crosswalk, on or near Which Sublett was struck, was "at least 30 feet" wide, and that it crossed all the "day tracks," which included 5 and 6; that it was about three car lengths from the south end of the shed. He said he saw the cars which injured Sublett when they were 10 or 12 feet south of the south line or side of the crosswalk, "ready to cross the platform; that he (witness) was going along the crosswalk, and. was "just ready to cross track 5," when he saw the cars; that he was nearer the south than the north side of the crosswalk, and that when he saw the cars they were running north on track 5; that there was no one on the approaching end of the car, and he heard no signal or warning of any kind given by any one with the moving ears and engine, and heard none before he heard Sublett cry out; that he was between tracks 6 and 7 when he heard that; that he did not go over to the injured man. He further testified that the hour was between 8 and 9 a. m.; that "quite a number," at that time of day, customarily used the crosswalk to pass back and forth over tracks 5 and 6; "I couldn't make an estimate of that; there is always a bunch coming and going with trucks during that hour, and you would have no way of estimating how many it is." He said he did not know how many worked under the shed and used the crosswalk; but when asked if there were as many as a hundred, he replied: "Oh, yes; there are that many." He stated that all trains which backed into the station had "a signal on the rear, and a man to handle the whistle signal" as they backed in. but that the engine and cars whose movement killed Sublett he did not "consider a train; this is what they call a drag; a couple of cars and an engine." He said the engine was attached to the south end of the "drag," and that it was moving horth "much faster than an ordinary walk"; that at the time he approached track 5 "Wabash three train" was on track 6; that this train had been "cut" so as to leave the crosswalk open: that the open space was "the length of the boardwalk."

"Q. Did you see or observe the car at the edge of the walk, or the north side of the walk, on track 6? A. Yes, sir.

"Q. Do you know at this particular time whether or not there was any person about that car on the outside? A. No, sir; I seen nobody around that car.

"Q. Now, where were you at this time with reference to track 5, when you observed this car? A. Coming over from the west end of the station to track 7.

"Q. But when you observed the car on track 6 the last time, where were you? A. I...