Wack v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 03 June 1913
• Citation: 157 S.W. 1070
• Court: Missouri Court of Appeals
• Parties: WACK v. ST. LOUIS, I. M. & S. RY. CO.

157 S.W. 1070

WACK v. ST. LOUIS, I. M. & S. RY. CO.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

Rehearing Denied June 17, 1913.

1. RAILROADS (§ 350)—ACCIDENT AT CROSSING —EVIDENCE—QUESTION FOR JURY.

Evidence, in an action for death of plaintiff's husband through negligence of defendant in omitting to close the gates at the street crossing on its railroad, held to present a question for the jury whether decedent was traveling east and came through the open gate onto the crossing from the westward to the place where the accident occurred.

2. RAILROADS (§ 350)—ACCIDENT AT CROSSING —PRESUMPTION.

Since the presumption is where a person came to a number of parallel railroad tracks at a public crossing and passed over the first track to the second, and was standing and waiting for a train on the third track to pass, that he looked and listened before going on the first track, the court cannot say as a matter of law that it was his duty to look and listen again while on the track, as the train was passing.

3. RAILROADS (§ 330)—ACCIDENT AT CROSSING — RELIANCE ON PRECAUTION OF RAILROAD COMPANY.

Since a pedestrian approaching a railroad crossing where gates and a watchman are required by law to be kept has a right to rely, in a measure, on the fulfillment by the railroad company of its obligation to give proper signals of danger, his duty to look and listen before going upon the track is modified where the gates are open and no warning given.

4. RAILROADS (§ 350)—ACCIDENT AT CROSSING — SUFFICIENCY OF EVIDENCE — JURY QUESTION.

Evidence, in an action for death of plaintiff's husband through negligence of defendant in omitting to close its gates at the street crossing, held to present a question for the jury whether the decedent was guilty of contributory negligence.

5. RAILROADS (§ 350)—ACCIDENT AT CROSSING —ACTS IN EMERGENCY—CONTRIBUTORY NEGLIGENCE—JURY QUESTION.

The court cannot say as a matter of law, where the evidence was conflicting, and under the exciting circumstances, that decedent was guilty of contributory negligence by stepping back upon the track when the cry of warning was given, which resulted in his death.

6. RAILROADS (§ 350)—ACCIDENT AT CROSSING — SUFFICIENCY OF EVIDENCE — JURY QUESTION.

Though the uncontradicted evidence of several witnesses was that decedent was intoxicated at a saloon an hour before he was killed, yet the court cannot say therefrom, as a matter of law, that he was incapable of exercising the ordinary care required for his safety in crossing the railroad tracks.

7. TRIAL (§ 140)—QUESTION FOR JURY—CREDIBILITY OF WITNESSES.

In every instance, unless the fact be admitted, the credibility of the witnesses and the weight and value to be given to their testimony is for the jury, even though their testimony be not contradicted.

8. APPEAL AND ERROR (§ 692) — RECORD — QUESTIONS PRESENTED.

Where defendant offered certain court records in evidence which were excluded, and on appeal the records were not made part of the bill of exceptions, their competency could not be considered.

9. APPEAL AND ERROR (§ 231)—STATEMENTS OF COUNSEL—OBJECTIONS—SUFFICIENCY.

When, at the end of a series of statements by plaintiff's counsel, defendant's counsel said he objected to his language, not specifying any particular statement, and the court directed the jury not to consider a certain statement which it thought was the objectionable matter, and to consider only the evidence, there was no error; the objection not being specific enough.

Appeal from St. Louis Circuit Court; Wm. B. Homer, Judge.

Action by Margaret Wack against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green, of St. Louis, for appellant. Thos. J. J. Stanton and David Goldsmith, both of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff, a widow, under the statute on account of the wrongful death of her husband through the negligence of defendant in omitting to close the gates at a street crossing on its railroad. Plaintiff recovered, and defendant prosecutes the appeal.

It appears plaintiff's husband was run upon and killed at the crossing of Barton street, a public thoroughfare in the city of St. Louis, and defendant's railroad tracks. The petition sets forth and counts upon an ordinance of the city requiring railroad companies to install and maintain, at the crossings of all public streets with their railroads, gates to be lowered as a warning to persons in the street when the railroad locomotives or trains are approaching the crossing. The ordinance further requires that such gates shall operate either automatically, or that a watchman shall at all times be in charge, to the end of lowering the gates before a locomotive or train approaches. It is admitted the ordinance prevailed and enjoined on defendant the requirements mentioned, and it appears defendant had installed the gates at Barton street crossing in accordance with the ordinance. The gates were not automatic, and were operated during the daytime by a watchman. But at the time plaintiff's husband came upon the track and was killed— about 10 o'clock at night—no watchman was in charge, and the gates were allowed to be open. At the point in question, defendant maintained several tracks. The evidence tends to prove—that is, it affords a reasonable inference to the effect—that plaintiff's husband came upon the railroad crossing from the west, and was killed on the second track through being run upon by defendant's switch engine, which was moving south, but backwards. The gates on the west side of the railroad track were not closed, and it is to be inferred the decedent walked upon the crossing there, for he was seen upon the crossing as if going east an instant before the locomotive ran upon him.

In approaching the railroad crossing from the west, the first track in Barton street is a switch or side track, and the second the defendant's south-bound main line, while the third is its north-bound main line. Plaintiff's husband was seen at the corner of Second and Trudeau streets, about three blocks north and west of the railroad crossing, on Barton street, from half past 8 to 9 o'clock in the evening. No one mentions having seen him thereafter until an instant before he came to his death on defendant's south-bound main line, or second track. That was about 10 o'clock in the evening, or possibly a few minutes thereafter. All of the witnesses say the night was very dark and stormy. It was snowing and a blizzard prevailed. One and all agree that the wind was high, and it appears that several lights had been extinguished because of the blizzard. One of defendant's witnesses testified that the blizzard prevailed with such force as to put out the street light at the crossing of Barton street and the railroad. It appears that a locomotive and train of cars were moving slowly and backwards to the northward on the third track from the west—that is, defendant's north-bound main line—and that the decedent was standing upon the crossing facing eastward as though he were waiting for the train to pass beyond so he could move forward in Barton street to the east of the track. While thus standing, defendant's switch engine, running backwards also, with its tender foremost, came from the north going south on the second track from the west —that is, the south-bound main line—and ran upon and killed plaintiff's husband. It is quite clear from the evidence in the record —and, indeed, from all of it, that introduced by defendant as well as by plaintiff— that on account of the darkness and the storm it was difficult to discern objects for more than a very short distance. Then, too, it appears the locomotive on the third track, which was pushing a train backwards, was very near the crossing and emitting steam copiously, which, it is said by defendant's switchman, further contributed to obscure the view thereabout. Besides the view being obscured by the combination of the extreme darkness, the prevailing blizzard, which included drifting snow, and the steam emitted from the locomotive on the third track, it is to be inferred the noises afforded by the high wind and the escaping steam impeded the sense of hearing as well. In this situation and in such circumstances defendant's switch engine, running light— that is to say single and alone without cars attached—came from the north, backing down the main line and upon the crossing, according to the evidence most favorable to plaintiff, at about 12 miles per hour. It appears the switch engine carried a headlight on the rear, or south end, of its tender; that is, on the foremost end of the tender as it approached the crossing. But this headlight was an oil light only. The locomotive was not equipped with electric or gas-lights, as is quite usual, and, as before said the street light had been extinguished by the wind and blizzard. However, besides the oil headlight on the south end of the locomotive tender, a switchman stood on either end of the footboard on the south of the tender, each of whom held an oil railroad lantern in his hands. Though it appears plaintiff's husband, the decedent, was standing at the time either in the center of the second track on which the locomotive was approaching or between that track and the third one, awaiting the train then occupying the third track to move out of his way, one of these switchmen on the footboard of the locomotive says he did not see him at all. The other switchman, Yaker, who was standing on the east end of the footboard at the south end of the tender on the engine which ran upon decedent, says that he first saw him when the tender was not more than from three to five feet away. It appears this witness testified at the coroner's inquest the day following the death that decedent was standing in the center of the south-bound main line; that is, the line on which the locomotive...