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

• Decision Date: 06 February 1934
• Docket Number: No. 22212.,22212.
• Parties: WERNDLE v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

67 S.W.2d 810

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

No. 22212.

St. Louis Court of Appeals. Missouri.

February 6, 1934.

Rehearing Denied February 21, 1934.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be published in State Reports."

Action by Amelia Werndle, administratrix of the estate of Howard J. Werndle, deceased, against the St. Louis-San Francisco Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

E. T. Miller, A. P. Stewart, and C. H. Skinker, Jr., all of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

SUTTON, Commissioner.

Plaintiff brings this action as administratrix for the wrongful death of Howard J. Werndle, who was killed in a collision between an automobile he was driving and defendant's train, at the intersection of Gratiot avenue and defendant's tracks, in the city of Shrewsbury, in St. Louis county.

The trial, with a jury, resulted in a verdict and judgment for plaintiff for $3,000, and defendant appeals.

Defendant assigns error here for the submission of the case to the jury under the humanitarian rule on the hypothesis that the defendant in the exercise of ordinary care could have avoided the collision by checking the speed of the train, insisting that the evidence does not warrant such submission.

The collision occurred on September 17, 1928. Gratiot avenue is a public street in the city of Shrewsbury, and runs in a northerly and southerly direction. It crosses defendant's tracks a short distance east of defendant's station at Shrewsbury. At this location defendant had two tracks which ran in an easterly and westerly direction crossing Gratiot avenue at right angles. The north track was used by trains operated in a westerly direction, and is referred to in the testimony as the outbound track. The south track was used by trains operated in an easterly direction, and is referred to in the testimony as the inbound track. The collision occurred shortly before 11 o'clock in the morning on September 17, 1928. It was a clear, dry, sunshiny day. Defendant's passenger train, consisting of a locomotive and eight cars, was being operated in an easterly direction on the inbound track. The deceased was operating a large five-ton motortruck on Gratiot avenue in a southerly direction. Gratiot avenue approaches the railroad tracks at this point on an ascending grade. The deceased, as he approached the crossing, driving the truck, had a plain and unobstructed view of the approaching train after he arrived at a point thirty-five feet north of the north rail of the inbound track, and the fireman, who was on the left side of the cab of the locomotive, had, of course, a plain and unobstructed view of the truck as it approached the track.

The crossing was protected by an automatic signal bell located at the southeast corner of the crossing. It was demolished in the accident. The witnesses for the defendant testified that this crossing bell was ringing as the train and the truck approached the crossing. Plaintiff's witnesses testified that it was not. There was also a conflict in the testimony as to the sounding of the whistle and ringing of the bell on the locomotive.

There was evidence that the train was running thirty-five miles per hour as it approached the crossing.

Walter C. Schmitt testified for plaintiff that the truck was traveling at a very low rate of speed, at three, four, or six miles per hour at the highest, as it approached the point of collision; that at the time of the collision the truck lacked two or three feet of clearing the track; that, if the truck had gone two or three feet further, it would have been out of the way of the collision; that in his judgment the truck could have been stopped in about ten or twelve feet.

Mrs. Lulu Brown testified for plaintiff as follows: "On September 17, 1928, I lived in the house that stands on the southwest corner of the intersection of Gratiot and the Frisco Railroad tracks, within about three hundred feet of the intersection. I saw the collision occur. I was at the north window of my house. When I first walked to the window, the train had not yet gotten to the point where I could see it. I usually went to see those fast trains pass. I knew that particular train was passing because I heard the whistle down at Wilshusen, which is about a half mile from Gratiot. There was no signal of any kind given by the train as it approached the crossing. I saw the train travel about three hundred feet before the collision occurred, around three hundred feet, and west of three hundred feet, the position I was standing to get my view. The truck, when I first saw it, was entering onto the south track. The truck was almost across the track when the train hit it. I mean the back end of the truck was nearly across the track when the train struck it. About two or three feet more would have put it across. When the collision occurred, the motor and machinery of the truck went on down the embankment near the crossing, and the bed of the truck was thrown about a hundred feet or more. The train ran about seven or eight hundred feet past the crossing before it stopped, that is the back end of the train was seven or eight hundred feet from the crossing when it stopped. I saw sparks flying from the rails, which I imagine was caused by the application of the brakes. I did not see the sparks before the collision occurred. I saw them just about the time the collision occurred, just past the place of the collision. I don't think the train slowed down at all from the time I first saw it until it struck the truck. I saw the truck as it was on the last track south. The train was then about three hundred feet west of the crossing."

Dan C. Thompson testified for plaintiff as follows:...