West v. St. Louis-San Francisco Ry. Co., LOUIS-SAN

Citation295 S.W.2d 48
Decision Date12 November 1956
Docket NumberNo. 45091,LOUIS-SAN,No. 1,45091,1
PartiesFloyd WEST, Respondent, v. ST.FRANCISCO RAILWAY COMPANY, Appellant
CourtUnited States State Supreme Court of Missouri

James L. Homire, St. Louis, Earl E. Roberts, Steelville, Donnelly & Donnelly, Lebanon, Robert T. Donnelly, Lebanon, David Donnelly, Lebanon, for appellant.

John W. Waller, Sullivan, G. C. Beckham, Steelville, for respondent.

DALTON, Judge.

Action for damages for personal injuries and property damage sustained December 16, 1950, when defendant's eastbound passenger train struck plaintiff's southbound 'pickup' truck on a public crossing in Leasburg, Missouri. The action was instituted August 11, 1954, in the Circuit Court of Crawford County. The cause was submitted solely on negligence under the humanitarian doctrine in failing to warn of the approach of the train or slacken its speed after defendant's trainmen saw or by the exercise of ordinary care could have seen plaintiff in a position of imminent peril of the approaching train. Verdict and judgment were for plaintiff for $16,000 and defendant has appealed.

The cause comes to this writer on reassignment after a motion for rehearing had been sustained and the cause was reargued and re-submitted. Defendant-appellant assigns error on the trial court's refusal to direct a verdict for the defendant at the close of all the evidence and contends that no substantial evidence was presented tending to show that, after it became apparent or should have been apparent to defendant's trainmen that the plaintiff was in imminent peril, the trainmen could have sounded a warning or slackened the speed of the train and have thereby avoided the collision. A statement of the evidence favorable to plaintiff is required. We shall disregard the defendant's evidence unless it aids the plaintiff's case. Wapelhorst v. Lindner, Mo.Sup., 269 S.W.2d 865, 870.

Defendant's main line railroad track extends in an east-west direction through the village of Leasburg and over the public crossing in question. Another track variously referred to as a house track, passing track, switch track or siding is located 8 or 10 feet to the north of the main line track. The road which crosses defendant's tracks at right angles at the place in question, is referred to as Highway 'H'. The crossing was marked by two crossing signs, 'posts with arms.' Defendant's main line track extends straight west from the crossing for some 1300 feet. On the north side of defendant's right of way, north of the passing track and some 150 feet to the west of the crossing, there was a loading chute or dock, some stacked props and a tie pile that, according to plaintiff, 'kind-a obstructed the view.' One of plaintiff's witnesses testified, however, that defendant's trainmen on an approaching engine could have seen over the obstructions and could have seen a truck approaching the crossing, although the obstructions might have interfered with the truck driver's seeing an approaching train, that is, until the truck reached the switch or passing track. Another of plaintiff's witnesses said that the approaching train could have been seen by plaintiff, when the truck was within 35 feet of the main line crossing.

Knight's store was located about 100 feet north of the north rail of the passing track and west of Highway 'H'. Another road extended west from Highway 'H', and along the north side of defendant's right of way. There was a downgrade of 6 or 8 feet from Knight's store to the level of the railroad tracks and the crossing. Defendant's station is located 200 to 300 feet east of the crossing.

Plaintiff's testimony tended to show that he was 55 years of age and resided five miles south of Leasburg; that he was engaged in farming and carpenter's work; that he was in good health, physically strong and able bodied; that his hearing and eye sight were excellent; that he owned a 1940 Chevrolet 'pickup' truck, which was in perfect condition, since he had recently had it worked over; and that at ten miles per hour he could have stopped it in 2 feet, since the minute he stepped on the brake it would stop.

On the afternoon in question, he was in Knight's store and, about 3:30 p. m., he came out of the store and got in his 'pickup' truck with his wife. His truck was parked off Highway 'H' on the east side of the store. He backed out into the highway, turned to his left, started off in low gear and headed south down a 6 or 8 foot grade from the store building to the level of the railroad tracks on the crossing. As he approached the crossing, he didn't stop at any time, but he kept looking to the west for a train. He was quite familiar with the crossing having crossed it thousands of times. He didn't see or hear anything and when he got down 'pretty close' to the track, he looked to the east and saw nothing. When he reached the house or passing track, he took 'a second look' to the west. He also said he looked west about the time he 'was on the first track.' When he reached the passing track, he saw nothing approaching on the west, so he shifted into second gear, quit looking, and started across. He did not look west again. He knew it was time for the afternoon passenger train to appear. He knew the train had not gone by and that it was running late. He was expecting the train to come through, 'that is why I was cautious,' and he had been looking 'practically all of the time.' He crossed the tracks at 8 or 10 miles per hour, not more than 10 miles. He was in his own west lane and he maintained the same speed in going across the crossing.

When he started to drive right on across he heard no bell or whistle or any horn and, if there had been one, he would have heard it. He didn't hear any warning of any kind and didn't see the train until it hit. He further testified that something attracted his attention; and that 'I seen it just a split second. I seen it and it hit just as I saw it * * * I didn't have no time or nothing, just a glance and then it hit.' Plaintiff said 'the cab of the truck' was 'pretty near in the middle of the track' when he first saw the train; and that 'it looked like the cowcatcher hit the right rear wheel.' He further said that, when on the main line track at the point of collision, he could have seen up the track 200 yards to the west. At this time it will be unnecessary to discuss the extent of the injuries he sustained or the amount of the damages to his truck

There was further substantial evidence tending to show that it was a clear, cool day with a temperature of 35-40 degrees; that the sun was shining and low in the west; and that no signals or warning of the approach of the train were given. There was no evidence of any change in the speed of the train before it reached the crossing, except as might be inferred from defendant's evidence that the train stopped with the front of the locomotive at the west end of the station. One of plaintiff's witnesses said he observed no abrupt change in the speed of the train. There was evidence that the train was 'sorta gliding in', 'coasting in'; and that the impact of the engine was on the right hand side of the truck 'on the front end, back as far as the door.' There was also other evidence that the 'impact was on the right rear wheel'; and that the damage was about the rear wheel. Plaintiff's witness fixed the speed of the train at 35 or 40 miles per hour, when it was 300 or 400 feet west of the crossing and further testified at that time the truck was 35 feet from the main line track.

The collision happened on the south side of the main line track, it looked like the train just caught the back end of the truck, 'because it swung around.' The truck came to rest south and east of the crossing. There was other evidence that plaintiff moved across the crossing at the same speed and did not slow up or speed up and that the overhang of the engine and cars was about 1 1/2 feet.

In support of its contention that the court erred in failing to direct a verdict for defendant, appellant insists that there was no evidence adduced to show when it became apparent or should have been apparent to the enginemen that respondent was in a position of imminent peril; and that there was no basis for any finding as to when the enginemen should have discovered that respondent was oblivious to the approach of the train. Respondent testified that when he reached, or was upon the passing track, he satisfied himself that no train was approaching. He then shifted into second gear and proceeded, intending to go over the crossing. On his own testimony, respondent was not in imminent peril until he decided to go on across the crossing. This decision was reached at or on the passing track when he shifted to second gear and started across at an even speed of 8 or 10 miles per hour. Thereafter, he did not look to the west and was oblivious of the danger. Respondent could stop in 2 feet and, as long as he was looking west, with an unobstructed view, expecting the train and had 13 feet or more in which to stop and had not yet decided to proceed on across the crossing, he was not in imminent peril. On the facts stated the trainmen could assume that respondent would discover the approach of the train and stop before reaching the crossing. It was only when respondent ceased to look to the west and proceeded with the apparent intent of entering the path of the train that respondent's testimony would sustain a finding of imminent peril. Peril to be 'imminent peril' under the humanitarian doctrine must be certain, immediate and impending, a mere possibility of injury is not sufficient to create imminent peril. Dister v. Ludwig, 362 Mo. 162, 240 S.W.2d 694, 699.

While respondent's testimony tended to show that he continuously looked west for the expected train as he drove south toward the crossing; and that he took a second look to the west, when he reached or was upon the passing track, there was no evidence that the trainmen...

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