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

• Decision Date: 02 March 1926
• Docket Number: No. 18906.,18906.
• Parties: WHITLOW v. ST. LOUIS-SAN FRANCISCO
• Court: Missouri Court of Appeals

282 S.W. 525

WHITLOW v. ST. LOUIS-SAN FRANCISCO

No. 18906.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Rehearing Denied April 6, 1926.

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

"Not to be officially published."

Action by Hugh Whitlow against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, E. T. Miller, and A. P. Stewart, all of St. Louis, for appellant.

James T. Dolan and W. H. Douglass, both of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff while a passenger on defendant's train en route from the city of St. Louis to the city of Cape Girardeau on September 1, 1922. The train was wrecked by the fall of a bridge over Starland creek just north of Cape Girardeau and south of Seventy-Six, and the plaintiff thereby received the injuries for which he sues.

The petition alleges that:

"Plaintiff was a passenger on defendant "s train, and that while the train was crossing over said bridge, the bridge gave way and caused the train to fall and severely and permanently injure plaintiff, * * * and that the injuries to plaintiff were directly caused on account of the fall of the bridge caused by defendant's negligence."

The answer denies the allegations of the petition, and sets up by way of special defense a release given by plaintiff in consideration of $1,000 paid him by defendant. The reply charges that the release was procured by fraud.

The cause was tried to a jury. There was a verdict and judgment for plaintiff for $6,430. The defendant appeals.

The evidence for the defendant tended to show that the bridge which collapsed and caused the wreck of defendant's train was supported by eleven pile bents; that these bents consisted of clusters of piling driven side by side at right angles to the track; that there were six pilings in each bent; that the bents were spaced lengthwise of the track 14 feet apart from center to center; that two of these bents (Nos. 5 and 6) near the center of the creek, were washed out by a violent rainstorm, leaving the bridge unsupported for a space of about 42 feet between the remaining bents; that the rainstorm occurred during the night, commencing about 10:30 o'clock; that the train, southbound, ran onto the bridge and was wrecked by the fall of the bridge about 3:55; that the superstructure of the bridge collapsed at the place where the two bents of piling had B. H. been washed from beneath it, and several coaches of the train, including the coach in which plaintiff was riding, fell 35 to 40 feet to the bed of the creek below.

Witnesses for the defendant testified substance as follows:

S. T. Lippard:

"I am a locomotive engineer in the employ of the St. Louis-San Francisco Railway Company. I was in charge of the locomotive on the train that was wrecked, as engineer. As we were proceeding south after leaving St. Louis, my train did not run into any storms or rains as we were going down the road. My train stopped at the station of Seventy-Six about 3:45 or 3:50 on the morning of September 1st. My train afterwards ran through a bridge near Starland about two miles south of Seventy-Six; that must have been about 3:55 or 3:57 in the morning. The train was being operated in the usual manner as we approached the bridge. As my train was approaching this bridge and ran onto the bridge, it was running about 45 miles an hour. The track is straight for possibly a quarter of a mile to the north of the bridge. The bridge itself is on a straight track. I observed that bridge as I approached it that morning, and everything looked to be in its place. In my position on the locomotive, I could see only the rails and ties and the guard rails and the decking of the bridge — that is, the top surface of the bridge. I observed nothing unusual in the appearance of the bridge as I approached it. I was looking squarely at it, and it looked to be all right. As my locomotive was passing over the bridge the first thing that came to my attention or observation, the first warning I had, was that the front end of the engine took a downward move and right up again, a kind of a loop the loop, and the rear end of the locomotive went down as the front end went up, and as the rear end went down it knocked all the lights out, and that is the last that I knew until I was thrown out of the cab on the south side of the creek. Up to the time we reached this bridge and the wreck occurred the only indication thereof was that there had been some rain falling, and a very little, up to the time we ran into the station at Seventy-Six, and it wasn't raining when we arrived there. It was not raining at the time we arrived at the bridge when the wreck occurred. Menfro is seven miles north of Seventy-Six. We stopped there. I did not see any evidence of heavy rain there, .but there seemed to be a light shower along there. We never struck any rain until we got to McBride, about seven or eight miles north of Menfro. There was nothing to indicate there that a heavy rain had fallen. There is a creek or branch at Seventy-Six over which there is a trestle or bridge. I noticed that creek as I passed over it, and the water was running down through there, a very small amount at that time. I did not observe anything to indicate that there had been high water there — nothing more than usual. As we went on down to Starland, I did not see anything along there to indicate that there had been an excessive rain. The rain had preceded us. I never noticed any evidence of a heavy rain. I saw evidence of rain. The ground was wet, and the track was wet."

E. H. Getting:

"I was locomotive fireman on the wrecked train. As the train proceeded south from St. Louis the weather condition showed signs of having a small rain from St. Mary's to Seventy-Six. We noticed a little shower, which looked like it didn't amount to much. St. Mary's is 20 miles north of Seventy-Six. From St. Mary's on south I observed evidence of small showers. I did not observe evidence of heavy rains. Our train was something near 3 hours and 45 minutes late reaching Seventy-Six that night. Our train stopped at Seventy-Six that morning. It first stopped at the water tank north of the depot, and then pulled down to the passenger stop. We then proceeded southward, and did not stop any more until we reached the Starland bridge. I saw the deck of the bridge, the surface of it, as we approached it, and it looked at good condition to me. I did not see anything unusual about it. When our engine first hit the bridge the engine dipped down on the front end, and then the front end went up and the rear end down, and then the engine turned over to the left side, which was on the east side, south of the bridge, and the train was wrecked there at the bridge. The locomotive got entirely across the bridge. That branch was about 35 feet deep at that time from the rails down to the rocks. At the time of the wreck there was no dirt in the extreme bottom of the creek. It was solid rock. Previous to this night there was dirt in the bottom of the creek, and I judge it was about 25 feet from the rails down to the dirt. I would judge it was something near 21 feet from the bottom of the stringers to the dirt at the bottom of the creek. Before this night there was not usually any water in the creek, not to amount to anything. It was a small creek, and didn't run very much water. It sloped from the center of the creek out on each side, and the bed of the creek at the bottom was about 5 or 6 feet wide according to my estimate. The bank sloped up something like a V shape. The bridge was something near 135 feet long and spanned this creek. It was about 135 feet from the top of the bank of the creek on the north side to the top of the bank on the south side."

F. D. Hoensbeen:

"I am train dispatcher for the Frisco at Chaffee, Mo. As train dispatcher I received reports from our telegraph operators along the division between Chaffee and St. Louis as to weather conditions. I was on duty on the night of August 31st until 12 o'clock. Up until 12 o'clock I received no reports from operators north of Chaffee of any unusual occurrences or unusual rain. I went off duty at 12 o'clock that night, and was succeeded by Frank Morgan as train dispatcher."

Frank Morgan:

"I am train dispatcher for the Frisco at Chaffee, Mo. I went on duty one minute after 12 o'clock on September 1st. As train dispatcher I received reports on the morning of September 1st from operators north of Chaffee as to weather conditions. The reporting stations are St. Louis, Crystal City, St. Genevieve, and Chaffee, and when we have rains or snows or anything like that all the stations tell us about it. On this morning I canvassed the stations all along between 1 and 2 o'clock and found they had had a general rain, and about 1:30 or possibly a little later the operator at Seventy-Six reported rain of a duration of about 20 or 30 minutes. I received reports from St. Louis, Crystal City, and St. Genevieve. I did not at any time after I went on duty that morning receive any report from any point north of Chaffee as to a violent storm or heavy rain."

F. E. Huntsinger:

"I was employed as telegraph operator at Seventy-Six when this wreck occurred on September 1, 1922. I went on duty at one minute after 12 o'clock midnight. At the time I went on duty the weather conditions around Seventy-Six were cloudy and threatened rain. I reported the weather conditions to tie train dispatcher at about 1:30& mdash; that it was raining and had rained hard for 20 minutes. It rained pretty hard for about 20 minutes, and the rest of the time was just an ordinary shower. I don't remember how long that rain continued, but I think a couple of hours. It was very cloudy, and the clouds looked heavier to the south. Starland bridge is south of Seventy-Six."

Claus Stueve:

"I live 2½ miles northeast of the ...