Willig v. Chicago, B. & Q. R. Co.
| Decision Date | 12 September 1939 |
| Docket Number | 36428 |
| Citation | 137 S.W.2d 430,345 Mo. 705 |
| Parties | WILLIG v. CHICAGO, B. & Q. R. Co. et al |
| Court | Missouri Supreme Court |
Rehearing Denied February 21, 1940, Reported at 137 S.W.2d 430 at 438.
W Wallace Fry and Frank B. Edwards, both of Mexico, and J. A Lydick, of St. Joseph, for appellants.
Hollingsworth & Francis, of Mexico, for respondent.
COOLEY, Commissioner.
The appeal in this case was originally taken to the St. Louis Court of Appeals where it was heard twice. On the first hearing the judgment of the circuit court was affirmed in a unanimous OPINION of Appeals. A rehearing was granted and the judgment was again affirmed, the opinion being written by Bennick, Commissioner, and adopted by the court, but by a divided vote, Becker and McCullen, JJ., concurring and Hostetter, J., dissenting on the ground that he deemed the decision contrary to the decision of this court in Tanner v. Missouri Pac. R. Co., 161 Mo. 497, 61 S.W. 826, and requesting that the cause be certified to this court. Pursuant to constitutional mandate it was so certified here.
After careful examination of the record and consideration of the case we have concluded that said opinion of the learned commissioner of the Court of Appeals, approved and adopted by majority vote of that court, correctly disposes of the questions presented on the appeal and we adopt it as our opinion. It is as follows :
joint appeal to this court has followed in the usual course.
'The accident occurred at a point about four miles east of the city of Mexico, Missouri, where U. S. Highway No. 54 crosses over the track of defendant railroad company.
'The highway runs east and west, and had originally crossed the track, which runs from southeast to northwest, at the railroad grade level.
'In January, 1936, the Missouri State Highway Commission entered into a contract with the railroad company for the construction of an overpass or overhead crossing at the point where the highway crossed the track, and by the terms of the contract was granted permission to enter, or for its contractor to enter, upon the railroad company's premises and right of way for the purpose of completing the grade separation.
'Pursuant to this contract with the railroad company, the highway commission thereafter let the contract for the work to the C. H. Atkinson Paving Company, and work was begun on the job in May, 1936.
'Among the twenty or more men who were constantly employed on the project was the deceased, Clay Willig, who was hired by the Atkinson company as a laborer in August, 1936, and thereafter continued on the job until the following October 15th, when he was struck and killed by defendant railroad company's train.
'The overpass was to be constructed with a framework of steel beams or trusses supported upon concrete piers set in the slab of the original highway at intervals on either side of the track, and with earth filled in at either end of the main span of the overpass so as to permit the gradual elevation of the highway to its new level at the point of the crossing. During the progress of the work there was piling and falsework built in between the piers from the ground up to the floor of the overpass, and extending out, at least on the east side of the track, to a point within five and one-half feet of the nearest rail. This, together with the earthen fill at the end of the span, prevented one walking along the north side of the overpass from seeing the approach of a train from the east until he was within five and one-half feet of the track, although when that point was reached there was an unobstructed view down the track in either direction for a distance of a half mile or more.
'It was shown that during the entire period of the construction of the overpass no trains were regularly scheduled to run past the point during the forenoon, and, in fact, that the only train regularly scheduled to pass the point at any time during the daytime was a local freight which ran from Old Monroe to Francis in the early afternoon, and then made the return trip in the late afternoon. Whatever other trains occasionally went by during the daytime were special trains, of which, so far as the record discloses, there had been but very few during the whole of the time that the work had been in progress.
'Not only was it necessary that the construction company have certain of its equipment stationed on and around the right of way during the progress of the work, but in addition the duties of the men required them 'to go upon and over and along those tracks at all times of the day', and so to the end that they might not 'get slipped up on', arrangements were made, or it at least became the practice, for the railroad company's section foreman to provide them with information as to when any special trains would run. With respect to this feature of the case the most favorable view of the evidence from plaintiff's standpoint was that 'he (the section foreman) always came by on his motor car and told us when any special trains would be through'.
'About 7 o'clock on the morning in question the section foreman at Francis advised the Atkinson company's superintendent that there would be a couple of special trains through 'around noon' or 'about noon', whereupon the superintendent, in accordance with his usual practice in such matters, communicated the information to the men on the job, including Willig, at some time between 7:30 and 8 o'clock.
'About an hour later, or around 9 o'clock, while Willig was working on the north side of the east approach to the overpass, he was directed by his foreman to get a bucket of cement out of the tool or cement house which stood approximately one hundred fifty feet west of the railroad tracks, adjacent to the north side of the west approach to the overpass.
'In response to the foreman's direction, Willig took his bucket, climbed down a ladder on the north side of the east approach, and then upon reaching the ground level walked alongside the overpass towards the track which it was necessary that he cross in order to get to the cement house upon the west side of the right of way.
'As we have pointed out, the earthen fill and the falsework built in between the piers would in any event have prevented him from discovering the approach of a train from the east until he was within five and one-half feet of the track, though the undisputed fact was that even after he reached the point where looking would have been availing, he still did not look either to the east or the west, but instead stepped upon the track with his head down, wholly oblivious to the fact that a train was approaching from the east, and was then only two hundred feet back of him. It was also an undisputed fact that the whistle was being blown and the bell rung, though as it happened Willig was unable to hear either signal on account of the noise which was being made in connection with the riveting of the steel in place in the superstructure of the overpass.
'Instead of immediately crossing the track as he might have done, Willig turned to his right, and started to walk down the track between the rails in the general direction of the cement house. One of the workmen upon the overpass happened to see the train approaching, and realizing that Willig was oblivious to his peril, began to pound upon one of the steel beams in order to attract his attention. Hearing the unusual pounding, Willig glanced back towards the overpass, and becoming aware of his predicament as he did so, attempted to jump off of the track. Unfortunately his foot slipped in his hurry and confusion, and at that moment the train struck him, hurling his body down the track for one hundred thirty feet or more, and producing injuries so severe that he died in a very few minutes thereafter.
'The evidence disclosed that while the regularly scheduled trains always approached the overpass very slowly at a speed of from five to ten miles an hour, the train that struck Willig was running from forty to fifty miles an hour. Incidentally, this train was a special train, made up of fourteen coaches. Whether it was one of the two special trains that the section foreman had stated would be by 'around noon' was not revealed by the evidence. If so, then it came by approximately three hours ahead of the time that Willig had been led to expect its arrival, while if it was some other special train, then the section foreman in this instance had neglected to follow his established custom of 'always' giving the men information as to when any special trains would be through.
'The negligence pleaded and relied upon by plaintiff was the act of defendants in operating the train at a high and dangerous rate of speed under the circumstances of the case, to-wit, about forty miles an hour, as the train approached the point where the overpass was being constructed.
'The joint answer of defendants was a general denial of any negligence on their part, coupled with a plea of contributory negligence on Willig's part in having failed to look and listen for an approaching train before going upon and walking along the track.
'From the verdict and judgment for pl...
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