Wilson v. Terminal R. Ass'n of St. Louis
| Citation | 121 S.W.2d 232 |
| Decision Date | 08 November 1938 |
| Docket Number | 24810 |
| Parties | GLENNA WILSON, (Plaintiff) Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, (Defendant) Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, City of St. Louis. Hon. Thomas L Anderson, Judge.
AFFIRMED.
W.E. Benick, COMMISSIONER.
This is an action for damages for personal injuries sustained by plaintiff, Glenna Wilson, of East St. Louis, Illinois, when an automobile in which she was riding as a guest of the driver collided with a locomotive owned and operated by defendant, Terminal Railroad Association of St. Louis. Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $ 6,500. Judgment was rendered accordingly, and defendant's appeal to this court has followed in the usual course.
The accident occurred at the intersection of Missouri Avenue and Twenty-first Street in East St. Louis, when the automobile, which was westbound on Missouri Avenue, struck defendant's locomotive, which was southbound on the west track on Twenty-first Street.
The negligence pleaded and relied upon by plaintiff as the direct and proximate cause of her injury was the failure of defendant's crossing watchman to have lowered the crossing gates across Missouri Avenue at the approach of the locomotive.
Defendant's answer was a general denial, coupled with a plea of contributory negligence on plaintiff's part, as to which issue was joined by the reply.
Suffice it merely to say that inasmuch as the cause of action accrued in Illinois, the applicable law of that state was duly pleaded by the respective parties as the basis for the determination of the substantive legal questions involved.
Defendant argues as a matter of chief insistence that the court erred in the refusal of its requested peremptory instruction at the close of all the evidence.
The record discloses that the automobile - a Chevrolet coupe - was being driven by one Boyd, who sat, of course, behind the wheel at the extreme left of the seat. Plaintiff was seated in the middle, with one Foley to her right, and a Miss Greenfield seated on Foley's lap.
On the north side of Missouri Avenue from Twenty-first Street east the block is made up of a continuous row of buildings which prevent one approaching Twenty-first Street from the east (as plaintiff and her friends were doing) from seeing up Twenty-first Street to the north for any appreciable distance until the building line is reached. In fact the last building in the block, or the one on the northeast corner of the intersection, is a large two-story brick building, which extends northwardly along the east side of Twenty-first Street for a distance of from 75 to 100 feet.
Directly across Twenty-first Street from this building, or on the northwest corner of the intersection, stands the crossing watchman's tower from which the watchman operates crossing gates erected both to the east and to the west of the tracks, and consisting, in each instance, of wooden bars, the tips of which, when the bars are let down from their respective supports on opposite corners of Missouri Avenue, will practically meet in the middle of the street.
The accident happened shortly after midnight on November 7, 1935. The night was foggy, and earlier in the evening there had been a light mist, though it would appear that by the time of the accident all rainfall had entirely ceased.
Boyd was driving his automobile at a speed of about 15 miles an hour, at which speed he testified that he could have stopped the car in a space of 15 feet. With the lights of his automobile he was able to see at least 30 feet ahead.
Both plaintiff and Boyd knew of the location of defendant's tracks in Twenty-first Street, and also knew of defendant's custom and practice (which was admitted) of lowering the gates across Missouri Avenue whenever a train was to run over the crossing.
As the automobile approached Twenty-first Street on this occasion, the crossing gates were up, a fact which was to be taken by the occupants of the automobile as an invitation to go on across the tracks with the assurance that no train was to be expected. Moreover it appears that neither plaintiff nor Boyd had heard the sound of a bell or whistle at any time before the collision, although one of the windows of the automobile was down, and there had been nothing out of the ordinary taking place to distract their attention.
Plaintiff testified that she never did see the train with which their automobile collided, and of course it is conceded that she made no suggestions to Boyd regarding the stopping of the automobile or the slackening of its speed. Boyd testified that when he first became aware of the danger, he was only 12 feet away from the locomotive, which was then directly in front of him. He immediately applied his brakes, but was unable to stop short of a collision, his automobile striking the side of the locomotive about 10 feet back from the end of the pilot. Plaintiff, Boyd, and Miss Greenfield were injured more or less severely as the result of the collision, while Foley was instantly killed.
Other evidence disclosed that from the wall of the building on the northeast corner of the intersection to the east rail of the southbound track is a distance of 29 feet 8 inches. It was further shown that Boyd had last looked to the north when he was about 25 feet from the tracks, but that not having seen or heard anything to give indication of a train's approach, and with the crossing gates up, he had not slowed down or taken any other precautions against getting upon the tracks.
Defendant contends that even under such evidence, which presents the case most favorably from plaintiff's standpoint, there was still no case for submission to the jury, its theory being that notwithstanding the proof of its own negligence in having failed to lower the crossing gates at the approach of its locomotive, the direct and proximate cause of plaintiff's injury was nevertheless the combined negligence of plaintiff herself and Boyd in having failed to stop the automobile, or cause it to be stopped, short of a collision with the locomotive after they had reached a point from whence they should be charged with constructive knowledge of the train's approach. And aside from this it is contended that plaintiff should in any event be adjudged guilty of contributory negligence as a matter of law, and particularly so in having allowed herself to be driven upon the track with four persons seated in the one seat of the automobile under such circumstances as to have obstructed, or at least have interfered with, the view of Boyd, the driver.
It fortunately happens that we have an Illinois decision which not only declares the applicable law of that state with respect to the matters thus urged by defendant in support of its demurrer to the evidence, but was indeed written in the determination of a companion case necessarily based upon the same essential facts.
It will be recalled that Miss Greenfield, one of the four occupants of the automobile, was also injured in the accident. She brought her action against defendant in the City Court of East St. Louis, and from the judgment rendered in her favor, defendant took its appeal to the Appellate Court for the Fourth District, wherein the judgment of the lower court was affirmed. Greenfield v. Terminal R. Assn., 289 Ill.App. 147.
Under the facts of the case it is obvious that there could be no material difference in the respective legal situations of plaintiff and Miss Greenfield, so that what was said by the Illinois court with respect to Miss Greenfield's right to have had her case submitted to the jury would be equally applicable to the situation of plaintiff herein. In that case, speaking to the questions of proximate cause and contributory negligence, the court said:
To continue reading
Request your trial