Wolf v. Wabash Ry. Co

Citation212 Mo. App. 27,251 S.W. 441
Decision Date03 April 1923
Docket NumberNo. 18005.,18005.
PartiesWOLF v. WABASH RY. CO.
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by Johanna Wolf against the Wabash Railway Company and another. Judgment for plaintiff against defendant named, and it appeals. Reversed and remanded.

N. S. Brown and Homer Hall, both of St. Louis, for appellant.

W. H. Douglass, of St. Louis, for respondent.

ALLEN, P. J.

Plaintiff is the widow of Frank Wolf, deceased, and prosecutes this action under section 4217, Revised Statutes 1919, to recover damages for the death of her deceased husband, who was struck and killed by a railway train operated by defendants, while he was in the act of crossing the track of defendant railway company at a public street crossing in the city of St. Louis. The suit was instituted against the defendant railway company and its locomotive engineer, one Bickel.

The first assignment of negligence in the petition charges that the servants of the defendant railway company saw the deceased, or by the exercise of ordinary care could have seen him or known of his presence on or near the track, and in a position of peril, in time, by the exercise of ordinary care, to have stopped the train or checked its speed or given him timely warning of the approach thereof by whistle, in time to have warned him of the approach of said train, and thereby avoided any injury to him, but negligently failed so to do, thereby causing his death. The remaining five assignments of negligence are: (1) The alleged negligent failure to give timely warning of the approach of said train to the crossing by blowing the whistle; (2) the alleged violation of certain city ordinances as to erecting and operating gates at the crossing, within 30 days after notice by the street commissioner of said city so to do, and limiting the speed of trains to 6 miles per hour if such notice be not complied With, or, after compliance therewith, to 20 miles per hour, alleging that, though the defendant railway company maintained gates at such crossing, the gates were not lowered upon the occasion in question, and that said train was negligently operated at a rate of speed in excess of 20 miles per hour; (3) the alleged negligent operation of the train at a high and dangerous rate of speed across a public street in a populous city; (4) the alleged negligent failure to keep a lookout at such crossing, where defendants ought to have anticipated the presence of persons; and (5) negligence in failing to lower said gates as a warning to the deceased.

Defendants answered separately, each answer being a general denial, coupled with a plea of contributory negligence on the part of deceased.

The trial, before the court and a jury, resulted in a judgment in favor of plaintiff against the defendant Wabash Railway Company for the sum of $5,000, and in favor of the defendant Bickel. From this judgment defendant railway company prosecutes this appeal. We shall refer to that company as the defendant.

Frank Wolf was killed on the morning of November 1, 1920, at the intersection of Angelica street and a railway track of defendant in the city of St. Louis. Angelica street is referred to as extending east and west, and defendant's track as extending north and south, and we shall so refer to them here, though it appears that north of Angelica street defendant's track extended somewhat west of north, being nearly straight for a distance of perhaps 300 feet, and thence curving slightly toward the west. About 6:30 on the morning of the casualty Frank Wolf was walking east on the south side of Angelica street, approaching defendant's track. The sidewalk on the south side of the street did not extend across the track, and at a point 20 feet or more west of the track, where a telephone pole stood near the street curbing, the deceased, it appears, left the sidewalk and walked into Angelica street, in approximately a northeasterly direction, toward defendant's track. When he had reached the track, and, it is said, had stepped over the west rail thereof, he was struck by a south-bound train of defendant, and instantly killed. On the north line of Angelica street a shed stood about 28 feet west of defendant's track, at or about the corner of which was a telephone pole. North of Angelica street, perhaps 200 or 250 feet, a switch track left the main track on the west side thereof, extending north, and it appears that a car was standing on this switch track, a few feet from the main track, at a point about 300 feet north of Angelica street. The testimony, as a whole, shows that one approaching defendant's track from the west on Angelica street had a view of the track north; after passing the shed mentioned, for a distance of at least 300 feet; while defendant's plat in evidence and the testimony In connection therewith shows that, from a point at the corner of that shed, about 28 feet west of the track, there was a view north along the track, with a car on the switch in the position mentioned above, for a distance of 490 feet, and that, from a point in Angelica street 4 feet west of the track, the view to the north was unobstructed for a distance of 562 feet.

The defendant maintained gates at this crossing, but it appears that they were not operated before 7 a. m., at which time the watchman in charge thereof came on duty, and they were consequently up, i. e. open, when plaintiff's husband went upon the track, though it appears that this crossing was much used prior to that hour of the morning by persons working in industrial establishments located east of the track. The train involved was a local or "accommodation" train, composed of an engine and tender and three cars. The engine was running backwards, with the tender preceding it. The evidence shows that it was a clear day, and that at the time of the casualty it was broad daylight, though there is some testimony as to smoke in the air. The deceased was 54 years of age, and his sight and hearing were good. For about 18 months prior to his death it was his custom to cross the track at this crossing, in going to his work east thereof, at about 6:30 a. m.

One Sneed, a witness for plaintiff, who lived in a house on the south side of Angelica street, just west of the telephone pole on that side of the street, mentioned above, observed the movements of the deceased as the latter approached the track and was struck by the train. He testified that he was standing at the corner of his house when Wolf passed and went from the sidewalk into the street. He said:

"When be passed me he was on the sidewalk, going angling out to the street, because nobody goes straight over the sidewalk to the track. They always cut by the telephone pole and step out into the middle of the street and then go across the tracks. * * * He was fixing to go up on the track, but he stopped just before he got up on the track and tightened his pipe in his mouth. * * * My attention was attracted by a bell ringing. * * * I just looked around and hollered, and I saw Mr. Wolf go up in the air."

He said that he had heard no bell until the ringing of the bell attracted his attention just before Wolf was struck, nor did he hear any whistle prior to that time; that In his judgment the train was running about 35 miles per hour, and when it stopped the rear end thereof was about a block and a half south of Angelica street, and that when Wolf stopped and "shoved his pipe in his mouth" he was about 4 feet from the track. When asked as to when he heard the ringing of the bell with reference to the time when Wolf was struck, he said: "All just about under one. The bell ringing and Mr. Wolf going in the air."

On cross-examination this witness said that, as Wolf proceeded toward the track, he was going in a northeasterly direction; that when he left the sidewalk he was about 20 feet from the track, and reached the track at about the center of Angelica street, and that he stopped at a point about 4 or 5 feet west of the west rail for a second or two only. When asked how long it was from the time when he saw Wolf standing 4 or 5 feet from the track until he observed him on the track and saw him struck, he said, "About two or three seconds, as close as I could judge;" and he said that there was nothing to hide Wolf's view of the track to the north; that the weather was clear and it was daylight. He said that he did not see Wolf look to the north at any time; that the engine was "backing in," pulling the train with the tender ahead, and that he observed the fireman looking out of the window on the west side of the engine. When asked how many feet the engine was away from Wolf when he first saw it, he said, "I couldn't say that it was any at all, because it was just all together;" and he said that when the train hit Wolf the latter "was near the west rail inside of the track"—that is, on the track, being closer to the west rail than he was to the east rail.

One Herman, who at the time of the casualty lived in that vicinity, was on Angelica street, west of defendant's track, walking east. He testified that when he was about 20 feet from the track he saw Wolf, then in the middle of the street, about 6 feet from the track, walking toward and "looking a little to the south"; that he did not see Wolf stop. The witness was on the south side of Angelica street, and he said:

"I looked up north, and I seen Mr. Wolf, and at the same time I seen the train, and I wanted to holler at Mr. Wolf, but just it stuck in my throat."

He further testified that when he was at Broadway, a block and a half from the track, he heard a whistle, but could not tell whether it was the whistle of an engine on this track "or down in the yard." When asked if he heard any other whistle after that, he said:

"No, sir; I heard not any whistle, more than just at the same time Mr. Wolf was struck when the whistle blew and the...

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