Woods v. Kurn
| Decision Date | 05 December 1944 |
| Docket Number | No. 26717.,26717. |
| Citation | 183 S.W.2d 852 |
| Parties | WOODS v. KURN et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court: Joseph J. Ward, Judge.
"Not to be reported in State Reports."
Action by Laura Woods against J. M. Kurn and Frank A. Thompson, as trustees for the St. Louis-San Francisco Railway Company, for personal injuries and for destruction of a motor truck. Judgment for plaintiff, and defendants appeal.
Affirmed.
M. G. Roberts, A. P. Stewart, and C. H. Skinker, Jr., all of St. Louis, for appellants.
Al. F. Gerritzen and Ben Boxerman, both of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action for damages growing out of a railroad crossing accident in which plaintiff, Laura Woods, sustained serious personal injuries, and in addition suffered the complete destruction of her Chevrolet truck. The defendants are J. M. Kurn and Frank A. Thompson, trustees of the St. Louis-San Francisco Railway Company, upon whose tracks the accident occurred. Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendants, in the sum of $6,500. Judgment was rendered in accordance with the verdict; and defendants' appeal to this court has followed in the usual course.
The chief difficulty at this stage of the proceeding is due to the fact that while the evidence was largely directed to the question of whether the crossing signal was operating, and of whether warning signals were given by bell or whistle from the approaching locomotive, all such matters were abandoned in the submission of the case, and instead plaintiff went to the jury upon the sole issue of negligence under the humanitarian doctrine in having failed to slacken speed. All questions of primary negligence are therefore out of the case; and our only concern on this appeal is the sufficiency of the evidence upon the single issue submitted, both as against the demurrer at the close of the case, and also as a basis for plaintiff's instruction No. 1.
The accident happened at the point where Old Orchard Avenue crosses the railroad company's tracks in Webster Groves, Missouri.
The tracks, which are three in number, run east and west, and are slightly upgrade from east to west. The track to the north is the westbound main line; the center track, the eastbound main line; and the track to the south is a team track which serves business establishments in that vicinity. The two main lines are uniformly 17 feet 5½ inches apart from rail to rail, while the team track, at the point of the crossing, is 16 feet 9½ inches south of the center or eastbound track. Each track is of course standard gauge, or 4 feet 8½ inches inside the rails; and the entire crossing is therefore 48 feet 4½ inches in width, measured from the outer rail of the team track to the outer rail of the westbound main track. As a matter of fact, however, the distance is slightly greater for a vehicle going across the tracks over the traveled portion of the crossing, since Old Orchard Avenue, though running generally north and south, actually crosses the tracks, not at a right angle, but at an angle of about 70 degrees from northeast to southwest at that particular point.
From the Old Orchard Avenue crossing the main line tracks run straight to the east for a distance of 1,326 feet, where they pass under the Laclede Station Road viaduct or overhead crossing. As will be presently seen, the location of such viaduct is of importance in the case as marking the extreme point at which the fireman at least might have first caught sight of plaintiff's truck in the course of its approach to the ultimate point of the collision.
Plaintiff was sixty-six years of age at the time of the accident on October 25, 1941, and for the sixteen years that she had been a widow had maintained herself by the operation of a small laundry in her home at 218 Albert Avenue in Webster Groves. She made regular use of her truck in connection with her laundry service, and had had occasion to drive over the Old Orchard Avenue crossing for approximately twice a week during the whole period of time that she had been engaged in the operation of the laundry.
The train which figured in the collision was a passenger train known as the General Wood, which had been put in operation by the railroad company for the primary purpose of serving the military personnel at Fort Leonard Wood, which is located near Newburg on the company's line. The train was ordinarily made up of a locomotive and six or seven coaches, and was for the most part devoted to the transportation of soldiers and their relatives between the army post and the City of St. Louis.
The particular train was a westbound train, which was due at the Old Orchard Station at 9:03 in the morning, but on the morning in question was some twelve minutes late.
Plaintiff was driving northwardly on Old Orchard Avenue, and approached the tracks from the south, coming first to the team track, where she stopped a few feet from the outer rail, and looked in both directions for an approaching train. Incidentally, she was aware of the schedule of the General Wood which she had observed "lots of times", and assumed from the fact that it was then 9:15 o'clock that the General Wood had already passed over the crossing.
The electric automatic signal stood on the northwest corner of the intersection, and was so designed as to be put in operation whenever the wheels of an approaching train passed over the circuit in the rails at the extreme point of contact on either side of the crossing.
Plaintiff testified that the crossing signal was silent, but that being unable to see to the east because of a coal car standing on the team track some 30 feet east of the crossing, she started up and drove across the team track in order to clear the coal car, and again came to a "dead stop" just off of the team track, with the front of her truck still south of the eastbound main track. From this position she had an unobstructed view to the east; and as she looked in that direction, she discovered the approach of the General Wood, which, at the moment she first saw it, was "a little east" of the Laclede Station Road viaduct, and was running at a speed which she estimated at 50 or 60 miles an hour.
Concluding that the train was far enough away that she could "make it" across the tracks, she started up from her "dead stop"; proceeded over the crossing at a speed of 5 to 10 miles an hour; and had in fact practically crossed the westbound track upon which the train was approaching when she glanced to her right and saw the train bearing down upon her at unabated speed. Appreciating the imminence of her peril, she attempted to accelerate the speed of her truck, and had actually cleared the path of the train except for the rear 2 feet of her truck, when the right front pilot step of the locomotive struck the right rear fender of the truck, causing the truck to be driven up against a telegraph pole on the northwest corner of the intersection, where it was left a total wreck. The train was stopped with the last coach west of the crossing, and was then backed up entirely east of the crossing, where it remained for about an hour until the necessary steps could be taken for it to continue on its run.
As for the vital question of slackening speed upon which liability was ultimately made to depend, plaintiff testified that "if they had slowed up any", she could have "beat it across", which was of course entirely obvious as a physical fact in the case. Neither side offered expert evidence upon this issue; nor was any member of the train crew called to testify. While it was shown that the engineer had died before the trial, the fireman was still in the employ of the company, but was not put upon the stand, notwithstanding the fact that his position on the side of the locomotive from which plaintiff's truck approached the track would have seemingly made him a most material witness. Other employees did testify, however, among...
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