Yonkers v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 07 April 1914
• Docket Number: No. 13575.,13575.
• Citation: 182 Mo. App. 558,168 S.W. 307
• Court: Missouri Court of Appeals
• Parties: YONKERS v. ST. LOUIS, I. M. & S. RY. CO.

168 S.W. 307

182 Mo. A. 558

YONKERS v. ST. LOUIS, I. M. & S. RY. CO.

No. 13575.

St. Louis Court of Appeals. Missouri.

April 7, 1914.

On Motion for Rehearing, July 2, 1914.

1. RAILROADS (§ 350)—CROSSING ACCIDENTS —QUESTIONS FOR JURY—CONTRIBUTORY NEGLIGENCE.

In an action for injuries sustained by a person who drove in front of an approaching train upon a crossing where, though gates were maintained, no watchman was kept to open and close them, as required by ordinance, except during a part of the day, evidence held to make a question for the jury as to plaintiff's freedom from contributory negligence.

2. RAILROADS (§ 308)—CROSSING ACCIDENTS —GATES—VIOLATION OF ORDINANCE.

The violation of a city ordinance, requiring railroad companies to erect gates at all street crossings, and, unless opened and closed automatically, to keep a watchman to open and close them, who should close them immediately before the passage of any train, was negligence per se.

3. RAILROADS (§ 330)—CROSSING ACCIDENTS —CONTRIBUTORY NEGLIGENCE—RELIANCE ON PRECAUTIONS BY COMPANY.

The maintenance of gates at a railroad crossing, which were open at the time, constituted an invitation to a traveler to pass over the tracks, and while this did not relieve her of the duty to look and listen, and she could not go blindly and heedlessly upon the tracks, her duty to look and listen was greatly modified.

On Motion for Rehearing.

4. EVIDENCE (§ 588)—WEIGHT OF EVIDENCE MANIFESTLY FALSE OR CONTRARY TO PHYSICAL FACTS.

The court is not bound by testimony demonstrated to be false by the other facts in the case, or so utterly opposed to the physical facts as to be utterly unworthy of belief.

5. NEGLIGENCE (§ 135)—CONTRIBUTORY NEGLIGENCE —SUFFICIENCY OF EVIDENCE.

To defeat a recovery for a flagrant violation of a law or municipal regulation resulting in an injury, contributory negligence must be clearly made out.

Reynolds, P. J., dissenting.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Maggie Yonkers against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed, and certified to Supreme Court.

James F. Green, of St. Louis, for appellant. Edward W. Foristel and A. R. Taylor, both of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff by reason of a collision of defendant's train with a wagon in which plaintiff was riding, at a street crossing in the city of St. Louis. Plaintiff recovered, and the defendant prosecutes the appeal.

Defendant's tracks pass through the southern portion of the city of St. Louis, crossing Broadway, a public street in said city. At this point such tracks extend nearly east and west; Broadway extending north and south. Two tracks were here maintained by the defendant, at the time in question, one, the south track, for the use of east-bound trains, and the other, the north track for the use of west-bound trains; and at the southeast corner of the intersection of such tracks and the aforesaid street the defendant maintained a passenger station. Along Broadway were double street car tracks crossing defendant's tracks.

At the time of plaintiff's injury the defendant maintained gates or guards at such crossing, intended to be lowered across Broadway upon the approach of a train. It seems that the defendant then maintained a watchman at said place to lower such gates or guards, upon the approach of a train, only during the day, and not after 7 o'clock in the evening; that such gates were sometimes lowered at night by a police officer when trains were passing, but that after 7 o'clock p. m. no one was charged with such duty. Plaintiff was driving a covered spring wagon, drawn by two horses, and proceeding south along Broadway on the evening of June 4, 1909, between 8:30 and 9 o'clock p. m. The gates had not been lowered, and plaintiff drove upon defendant's south or east-bound track, when the team and wagon were struck by an east-bound passenger train of defendant, inflicting upon plaintiff the injuries for which she sues.

The petition alleges that the defendant was negligent in having such gates or guards elevated at said time, whereby plaintiff was invited to drive over its tracks. And an ordinance of the city of St. Louis is pleaded requiring every corporation running or operating engines or cars propelled by steam power across any street in said city, used for wagon travel, to erect a gate or gates, and, unless the same are opened and closed automatically, to keep a watchman to open and close the same, who shall close them immediately before the passage of any engine, car, or train of cars. And it is averred that the defendant did construct and maintain such gates, but that the latter did not operate automatically, and that defendant neglected to provide a watchman to lower the same before the passage of the train which caused plaintiff's injuries.

A further assignment of negligence consists of the alleged failure of the defendant to cause the bell upon its engine to be constantly sounded while such engine was moving within the city of St. Louis, in violation of an ordinance of said city. And it is further alleged that defendant negligently failed to cause such bell to be rung 80 rods from said crossing and to be kept constantly ringing until such engine should pass the crossing in violation of the statute. Section 3140, Rev. Stat. 1909.

The answer is a general denial, coupled with a plea of contributory negligence.

Plaintiff lived upon a farm with her husband near the city of St. Louis, and had for many years been engaged in delivering fruits, vegetables, etc., to persons in such city. Upon the evening in question it appears that she was driving south along the western side of Broadway, and that, in order to deliver some berries on the east side of the street, she crossed over the double street car tracks and stopped her wagon near the east curb, approximately 100 feet west of defendant's railroad tracks, though there is some confusion in the testimony as to the movements of the wagon prior to the collision. It was raining, and it is said that the night was dark and foggy. Plaintiff testified that, after delivering her berries on the east side of Broadway, she stopped to put covers on her horses; that she then looked and saw that the gates were open, and thereupon proceeded to drive south toward defendant's tracks; that upon approaching the latter she looked both to the east and to the west, but did not see the train approaching from the latter direction. The wagon in which she was riding was equipped with curtains at the sides and rear, which, it seems, were down at this time. Plaintiff testified that she sat upon a seat at the front of the wagon, with her feet outside of the latter. It appears that there was a small glass in the curtain immediately to the right or west of the seat upon which plaintiff says she was sitting, through which she could look to the west.

With respect to driving upon defendant's tracks, plaintiff, on direct examination, testified in part as follows:

"A. I put the horse covers over my horses and got on the wagon and started on my way home. I listened and I didn't hear no bell, nor I didn't hear anything, and I went on my way. I saw the poles up (that is, just a short distance away from where I started I saw the poles up), and when I approached the track I listened again, but I didn't hear anything, nor I didn't see anything, so I started across; I thought when the poles were up I was safe. * * * When I was done selling the berries, I covered my horses with horse covers, and then I listened, and I didn't hear nor see anything, and I saw the poles up. * * * When I approached the track I looked east and then looked west, and I didn't know—I really didn't know what struck me, but I was on the south track when I got struck. * * * Q. You say before you got on the wagon you looked and saw the poles were up and then started to drive away. How far were you from the poles when you looked the next time? A. Just approaching the track, and, when I got on the track, I listened and I looked east and I kept on my way and then I looked west. It was kind of rainy and foggy like; it was kind of late in the evening, half past 8, something like that."

On cross-examination plaintiff said:

"Before I came there I was stopped selling berries, and when I got to the crossing I slowed my horses, and I looked east and I looked west and I didn't see the train."

Plaintiff also testified that she heard no bell nor did she hear the noise of the approaching train, and that, though she looked west before driving upon the east-bound track, she did not see the headlight of the approaching train. On behalf of plaintiff, two witnesses testified that they were with plaintiff at her last stopping place, and saw her start toward the tracks, but heard no bell at such time.

It appears that at the time of the accident there were no buildings or obstructions along the west side of Broadway, north of defendant's tracks, excepting a little watchman's shanty which it is said stood some 25 feet from the south or east-bound track, and that the view in that direction was unobstructed for some blocks.

It appears that, when plaintiff drove upon the defendant's track as aforesaid, a street car which was proceeding south on Broadway had stopped in front of the railroad crossing to allow the train to pass; and that a street car going north had likewise stopped just south of the railroad tracks. Plaintiff, it seems, in approaching defendant's tracks was east of the south-bound street car which was standing north of defendant's railroad tracks, and her view to the west was obstructed thereby until she had passed the same. It is said, however, that this car stopped with the front portion thereof within perhaps 15 feet of the east-bound track; and it seems that after passing the same there was nothing to...