Zini v. Terminal R. Ass'n of St. Louis

• Decision Date: 30 November 1921
• Docket Number: No. 21726.,21726.
• Citation: 235 S.W. 86
• Parties: ZINI v. TERMINAL R. ASS'N OF ST. LOUIS
• Court: Missouri Supreme Court

235 S.W. 86

ZINI v. TERMINAL R. ASS'N OF ST. LOUIS

No. 21726.

Supreme Court of Missouri, in Banc.

November 30, 1921.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Felice Zini against the Terminal Railroad Association of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This suit was instituted in the circuit court of the city of St. Louis by the plaintiff against the defendant to recover damages for personal injuries sustained by the alleged negligence of the latter. The pleadings are not questioned, so we will not notice them further. Counsel for respondent make a very fair statement of the case, so we will adopt the same substantially as our statement of the case, which is as follows:

This is an action for damages brought by Felice Zini against the Terminal Railroad Association of St. Louis for the loss of his right arm. He was run over by a passenger coach, which was at the time being pushed by an engine of the Terminal Railroad Association on the 13th day of April, 1917. This accident occurred when Felice Zini was a minor, about 19 years of age. This suit was originally brought by next friend, but on the day of the trial, the plaintiff having reached his majority, the court granted its permission to the plaintiff to continue his action in his own name, leaving off all reference to the next friend previously appointed for the purpose of the suit. Plaintiff was employed by the Adamo Express Company when he received his injury.

The Adams Express Company, together with the Wells Fargo Express Company and the American Express Company, had on the day of the accident their freight platforms adjacent to Union Station and along the Terminal Railroad Association railroad tracks. The Terminal Railroad Association had part of its tracks running on either side of the express companies' platforms. Subways were used for the transportation of express packages from the Terminal Railroad Association in Union Station to the different express companies adjacent to, Union Station, and whenever the express companies had deliveries to be made to the Terminal Railroad Association in Union Station; it would do so by using trucks which were pushed through the subway connecting the express companies underground with the Terminal Railroad Association in Union Station.

It was customary and permissible for express company employés, when desirous of going to Union Station for packages or trucks, that they walk through the railroad yards and thereby save a great deal of time getting to their destination. The yards near the express company platforms, and in fact throughout, were well illumined, in order that expressmen could read written matter on the various packages. The accident occurred within a few feet of one of the Wells Fargo Company express platforms, and was witnessed by George Richardson, an employé of the Wells Fargo Express Company, who was at the time engaged in assorting express matter on the freight platform. The plaintiff previous to the stumbling and falling had been walking alongside this track No. 34 and approaching signal bridge No. 7, the point at which he fell. The direction he was going was in a northerly direction, following track No. 34. The testimony of George Richardson was that he saw Zini stumble and fall when the nearest coach of the train of cars was about even with the lower or southern Wells Fargo platform (there being two Wells Fargo platforms along the track) a distance of about 150 feet; that the cars were moving at the rate of about 6 miles per hour and that the cars could be stopped easily in 10, 12 or at the most 15 feet; that the plaintiff was lying on the track, oblivious to his danger; that he (Richardson) hollered, but before he could get down to him another train coming out of Union Station going south stopped on the track between the track No. 34, the track that Zini was hurt on, and the platform upon which Richardson was standing; that he (Richardson) ran through the doorways of the train going south and jumped down on the next track, where Zini was hurt. Switchman W. J. Feder, who was a switchman on the coach that ran over plaintiff, testified that the train was actually stopped: within 20 feet.

At the moment the accident occurred, the plaintiff was en route to Union Station, where he was instructed by the Adams Express Company to obtain a truck, and as he was nearing signal bridge No. 7 on track No. 34, which was opposite and about the width of two tracks away from the Wells Fargo Express Company's platform, where witness Richardson, heretofore mentioned, was standing, he stumbled and fell and was lying on the rail when some passenger coaches, being pushed by an engine of the defendant, ran over him, crushing and mangling I his right arm in such a manner that it was afterwards necessary to amputate it. It was admitted by counsel for defendant that at the place where Zini was injured all of the employés of the different express companies, including the Adams Express Company, that the plaintiff was working for, used these yards day and night in walking to and fro, and that the public generally used these yards, which were open and unfenced, walking back and forth at any time that they desired, and that the company knew that their yards were being used by the express company employés and the public without objection or protest, and, in fact, it was necessary for the express company employés to use the yards in the manner in which the plaintiff was at the time he was hurt, in order to efficiently and expeditiously carry on the business between the express companies and the Terminal Railroad Association.

The following is a stipulation agreeing, between respondent and appellant, that respondent may as an additional abstract of record insert a blueprint of a plat with its...