224 S.W.2d 963 | Mo. | 1949
Lead Opinion
Edward Hein, a truck driver for the Lueking Transfer Company, had made a delivery to the Cotton Belt freight house and was crossing the Terminal's tracks, laid in Main or First Street, at a crossing between O'Fallon and Dickson Streets when his truck was struck by a Chicago and Eastern Illinois Railway passenger train. Initially his action for damages for his resulting injuries was against both the Chicago and Eastern Illinois and the Terminal. Upon the first trial of his cause a jury found for him and against the Terminal but exonerated the Chicago and Eastern Illinois. He did not appeal from the judgment in favor of the Chicago and Eastern Illinois and upon the Terminal's appeal from the $4,000.00 judgment against it the cause was reversed and remanded. Hein v. *951 Chicago E.I.R. Co., (Mo. App.) 209 S.W.2d 578. Upon this the second trial of his cause he recovered a judgment of $10,000.00 against the Terminal. The Terminal's first contention upon this appeal is that the unappealed judgment of the trial court in the first trial exonerating the Chicago and Eastern Illinois and the judgment of the St. Louis Court of Appeals reversing and remanding the judgment against it are conclusive (res judicata) of the plaintiff's right to recover in this action.
[1] It is not necessary to analyze and develop, point by point, the Terminal's detailed argument that the judgments in the first trial and appeal are conclusive against recovery upon this trial. It is sufficient, for the purposes of this opinion, to say that the Terminal seeks to apply to this case the general rules of res judicata. Restatement, Judgments, pp. 157-160. Its contention may be summarized by this excerpted [965] quotation from its argument: "Judgment on the first trial of this case went for C. E.I., and for plaintiff against defendant. He did not appeal from that judgment. His failure to appeal left the judgment in favor of C. E.I. final that it was not guilty of any actionable negligence. This ipso facto frees defendant from any legal responsibility for plaintiff's injuries. Defendant can not be derivatively liable for the acts of C. E.I. which legally failed to act. * * * Inasmuch as defendant's alleged liability is necessarily based by plaintiff exclusively upon the postulate that C. E.I. was guilty of actionable negligence, and inasmuch as it has been finally determined that the C. E.I. was not guilty of any actionable negligence, the conclusion is inescapable that no liability can be cast upon defendant, regardless of any lessor-lessee relationship. Any liability upon defendant must be derivative, because plaintiff was injured by a C. E.I., not a Terminal train. Regardless of the relationship between the two defendants, if one's liability is primary and the other's is derivative, there can be no derivative liability in the absence of primary liability."
The answer to the Terminal's contention is twofold. In the first place its liability upon this trial was not derivative or dependent upon its relationship with the Chicago and Eastern Illinois or upon any negligent acts, conduct or breach of duty on the part of the Chicago and Eastern Illinois, as was the case in Brown v. Wabash Ry. Co., (Mo. App.)
[2] The Terminal contends, furthermore, that the plaintiff failed to make a submissible case because (a) there is no evidence that the crossing was extra-hazardous and therefore there was no duty on the defendant to furnish a watchman or other warning device at the crossing and (b) the plaintiff was guilty of contributory negligence as a matter of law. In effect the Terminal's argument concedes that if there was evidence that the crossing was extraordinarily dangerous that there was a duty to furnish some means of warning. The Terminal's three tracks, a main line track and two switch tracks, are laid in First or Main Street with paving on both sides of the tracks. In general the tracks run north and south intersecting O'Fallon and Dickson Streets. They are in a commercial area, surrounded by *953
freight houses, warehouses and storage plants. The crossing between O'Fallon and Dickson Streets was not such a crossing as O'Fallon Street was and we need not say whether it was a public or a private crossing but it was a crossing and had been constructed and maintained by the Terminal since before 1919. Usually trucks proceeded down Main Street to O'Fallon to cross the tracks but when there was a freight car "spotted" at the Bowman Egg Company, as there was on this day and usually, the trucks used the crossing in question. The evidence is not as detailed as it could have been as to the number of trains using the tracks and their speed but one of the tracks is a main line track into the Union Station. The Terminal says that the plaintiff's evidence as to the number of trucks using the crossing is so contradictory and speculative that it cannot be considered substantial. His witnesses estimated that fifty trucks a day used the crossing, that an average of five trucks every ten minutes used the crossing during the day and that two or three hundred trucks a day used the crossing. But the defendant's own witnesses, including the O'Fallon Street watchman and a patrolman, testified that from ten to twenty, or twenty-five trucks a day used the crossing. Cars "spotted" at the Bowman Egg Company obstructed the view of the tracks towards O'Fallon Street. Considering the physical surroundings, the nature of the neighborhood, the amount of travel over the crossing and the obstructions to view, without detailing all the evidence further, it was for the jury to say, under all the circumstances, whether the crossing was peculiarly dangerous and whether the Terminal had exercised the appropriate degree of care with respect to safety or warning. Homan v. Missouri Pac. R. Co.,
[3] It is not necessary to again detail the circumstances under which the plaintiff attempted to use the crossing and demonstrate that he was not guilty of contributory negligence as a matter of law. The facts and circumstances are set forth in the opinion of the court of appeals (209 S.W. (2), l.c. 584) and, as that court held, the plaintiff's contributory negligence, under the circumstances, was for the jury. Wright v. St. L.-S.F. Ry. Co.,
[4] It was of necessity, in the circumstances of this case, the theory of the plaintiff's action that the crossing was peculiarly hazardous and that therefore it was the [967] duty of the Terminal to provide some safety device or means of warning. And, as we have indicated, it was a question for the jury whether the Terminal had exercised the required degree of care or breached its duty in this regard. Annotation 60 A.L.R., l.c. 1106. Nevertheless, the plaintiff submitted the Terminal's liability in this manner: His principal instruction, one, began by defining "negligence." It then said, in a separate paragraph, "You are further instructed that it was the duty of the defendant Terminal Railroad Association of St. Louis, at all times, to use ordinary care to give warning of the approach of trains along its tracks at all public street crossings and at all other places where members of the public customarily crossed its tracks and where defendant knew or, in the exercise of ordinary care, could have known that persons customarily crossed the tracks." The instruction then told the jury that if they found the following facts to be true a verdict should be returned for the plaintiff, that the Terminal owned and maintained the tracks, that the crossing had been in existence for many years and that large numbers of the general public used it daily, that the Terminal knew of the use and knew or should have known that plaintiff was using it, unaware of the approach of a train, and "that defendant wholly failed to warn plaintiff of the approach of the said train and to provide any means to warn plaintiff of the train's approach and that the defendant was thereby negligent" and that such negligence proximately caused plaintiff's injuries. This was the only instruction, except on the measure of damages, given on behalf of the plaintiff. At the request of the defendant the court gave this instruction: "You are instructed that before you can find that defendant Terminal was guilty of negligence in failing to station a watchman at the crossing here involved, you must believe from the greater weight of the believable evidence that this crossing was a much-traveled one and was a particularly dangerous one. Unless you so find your verdict must be for defendant Terminal."
It may be that the instruction, particularly the quoted paragraph, in general and abstractly correctly states the law and defines the defendant's duty. But it does not apply to the theory upon which the plaintiff was compelled to rely or to the precise facts and circumstances of this case. Generally, in the absence of statute, a railroad is under no duty to provide a watchman or other warning at a crossing. Toeneboehn v. St. L.-S.F. Ry. Co.,
It was error to give instruction one and accordingly the judgment is reversed and the cause remanded. Westhues andBohling, CC., concur.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.
