235 S.W. 1050 | Mo. | 1921
This is an action for damages for the death of James H. Quigley, who was struck and killed by a train operated by employees of respondent. At the close of appellant's evidence the trial court's rulings resulted in an involuntary nonsuit. The motion to set aside was overruled, and judgment entered accordingly. This appeal followed.
The railroad upon which Quigley was killed crossed the Mississippi River at St. Louis on the Merchants Bridge. There were two tracks. There were two approaches to the bridge from the west. One of these led to the northwest, and is called the Carrie Avenue approach. The other led west and then curved to the south, and is called the Bremen Avenue approach. This approach carried two tracks and upon it the accident occurred. From the west end of the bridge the Bremen Avenue approach consisted, for some distance, of trestle work. The fill upon which the tracks continued from the end of this trestle was about thirty feet high where it joined the trestle. The grade descended thence toward Bremen Avenue. The top of this fill was broad. It carried two tracks. There was a space between these tracks which, the witnesses say and the photographs introduced by appellant show, was ample to permit a pedestrain to walk with safety between them when both tracks were occupied by moving trains. The evidence tended to show that employees of respondent had so used this approach in going to and from their work that it was respondent's duty to expect them upon it. Quigley had been in railroad service for thirty-two years, and had served as a railroad engineer on the roads in question for twenty-five years. On the day he was killed he had been at work on the Illinois side. His day's work done, he was on his way to his home in St. Louis. The train which struck him consisted of an engine and one car. Its function was to take employees to their work and, *29 after that work was done, to their home side of the river. It was called the cab train. On this occasion it came from the Illinois side to the Missouri side. When it reached the bridge it was found that the north, or west-bound, track was occupied by a long freight train. The crew of the cab train were directed to proceed with their train across the bridge on the south, or east-bound track. This they did. The train reached the west end of the bridge. In doing so it passed the long freight train which occupied the north track. It then proceeded to the junction of the Carrie Avenue and Bremen Avenue approach. The testimony is that Quigley was at this point when the cab train was there. He proceeded down the approach, between the tracks. Subsequently the cab train started down the Bremen Avenue approach, still on the southern or southeasterly track. The only cross-over by which it might pass to the right-hand track was near Bremen Avenue and somewhat beyond the point at which Quigley was struck. Quigley had reached a point several hundred feet ahead of the train before it left the Carrie Avenue junction point. After leaving this point the train attained a speed of about twenty-five miles per hour. The tracks leave the bridge in a westerly direction and curve to the south. There is a steady curve, which reaches its sharpest state at a point somewhat southwest of the place of injury. The employees operating the engine of the cab train, when about two hundred feet from Quigley, observed him. The bell had been ringing and continued to ring. The engineer had commenced to slow down for the Bremen Avenue stop. When he saw Quigley at the distance stated he began to give the danger signal. This was given until Quigley partly turned and looked toward the on-coming train and signaled to the engineer, to "Come on. Everything is all right. Everything is clear." The train's speed was still being gradually reduced for the contemplated stop, and had been cut down seven or eight miles per hour when the train reached a point a few feet behind Quigley. Suddenly, and when the train was about to pass him, Quigley *30 left the path in which he was walking and stepped upon the track in front of the train and was immediately struck. There is no evidence that his danger, after he started to go upon the track, was, or could have been, seen in time to save him. The testimony was direct that Quigley was walking in such a place between the tracks that no danger to him was suggested to the train crew, and that he would have been in no danger if he had not suddenly stepped aside from that place and put himself in front of the train. The testimony is that, while the other track was the one generally used for trains going in the direction in which the train which struck Quigley was moving and while it was known as the "regular east-bound track," yet there was nothing unusual in the use of the "regular east-bound track" for west-bound trains; that it was customary so to use it when the regular west-bound track was occupied by another train (as in this case) or it was under repair or obstructed or not available for any reason; that it was customarily so used under such conditions; that it occurred frequently, and any railroad men who had been in the service "for any length of time" knew that was the manner of operation.
I. For the purpose of this appeal respondent concedes that Quigley was walking along the approach at a place where employees frequently walked and should have been expected to have been found; that Quigley was then in respondent's service and that both were at the time engaged in interstateContributory commerce; that while Quigley was walking in a safeNegligence. place, yet there might be danger by reason of his stepping aside from a train approaching from the rear on an irregular run, and that these facts are to be considered in determining whether the care used by respondent's employees was due care, in the circumstances; and that these concessions put the question of contributory negligence out of the case in so far as concerns the issues in this court. *31
II. The mere fact that the cab train was running west on the east-bound track is not, of itself, evidence of negligence. [Southern Ry. v. McGuin, 240 Fed. l.c. 651; Imler v. N.P.Due Ry. Co.,
Appellant relies upon the McGuin Case. The facts *32 of that case were not like those in this case. McGuin was walking between double tracks. A train approached him from the rear. The testimony which was held to entitle the plaintiff to go to the jury was that of Miller, who said that no signal at all was given until McGuin started to cross the track in front of the on-coming train; that the danger signal was then sounded, but it was too late. The train was on the irregular track. The testimony of other witnesses makes a case something like that here. Their testimony, it is clearly indicated by the court, would not have justified a finding for McGuin. In fact, it is the difference between Miller's testimony and testimony almost like that in this case which is made the foundation of the ruling that a finding of liability could be sustained.
Appellant also relies upon L. N. Railroad Co. v. Asher's Admr.,
III. It is contended respondent should have prescribed rules which would have called for signals, other than danger signals, to notify employees using the approach that a trainAdditional was running irregularly.Rules. *33
1. Appellant proved that Quigley knew that it was customary for trains to run irregularly in circumstances like those existing at the time, i.e. when a slower train occupied the regular track. It is also clear he heard the signals given, saw the train and signaled it to come on. It is difficult to see what more information would have been given him if signals other than those given had been used.
2. The Federal rule concerning assumption of risk applies in this case. [Pryor v. Williams,
The judgment is affirmed. All concur. *34