Opinion
No. 28651.
September 15, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, HARRY F. RUSSELL, J.
Not to be reported in State Reports.
Robert C. Ely, Wayne Ely, and Ely Ely, St. Louis, for appellant.
Robert F. Stanton, Walter Wehrle, and Forrest Boecker, Clayton, for respondent.
This is an action for damages for personal injuries brought by William E. Graham against the Illinois Terminal Railroad Company, a corporation. Plaintiff's injuries were sustained as a result of a collision at a railroad crossing in the City of Madison, Illinois, between plaintiff's automobile and an interurban car of defendant. The trial below resulted in a verdict and judgment for defendant. Thereafter, the trial court sustained plaintiff's motion for a new trial. The ground specified in the order granting the new trial was, "for error in defendant's Instruction No. 3." From said order, defendant appealed to this court.
Plaintiff's petition alleged several specifications of negligence, but all were abandoned at the trial save the assignment that: "Defendant, by and through its agent and operator, saw or in the exercise of ordinary care could have seen plaintiff's automobile with plaintiff therein in a position of imminent peril of being struck by defendant's streetcar in time thereafter, with the means and appliances at hand and with safety to said streetcar and the operator and occupants, in the exercise of ordinary care, with the means and appliances at hand to have slackened the speed thereof, stopped same, or sounded a timely warning of the movement, approach or proximity thereof, but the defendant failed to do any of these things." Plaintiff submitted said assignment on the hypothesis that defendant could have stopped said streetcar or slackened the speed thereof, and thereby have avoided colliding with plaintiff's automobile.
The answer, after denying generally the allegation of negligence pleaded, averred that plaintiff's injuries were the result of his own negligence in that: (1) plaintiff negligently drove his automobile onto defendant's tracks when the streetcar was in such close proximity that said streetcar could not be stopped or its speed slackened sufficiently to avoid a collision; (2) that plaintiff saw or by the exercise of ordinary care would have seen the streetcar approaching in time for plaintiff, in the exercise of ordinary care, to have stopped, turned aside or slackened the speed of his automobile so as to have avoided the collision, but negligently failed to do so; (3) that plaintiff, by the exercise of ordinary care, would have seen a warning light at said crossing, and heard the streetcar's warning whistle which was being sounded at said time, or, in the exercise of ordinary care, would have seen defendant's streetcar, which was plainly visible, in time to have stopped his automobile, turned same aside or slackened its speed so as to have avoided the collision; and (4) plaintiff negligently failed to have his automobile under such control that it could be readily stopped upon the first appearance of danger of collision between said automobile and said streetcar.
The accident occurred on August 12, 1951, between 7:00 and 7:30 p. m. Just prior to the collision plaintiff was traveling east on Second Street, an east and west street. Plaintiff was alone at the time. Defendant's single track, which runs north and south, crosses Second Street a few feet west of McCambridge Avenue. A few feet west of the track was a pole on which was affixed a cross-arm bearing the legend "Railroad Crossing". Also on this pole was a "blinker sign" designed to flash a red light upon the approach of streetcars toward said crossing. Immediately to the west of these signs was a highway "stop" sign. Defendant's track approaches Second Street from the south on a down grade. This downgrade starts at the end of a viaduct. According to plaintiff's estimate, the viaduct is about 250 feet south of Second Street. However, plaintiff's witness Joe Kurman, who was the conductor on the streetcar involved in the collision, testified that the distance between Second Street and the viaduct was from 600 to 650 feet. The highway "stop" sign, according to plaintiff's testimony, was about 30 or 40 feet from the west rail of the streetcar track.
Plaintiff testified that on the occasion in question he brought his car to a complete stop about five feet west of the highway stop sign, and about 50 or 55 feet from the nearest rail of the streetcar track. He stated that he saw the railroad crossing sign and that after stopping he looked "both ways", but did not see anything; and that he did not see any Illinois Terminal rolling stock approaching from the south at that time. The plaintiff further testified as follows:
"Q. Bill, at the time you made your stop there on Second Avenue, did you observe whether or not that electric signal was operating? A. I didn't see it operating.
"Q. Did you look at it? A. Yes, sir.
"Q. As far as you observed, it was not operating? A. That's right.'
Plaintiff further testified that when he looked to his right, toward the viaduct, he could see for a distance of about 100 feet. Plaintiff was then asked if there was anything to obstruct his view further than 100 feet, and his reply was: "Well, the top of the car. You can't see too good." Plaintiff further testified that he did not recall hearing the sound of any Illinois Terminal trains at the time.
Further testifying, plaintiff stated that after he had satisfied himself that there was nothing coming, he proceeded forward in low gear, and attained a speed of about five miles per hour when he reached the railway tracks.
Plaintiff testified:
"I didn't see anything coming and didn't hear anything coming, so my mind was on the highway out there, to see if there were any cars on the highway.
"Q. And you gave your attention, from that time on, to traffic, whatever that might have been — to traffic on McCambridge? A. That's right.
"Q. From the time you started up from this stopped position, you didn't look any more for trains? Is that right? A. Not after I was satisfied there wasn't anything coming the first time.
"Q. And you started up in low gear, and from there on you gave your attention to McCambridge? A. Yes, sir.
"Q. * * * Did you hear any whistle blow? A. No."
Plaintiff stated he did not remember whether there was traffic on McCambridge Avenue at the time. When plaintiff reached the car tracks, he was struck by defendant's northbound streetcar.
Joe Kurman, the conductor of the streetcar, was called as a witness for the plaintiff. He testified that the speed of the streetcar as it proceeded toward Second Street from the viaduct was about 20 miles per hour, and under the conditions that prevailed at the time and place in question the streetcar could be stopped in 140 or 150 feet.
The witness further testified that the first knowledge he had of anything unusual occurring at the time was when he heard short blasts of the car's whistle. He stated that the regular crossing whistle was two long blasts and one short blast, followed by a long blast, and that this signal was given at the time. The practice was to start the whistle crossing signal just after leaving the viaduct, and to continue it until the car reaches the crossing. He stated that the last blast of the whistle on this occasion was interrupted by short blasts as the car approached Second Street. At that time the car was on the downgrade near the crossing. The witness could not give the exact distance the car was from Second Street at the time. He stated that at the time he was in the center of the car making up his cash fare receipts, and when he heard the whistle he began looking around, but was not in a position to see anything in connection with the accident. The next thing that came to his attention was the crash. After the collision, and after the streetcar came to a stop, he got out and found that the coupler of the car had gone into the door on the right-hand side of the automobile, and that the automobile was still in front of the streetcar when it came to a stop.
Mr. Kurman further testified that after the accident he looked at the signal light at the crossing and found it operating. He stated that the signal begins to operate just as the car leaves the viaduct, and is cut off after the car leaves Third Street, which is north of Second Street. The streetcar had not passed Third Street, but had stopped at an alley between Second and Third Streets.
Plaintiff's witness, Mary Ann Paskus, testified that at the time of the accident she was sitting in a swing in the yard of her home, which was located on the corner of Second Street and McCambridge Avenue. She was facing the viaduct at the time. She stated that she looked up and first saw plaintiff's automobile when it was on the track — the front wheels being between the rails. On direct examination she testified that the automobile was stopped at the time; but later, on cross-examination, said it was not stopped completely, but was moving "a little bit". Miss Paskus further testified that she then noticed the streetcar coming north. She said, "It was blowing its whistle," and that the streetcar at that time was over the viaduct and coming down the slope. She stated: "The streetcar just kept coming and kept blowing the whistle, until it hit the automobile and drug it down the block * * * right past where I sit. * * * As soon as I saw it was going past my house, I didn't bother to watch where it went, because I went in the house and called the ambulance, so I didn't watch how far it went."
Mrs. Rosemary Irwin testified on behalf of plaintiff that she lived in a house located on McCambridge Avenue, facing Second Street. She heard the thud of the collision and went out to see what happened. She saw the streetcar with the automobile in front of it just as the streetcar was coming to a stop. At the request of plaintiff's attorney the witness had paced the distance from the crossing to the place where the streetcar came to a stop. She walked 67 steps of approximately 28 inches from toe to toe, making an estimated distance of approximately 156 feet. The streetcar came to a stop just beyond the alley. The witness stated that she did not notice whether the red signal light was working at the time. She said she did not look at it. She also stated she did not recall hearing the whistle blow, explaining that she had lived there so long she did not hear it any more.
Inez Humphrey testified on behalf of defendant that she lived in the second house west of the crossing on the south side of Second Street. At the time of the accident she was standing in the doorway of her home talking with her daughter. Mrs. Humphrey stated that prior to the accident she had to stop talking because the whistle was blowing so loud she could not make herself heard. The next thing she heard was the crash of the accident; that when she looked up, all she could see was a cloud of dust. She stated that she looked at the signal and observed the light burning, and that the light remained on as long as the streetcar remained there following the accident.
Melvin Taylor, the motorman of the streetcar involved in the accident, testified for defendant. His position while operating the car was in the front of the car, on the right-hand side, in a two foot square enclosed cab. He stated that on the occasion in question he shut off the forward power of the car when it reached the south end of the viaduct, and applied the brakes while on the bridge structure, and kept them applied as he proceeded downward toward Second Street. He stated that his speed coming down the hill from the bridge was approximately 15 miles per hour. He further stated that after he started to descend the hill, he started blowing the crossing signal, which was two long blasts, one short blast, and another long blast, and that he was blowing the last long blast of the crossing whistle when he started blowing short blasts to warn the plaintiff. The witness stated that he saw the automobile driven by plaintiff come up to the "stop" sign and stop, and that the streetcar was then approximately 400 feet from the Second Street crossing. He said it seemed to him that plaintiff made a rather fast stop; that he watched plaintiff particularly at the time, and when the streetcar was about two car lengths from the crossing plaintiff's car began to creep slowly forward; that he then started the short blasts of the car's whistle and, when he saw that plaintiff was not going to stop, he applied the emergency brakes; that when he realized plaintiff was not going to stop, the streetcar was 30 or 35 feet, or maybe less, from the crossing; that at that time plaintiff's car was slowly creeping onto the tracks; that after the impact his brakes seemed to momentarily give way, so he put the streetcar in reverse, which had the effect of locking the wheels, and the streetcar stopped about 150 feet from the crossing. The witness further testified that after the accident he went back and looked at the signal and observed that it was operating.
The witness placed the distance from the Second Street crossing to the viaduct at 650 to 750 feet. He stated that the automobile stopped about 10 or 15 feet from the track, and that the automobile thereafter moved forward at approximately 3 miles per hour. In the opinion of Mr. Taylor, under the conditions present, and with safety to the passengers, the streetcar could be stopped within 120 feet. The brakes gave way after the collision, because the air hose in the front of the streetcar was torn loose as a result of the collision.
Harry E. Gravier testified on behalf of defendant that he was a passenger on the streetcar at the time of the accident and was riding in the front seat on the left side of the car. From that position he had a view straight ahead and to the left. He stated that before the streetcar left the viaduct the whistle began to blow and that it blew two longs, a short and a long; that he saw plaintiff's automobile before the streetcar left the viaduct; that he saw plaintiff's automobile stop and a second or two later start over the crossing; that the streetcar was "pretty near at the crossing when it started across. * * * I would say it is something like maybe 15 feet, or something like that." The witness further testified that as the streetcar proceeded toward the crossing he saw a white light showing through the "cut open" part of the signal. He stated that the streetcar was traveling 15 miles per hour as it came down from the viaduct. The witness estimated the distance from the place the plaintiff's automobile stopped to the place where it was hit as 10 to 15 feet. Gravier stated that in his judgment the distance from the crossing to the viaduct was about 400 feet.
Myron Merz testified on behalf of defendant that he was a passenger in the streetcar and was seated in the second seat on the left side; that the whistle started when the streetcar was still on the viaduct; that he saw plaintiff's automobile stop and start up again when the streetcar was about 25 feet from the crossing. The witness estimated the distance from the viaduct to the crossing at 350 to 400 feet. He saw automobile traffic going both ways on McCambridge Avenue. He stated that the streetcar was a short distance off the viaduct and on the downgrade when he saw the plaintiff's automobile stop. In his opinion the automobile stopped about twenty seconds.
Harold W. Lange testified on behalf of defendant that he was employed by defendant as signal maintainer on the date of the accident. His territory included the signal located at the crossing in question. Prior to the date of the accident, the last time a repair was made to the signal in question was on June 25, 1951. Between that date and October of 1951 there was nothing found wrong with the signal. The witness further testified that on the morning of August 14, 1951 (two days after the accident), he made an inspection of the Second Street signal and found everything was working in perfect order. He testified that the distance from the crossing to the point where the contact turns on the red signal as the streetcar proceeds over it, coming north, is 650 feet; that the distance from the crossing to the edge of the viaduct is 700 feet; that the light comes on steady and is not a flash type of light; that when a car is proceeding northwardly and strikes the contact 650 feet south of the crossing, the light goes on and stays on until the car has passed Fourth Street.
In support of its contention that the trial court erred in granting a new trial, appellant urges, first, that Instruction No. 3 is not erroneous; and, second, that the court's order should be reversed regardless of any error in said instruction, on the theory that plaintiff was guilty of contributory negligence as a matter of law.
The petition alleges that on or about the 12th day of August, 1951, plaintiff was operating an automobile eastwardly on Second Avenue at the intersection thereof with McCambridge Avenue, both open and public streets in the city of Madison, Illinois, and that plaintiff was approaching and attempting to cross the tracks of the defendant at said intersection when his automobile was struck by one of defendant's streetcars traveling north at said intersection, causing plaintiff to be thrown about and injured. It was then alleged that plaintiff's injuries were caused by defendant's negligence in the several respects set out in said petition.
From said allegations it appears that the alleged tort was committed in the State of Illinois. It therefore follows that the substantive rights of the parties must be determined by the law of Illinois, Hughes Provision Co. v. La Mear Poultry Egg Co., Mo.App., 242 S.W.2d 285; and that we must take judicial notice of all statutes and judicial decisions of that state relevant to the issue before us. Sections 490.080 and 509.220 RSMo 1949, V.A.M.S.; Rule 3.14, Supreme Court Rules.
We have examined the record in this case in the light of the Illinois law as announced in the decisions of the Supreme Court of that state and have concluded that under said decisions plaintiff in this case must be held to have been guilty of contributory negligence as a matter of law.
The leading case which defines the duty of one about to enter upon a railroad crossing is Greenwald v. Baltimore O. R. Co., 332 Ill. 627, 164 N.E. 142, 144. In that case the automobile truck which plaintiff's agent was driving, accompanied by another, was struck by defendant's westbound train at a regular railroad crossing. Plaintiff's evidence showed that the driver last looked in the direction of the on-coming train at a point 30 or 40 feet from the track on which the train was traveling. At that point one could see at least 200 feet down the track. After looking east, the driver proceeded toward the track at a speed of 5 miles per hour. There was evidence that no whistle was sounded and no bell rung. The train was at the time traveling 35 or 40 miles per hour. The court held that plaintiff's driver was guilty of contributory negligence as a matter of law. The court said:
"In this case it seems clear from the testimony of appellant's witnesses, taken in its most favorable light, that appellant's agents, had they continued to look toward the southeast after going upon the tracks, would have seen the approaching train in ample time to have avoided the collision. Appellant's evidence most favorable to him is that when standing on the first or south track, which the testimony shows is from 30 to 40 feet south of the third track, on which the collision occurred, one can see at least 200 feet in the direction from which the train was approaching. Neither of appellant's servants testified that after going upon the first or south track they again looked toward the southeast until they were crossing the second track. It seems clear that had they done so the collision would have been avoided. They testify that they heard no sound of warning, such as the blowing of a whistle or ringing of a bell. The duty resting upon one who crosses a railroad track is not only to listen but to look, and the fact that no bell was rung or whistle blown, if such was the fact, would not excuse him from using due care to look in the direction from which a train might be coming, and in this case had appellant's servants done so it seems clear that the collision would have been avoided.
"* * * under the rule in this state, as hereinbefore stated, we are convinced that appellant's evidence does not show due care on the part of the servants in crossing the tracks. The superior court therefore did not err in instructing the jury to return a verdict for the defendant * * *."
The general rules applicable were stated in said opinion, as follows:
"The rule has long been settled in this state that it is the duty of persons about to cross a railroad track to look about them and see if there is danger, and not to go recklessly upon the track, but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. (Citing cases.)
"One who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look or in crossing a railroad track in reliance upon the assumption that a bell will be rung or a whistle sounded. No one can assume that there will not be a violation of the law or negligence of others and then offer such assumption as an excuse for failure to exercise care. The law will not tolerate the absurdity of allowing a person to testify that he looked but did not see the train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it."
The same rules were applied by the Illinois Supreme Court in Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, 191 N.E. 287, where plaintiff traveled 20 to 25 feet from the point where he last looked before entering upon the defendant's tracks. The court there held that the plaintiff was not excused from the duty to again look by reason of defendant's failure to sound the whistle or ring the bell. See also Purdy v. Sprague, 286 Ill.App. 17, 2 N.E.2d 743; and Wuerz v. Southern Ry. Co., 318 Ill. App. 1, 47 N.E.2d 513. In Kuba v. New York Central R. Co., Mo.App., 143 S.W.2d 332 (opinion by Bennick, J.), we applied the doctrine of the Greenwald case as being a controlling decision on the application of the Illinois law in crossing cases.
In the case at bar the testimony submitted on behalf of plaintiff was to the effect that he approached the crossing in question fully aware of the existence of the defendant's tracks. It was broad daylight, and the weather was clear. There were no buildings, trees, or other objects to obstruct the view of one approaching the crossing from the west, and the tracks of defendant were clearly visible from said crossing to the viaduct, which, according to plaintiff's testimony, were located about 250 feet south of the crossing. Plaintiff brought his automobile to a stop 50 or 55 feet from the nearest rail of the defendant's tracks and looked south. His view up the incline on which defendant's tracks were laid was restricted by the top of his automobile to 100 feet. However, plaintiff did not take the precaution, which ordinary prudence would seem to dictate, to lean forward in order that his range of vision toward the south would be lengthened. He then shifted his automobile to low gear and moved forward at a speed of about 5 miles per hour. He traversed the whole distance to the tracks, 50 or 55 feet, without once again looking to the south.
Plaintiff, traveling 5 miles per hour, covered about 7 1/2 feet per second; and defendant's train, going 20 miles per hour, traveled approximately 30 feet per second. On this basis, defendant's streetcar was approximately 90 feet from the crossing and clearly within the range of plaintiff's vision when plaintiff's automobile was approximately 22 feet from the tracks. If plaintiff had looked south at that time he could have seen defendant's streetcar without having to bend forward to do so, and it is clear that had he looked he could thereafter have taken the steps necessary to have averted the collision. We will take judicial notice that an automobile traveling at 5 miles per hour can be stopped in less than 22 feet. Smith v. St. Louis Public Service Co., Mo.App., 252 S.W.2d 83.
It is clear from the evidence in the case at bar that plaintiff's failure to look after entering the zone of unobstructed vision constituted negligence as a matter of law, unless we are compelled to say that his failure in this respect was excused by reason of the fact that the automatic signal light was not operating at the time. The Illinois law on this phase of the case is stated in Grubb v. Illinois Terminal Co., 366 Ill. 330, 8 N.E.2d 934, 937, as follows:
"No fixed or positive rule applicable to all cases can be announced. It must be remembered that railroads, of necessity, are operated at a high rate of speed in accordance with public demand; that they proceed over their own right of way; and that the mechanical devices installed to warn the public of approaching trains may get out of order. We believe the sound rule to be that although the fact that a signal system is not operating is an indication to the traveler that it is safe to cross, nevertheless he is not thereby released of the duty of using reasonable care for his own safety. Where the surroundings at a particular crossing give to the traveler an unobstructed view of a dangerous highway crossing, he is not justified in failing to look, or on looking, failing to see an approaching train, merely acting in reliance upon an assumption that no train is approaching."
In Applegate v. Chicago N.W. Ry. Co., 334 Ill.App. 141, 78 N.E.2d 793, loc. cit. 800, the rule is stated as follows:
"The failure of the signal, however, does not relieve a traveler from his duty to look and listen for an approaching train (Grubb v. Illinois Terminal Co., 366 Ill. 330, 337, 8 N.E.2d 934; Silvery v. Lehigh N.E.R. Co., 2 Cir., 1932, 62 F.2d 71, 72; Lockett v. Grand Trunk Western R. Co., 272 Mich. 219, 261 N.W. 306), and where the surrounding circumstances at the crossing give to the traveler an unobstructed view of a track, he is not justified in failing to look, or, on looking, failing to see an approaching train. For, regardless of the failure of the signals, the law does not excuse one from the duty of looking at a railroad crossing unless there is no reasonable opportunity to do so."
See Lockett v. Grand Trunk Western R. Co., 272 Mich. 219, 261 N.W. 306, for an application of the above mentioned rule. There, the court held a plaintiff guilty of contributory negligence as a matter of law in traveling 37.5 feet to the defendant's track with the on-coming train visible, even though the crossing signals were not operating.
In our discussion of the law applicable to the instant case we have not overlooked those cases relied upon by respondent which hold that exceptional circumstances may relieve a plaintiff from the duty of looking and listening before entering the danger zone. We reviewed the Illinois law on this subject in Busker v. New York Central R. Co., Mo.App., 149 S.W.2d 449, and applied same more recently in Finley v. Illinois Central R. Co., Mo.App., 251 S.W.2d 713.
Occasions may, and often do, arise where the use of the sense of sight and that of hearing are unavailing, or where their nonuse may be excused. It may appear in a particular case that the view of the driver of an automobile is obstructed by intervening objects, or impaired by the darkness of the night. The surrounding circumstances may be such as to distract the attention of one attempting to cross certain tracks. A railway company, by its flagman or other agent, or agency, may put the person off his guard and induce him to cross the track without his resorting to the usual precautions. The duty of one making such a crossing may be more or less varied by the age, degree of intelligence and mental capacity of the party. In such cases, the issue of contributory negligence becomes a jury question. In the case at bar, however, none of these elements were present.
In deciding this case we have considered plaintiff's personal testimony as true and have disregarded all evidence of defendant contrary to that offered by plaintiff. However, plaintiff is not bound by his estimates of speed, time and distance, but may rely on defendant's evidence as to those matters where such testimony is consistent with his theory of the case. State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406; Pabst v. Armbruster, Mo. App., 91 S.W.2d 652; Smith v. Producers' Cold Storage Co., Mo.App., 128 S.W.2d 299; Mollman v. St. Louis Public Service Co., Mo.App., 192 S.W.2d 618.
Defendant's evidence was that plaintiff's automobile stopped 10 or 15 feet from the crossing track, instead of 50 or 55 feet as stated by plaintiff. If we regard this evidence of defendant as true, plaintiff would clearly be guilty of contributory negligence as a matter of law, for it would then appear, considering the rates of speed shown, that defendant's streetcar was well within 100 feet of the crossing and within the range of plaintiff's vision at the time plaintiff stopped. In such a situation we would be compelled to presume that plaintiff looked so carelessly or inefficiently as to amount to not looking at all. To look and fail to see is equivalent to not looking. Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64.
In our opinion, plaintiff was guilty of negligence as a matter of law and is not entitled to recover. In view of our ruling in this respect it becomes unnecessary to pass upon the correctness of Instruction No. 3.
For the reasons stated, it follows that the order of the Circuit Court sustaining plaintiff's motion for new trial should be and is hereby reversed and the cause remanded with directions to the Circuit Court to reinstate the verdict of the jury and to enter judgment thereon.
BENNICK, P. J., and HOLMAN, Special Judge, concur.