Opinion
No. 28466.
September 16, 1952. Motion for Rehearing or to Transfer to Supreme Court Denied October. 17, 1952.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Watts Gentry, St. Louis, Joseph H. Wright, Chicago, Ill., of counsel, Charles A. Helsell, Herbert J. Deany, Chicago, Ill., for appellant.
Walther, Hecker, Walther Barnard, Harold E. Hecker, George W. Cloyd, Edward W. Tobin, Edward A. Haid, St. Louis, for respondent.
This is an action for damages for the death of Leslie Ray Finley, age 8, arising out of a collision between an automobile and one of defendant's passenger trains. Plaintiff is Ray E. Finley, father and administrator of the estate of the deceased. A trial in the Circuit Court of the City of St. Louis resulted in a judgment of $6,000 in favor of plaintiff. From the judgment the defendant railroad appealed.
The collision occurred in the City of Centralia, Illinois at 12:30 o'clock A.M. on July 10, 1949 at the McCord Street crossing of defendant's tracks, which at that point run north and south. McCord Street runs east and west. Passenger train No. 3 was southbound and plaintiff's automobile was westbound at the time of the collision. The principal street through the city for east and west traffic is Broadway but due to street repairs the Broadway crossing of the railroad tracks had been closed for 2 weeks prior to the accident, and traffic had been detoured or re-routed over the McCord Street crossing, which is 2 blocks north of the Broadway crossing. McCord Street is 30 1/2 feet wide. At the intersection of the railroad right-of-way and McCord Street a westbound motorist approaching the railroad crossing finds buildings on both his right and left. On the right or north side of McCord Street is the Goodale Building, a 2-story building facing 50 feet on McCord Street and 150 feet along the railroad right-of-way. The southwest corner of the Goodale Building is 29 feet north of the north edge of the slab on McCord Street. Immediately north of the Goodale Building there is a 1-story corrugated metal building. On the left or south side of McCord Street is the Oil Well Supply Company Building. Approaching the crossing from the east there is a standard crossbuck railroad crossing sign 6 feet north of McCord Street and approximately south of the southwest corner of the Goodale Building. Two or 3 feet east of the crossbuck sign there is another sign which is only 3 1/2 or 4 feet above the ground, made of metal with illuminable buttons on it, bearing the words "Watchman off duty." This sign customarily was covered all day while a watchman was on duty but when the watchman left for the night he would remove the cover and expose the wording on the sign. There was no watchman on duty at the time of the collision. The watchman went off duty at 10 o' clock P.M. There were no gates, electric bells or automatic flashing lights at the crossing. Four sets of standard gauge railroad tracks traverse the crossing. Each set of tracks is 4 feet 8 1/2 inches from the inside of one rail to the inside of the other. Proceeding west there is a spur or house track 6.4 feet west of the southwest corner of the Goodale Building. This track ends at the south face of the building and does not cross McCord Street. The first set of tracks which cross McCord Street is another spur track. Its east rail is 8 feet west of the west rail of the first spur track and is 19 feet from the corner of the Goodale Building. The second is a switch track. Its east rail is 5 feet west of the west rail of the second spur track. The third is the northbound track. Its east rail is 9 1/2 feet west of the west rail of the switch track. The fourth is the southbound track on which the train was running. Its east rail is 10 feet west of the west rail of the northbound track and 57.42 feet west of the southwest corner of the Goodale Building. There is a watchman's shanty located about 20 feet north of the north edge of the concrete slab of McCord Street and a few feet west of the southbound tracks.
Defendant contends that the court should have directed a verdict for defendant and that now this court should enter judgment for defendant notwithstanding the verdict of the jury because as a matter of law defendant was not negligent, and plaintiff did not exercise due care. Defendant further asserts that in any event the court erred in the giving and refusing of instructions.
The following assignments of negligence were submitted to the jury: (a) operating the train at a high, dangerous and excessive rate of speed under the circumstances; (b) failure to sound a warning as required by statute; (c) failure to slacken the speed of the train after discovering the peril of the occupants of the automobile.
Was defendant negligent? This question is to be determined in accordance with the laws of the State of Illinois on the basis of the evidence most favorable to plaintiff. Plaintiff, driving his 1937 2-door Chevrolet automobile in which his wife and child were riding, entered Centralia from the east, proceeded west on Broadway, detoured on the first street east of the Illinois Central tracks on account of the street repairs at the Broadway crossing, went 2 blocks north to McCord Street where he stopped for a stop sign, then turned left or west into McCord Street and continued until he came to the crossbuck railroad crossing sign. It was not a "real dark" night nor was it "real clear"; it was about an "average" night. Plaintiff was familiar with the location and knew of the railroad tracks. He saw the crossbuck sign before he made the stop but did not observe the other sign or whether the words "Watchman off duty" showed at the time of the accident. Two or more boxcars were on the Goodale siding when he stopped at the crossbuck sign. They were sitting "sort of to the south edge of the building" and he could not see north because of the building and the boxcars. At the crossbuck railroad crossing sign plaintiff stopped his automobile, looked and listened. His eyesight and hearing were good. He could see no train. He did not see any electrical headlight coming from the north. He heard neither whistle nor bell. No whistle sounded and no bell was ringing. The whistle, if blown, could have been heard for 2 or 3 miles. The window on his side was open. On the other side the window was half way down. When he stopped the front of his car was right at the first spur track as it would have been if it had extended across the street. He started up in low gear, applied the gas and went about 8 or 10 feet before shifting into second gear. When he started on to the west he looked to the south because the northbound track was the nearest. When he looked to the south "they have a bunch of floodlights down there and then other lights also and it confuses you, you can't tell whether it is a train or what it is, and I still couldn't figure out whether it was a train or what it was to the south, but it was those floodlights * * *." He looked over to the watchman's shanty thinking that perhaps there would be a watchman there but saw no one. Not seeing any watchman he was looking out for himself. He proceeded about 8 or 10 feet before shifting into second gear and was then traveling about 7 or 8 miles per hour. When he looked to the north he for the first time saw the front of the locomotive coming toward him very fast on the southbound track, 40 or 45 miles per hour, maybe faster, and apparently about 50 feet away. His front wheels were in the path of the train. He was sitting 5 or 6 feet back of the bumper of his automobile and when he first saw the locomotive his body was in the center of the northbound track and the front of his automobile was near the southbound track. Plaintiff's brakes were in good condition. He could stop the automobile in 8 or 9 feet at the speed of 7 or 8 miles per hour. If he had stopped when he first saw the train he would have stopped right square in the track. All he could think of was "getting clear." He tried to "get clear of it." He was "already on the track" and he "tried to get clear." When he saw the train he stepped on the gas and tried to get out of its path — attempted to quicken his speed, and got it up to 10 or 12 miles per hour. The speed of the train did not change from the time he first saw it until the collision occurred. The train struck his right rear wheel. Plaintiff never did see the electric headlight or see the train with lights in it nor did he hear the roar of the train or the clicking of the wheels on the rail joints or the sound of the bell or whistle until the last moment when he looked and saw the engine was "right there." The floodlights located near the Broadway crossing 2 blocks south "shine up the railroad there." They "lit it up where it was pretty light there." There were 2 floodlight towers south of the crossing 30 feet high which cast their beams down on the Broadway crossing at a 45 degree angle. They had 200-watt bulbs in them. There were other light towers in front of the depot located at the Broadway crossing which shone their beams straight north and south from the depot and which contained 250-watt bulbs. There were 6 of these 250-watt lights shining north from the platform, 2 near Broadway, 2 near the station, and 2 further south, all equipped with reflectors to make floodlights.
Certain interrogatories propounded to defendant revealed that on July 9 McCord Street was designated and used as a public highway across defendant's tracks in lieu of Broadway; that defendant did not issue any instructions to its train crews with reference to the use of McCord Street as a public highway; that the locomotive was about 80 to 100 feet from McCord Street when the fireman first saw the automobile; that at that time the train was traveling about 35 to 40 miles per hour; that a full service application of the brakes was made by the engineer when he became aware of the presence of the automobile on the crossing (after the collision) which application brought the train to a stop within the length of the train, which consisted of 17 cars; that a full application of the emergency brake was not made when the automobile was first seen on defendant's tracks.
There was expert testimony that by the use of the emergency brake the train going 35 miles per hour could have been brought to a stop in 100 to 120 feet; at 35 to 40 miles per hour it would take 10 to 15 feet further in which to stop; that at 35 to 40 miles per hour the speed could be cut in half in a distance of 100 feet, which would have increased the running time to reach the crossing by 1 1/2 seconds. Other facts favorable to plaintiff, developed in the course of the trial, will be referred to in our consideration of the points raised by appellant.
(a) Excessive Speed. Pointing to the time of the collision (the middle of the night) the fact that plaintiff's was the only automobile and No. 3 was the only train in the vicinity at the time, the lack of evidence that there was customarily any considerable amount of traffic at the crossing, and the unreliable character of plaintiff's "guess" that the speed of the train was 40 to 45 miles per hour, appellant contends that no circumstances were shown which would make it negligent to cross McCord Street at 35 to 40 miles per hour at half past 12 o' clock A.M. Appellant cites Nice v. Illinois cent. R. Co., 303 Ill. App. 292, 297, 25 N.E.2d 104, and Robins v. Pitcairn, 7 Cir., 124 F.2d 734, 736. In the nice case the court found it "hard to determine" that it is negligence per se to operated a train at the rate of 90 miles per hour through a village of 300 population, where the crossing was protected by an electrically operated swinging disc or wigwag which was set in motion automatically at least 20 seconds before any train would arrive at the crossing, and on top of which was installed an automatic bell similarly constructed, operated and controlled. In the Robins case the court held that the operation of a train at a speed of 75 miles per hour through an open country, the view of which was unobstructed, under the circumstances therein shown was not negligence. Neither case controls in the instant situation. Under Illinois law a railroad is under a common law duty to use ordinary care and prudence to guard against injuries to persons rightfully traveling upon public highways and, depending upon the circumstances, the speed of a train may become an act of negligence. Applegate v. Chicago N.W. Ry. Co., 334 Ill. App. 141, 78 N.E.2d 793; Humbert v. Lowden, 385 Ill. 437, 53 N.E.2d 418.
We have concluded that there were sufficient circumstances in evidence to justify submission of the question whether the speed of the train was excessive. The train, running late, (the engineer was trying to make up time) approached a much traveled crossing at a speed of 40 to 45 miles per hour, Landon v. Chicago G. T. R. Co., 92 Ill.App. 216, maybe faster, in a city of 17,000 population, Toledo, St. L. W. R. Co. v. Smart, 116 Ill.App. 523; 154 A.L.R. 231 (citing 12 Illinois cases); Applegate v. Chicago N.W. Ry. Co., Supra. The McCord Street crossing had been used as a substitute for the Broadway crossing for 2 weeks. Forty-one or 42 trains in addition to 7 or 8 switch engines crossed that crossing daily. Ninety-nine per cent of the east-west traffic through Centralia was ordinarily carried by Broadway. It was the main east and west arterial highway across the town and carried "a lot of traffic" both day and night. Since the traffic was detoured via McCord Street and in view of the testimony that there was no other crossing, it is fairly inferable that McCord Street carried "a lot of traffic" during the time Broadway was closed. Appellant maintained a watchman at that crossing in the daytime and into the evening hours. Defendant's rules prohibited running the trains more than 10 miles per hour at the Broadway crossing. St. Louis, A. T. H. R. Co. v. Odum, 52 Ill. App. 519, affirmed 156 Ill. 78, 40 N.E. 559. The buildings and boxcars on the Goodale siding obstructed the view of one approaching and stopping where plaintiff stopped to look and listen. Ballentine v. Illinois Cent. R. Co., 157 Ill.App. 295, loc. cit. 301. The lights on the standards at the Broadway crossing were so constructed, directed and illuminated as to confuse a motorist approaching the tracks from the east. There were 4 sets of tracks at the crossing. Lauer v. Elgin, J. E. R. Co., 305 Ill.App. 200, 27 N.E.2d 315; Applegate v. Chicago N.W.Ry. Co., supra; 154 A.L.R. 228. There was no watchman on duty, no gates, automatic lights, swinging arm or bell at the crossing. This failure to furnish additional safeguards increased the danger to travelers, Lauer v. Elgin, J. E. R. Co., supra, and accentuated the requirement of moderate speed on the part of appellant's trains at the crossing. There was ample evidence under the Illinois decisions to justify submission of the question of the dangerous character of the crossing and the question of excessive speed vel non.
(b) Failure to Sound Warning. Appellant contends that plaintiff's testimony that he did not hear a bell or whistle is negative testimony of no probative value; that when he looked and listened he was so located (behind the freight cars spotted on the siding) that his opportunity to hear the warning signals would have been much impaired. While negative testimony, under Illinois law, ordinarily does not raise a question of fact, Morgan v. New York Cent. R. Co., 327 Ill. 339, loc. cit. 343, 158 N.E. 724, it does have probative force if the witness was in such proximity that he could have heard the sound had it been made and that his attitude of attention was such that if the bell or whistle had been sounded it would have attracted his attention. Berg v. New York Cent. R. Co., 391 Ill. 52, loc. cit. 56, 62 N.E.2d 676; Applegate v. Chicago N.W. Ry. Co., supra; Murray v. Pennsylvania R. Co., 347 Ill.App. 218, 106 N.E.2d 819. Plaintiff's evidence that the windows on both sides of his automobile were down; that it was not foggy or rainy; that he stopped and listened at the crossbuck sign and that no whistle was blowing and no bell was ringing was of sufficient probative value to raise an issue of fact, and this assignment is ruled against appellant.
(c) Failure to Slacken Speed. Appellant contends that there is no evidence to support this charge for the reason that after the fireman saw the automobile it was too late to do anything about the speed of the train; that under the Illinois law the fireman or engineer who sees an automobile approaching the track is not required to arrest the speed of the train until the actions of the motorist are such as to lead a reasonably prudent person to believe that the motorist will not stop before getting into danger; that until that time those in charge of the locomotive have the right to assume that the motorist will refrain from going upon the track. Appellant argues that at a speed of 7 to 8 miles per hour and with the ability to stop in 8 or 9 feet plaintiff's car "was in no danger of being struck until the front end of it was about 12 feet from the east rail of the southbound track" and that it was impossible to avoid a collision at that time because at 35 or 40 miles per hour it would have required 110 to 135 feet to stop the train. This argument ignores certain facts in evidence which demonstrate that the collision was clearly avoidable. Assuming the correctness of appellant's statement as to the placement of plaintiff's automobile when it came into a position of peril (12 feet from the east rail) there was ample evidence upon which to submit the case on the Illinois doctrine of discovered peril and for the jury to find negligence in failure to slacken the speed of the train. While the fireman first testified that he first saw plaintiff's automobile when the engine was 80 to 100 feet from the point of impact he later testified that it was possible that he saw the automobile when he was 5 or 6 boxcar lengths from the crossing and that a boxcar is 50 to 75 feet long. He further testified that 5 seconds or more could have elapsed from the time he saw the automobile until the impact. According plaintiff the benefit of this testimony and the reasonable inferences to be drawn therefrom, and accepting as true plaintiff's testimony that the train was traveling 40 miles per hour, or 60 feet per second, the jury could find that at the time the fireman saw the automobile come out from behind the freight cars on the house track the engine was at least 300 feet from the point of collision. It was 45.37 feet from the freight car siding to the southbound tracks, and it was 33.37 from that siding to the position of peril 12 feet east of the southbound tracks. Traveling at 8 miles per hour it took plaintiff approximately 2.8 seconds to travel that 33.37 feet. During those 2.8 seconds the train traveled 168 feet, so that at the time plaintiff came into the position of peril the train was 132 feet from the point of impact. Plaintiff's expert testified that at 40 miles per hour the train could have made a safe emergency stop in 110 to 135 feet. Notwithstanding the automobile came across the several sets of tracks at an undiminished speed the fireman made no attempt to notify the engineer and the train proceeded at unabated speed into collision with the automobile.
The ability of appellant's employees to avert the collision may thus be further demonstrated: the train was travelling at the rate of 60 feet per second and the automobile was traveling at the rate of 12 feet per second. The automobile was struck on the rear 3 or 4 feet. The train was traveling about 5 times as fast as the automobile. By applying the emergency brakes at 40 miles per hour at a point 100 feet before the point of collision the running time for that 100 feet could have been increased by 1 1/2 seconds. Plaintiff's speed at the time of collision was 10 to 12 miles per hour or 15 to 18 feet per second. With 1/3 of 1 second additional time plaintiff's automobile would have cleared the crossing. Appellant's own engineer testified that he had made a partial application of the brakes; that the brake shoes were up against the wheels; that the train was practically coasting; and that at 35 to 40 miles per hour an emergency application of the breakes 100 feet north of the crossing would have cut the speed of the train in half, maybe more than half, and could have come close to a stop right about the crossing.
These facts under the Illinois law make a submissible case of discovered imminent peril, the ability to avert the casualty by slackening of speed, and negligence of appellant's employees in failing to do so. Wolf v. New York, C. St. L. R. Co., 347 Mo. 622, 148 S.W.2d 1032; Philippi v. New York, C. St. L. R. Co., Mo.App., 136 S.W.2d 339.
Did plaintiff exercise due care? In determining this question we apply the favorable evidence rule referred to in Smith v. Illinois Cent. R. Co., 343 Ill.App. 593, 99 N.E.2d 717, and Busker v. New York Cent. R. Co., Mo.App., 149 S.W.2d 449; the rule that if there is any evidence, standing alone, which tends to support the respondent's claim, it cannot be said as a matter of law that there is no evidence of due care on the part of respondent, Humbert v. Lowden, supra, and the rule that it cannot be said, as a matter of law, that a person is in fault in failing to look and listen, if misled without his fault, or where the surroundings may excuse such failure. Busker v. New York Cent. R. Co., supra.
As plaintiff drove his car toward the crossing his view both to the north and south was obstructed by buildings. In addition boxcars on the siding next to the Goodale Building obstructed his view to the north. He brought his car to a stop at the crossbuck warning sign, looked and listened. His eyesight and hearing were good and his car windows were open. He could see no train because of the obstructions and he did not hear the noise of any train. There were no arms or gates, no swinging warning signal, no automatic light flashing signal, no automatic electric bell and no watchman on duty. In this situation plaintiff started forward and attained a speed of 7 to 8 miles per hour. His view to the left or south opened up first, because the buildings on that side were farther from the tracks than they were on his right side. The first set of through tracks he encountered were the northbound tracks. After starting forward plaintiff looked first to his left or south, which might be regarded by reasonable persons as prudent, because the first possibility of danger would come from northbound trains. When he looked to the south he saw the lights at the Broadway crossing and station, which confused him. He could not tell whether it was a train or what it was to the south. Appellant claims that this evidence is inherently impossible or unlikely; that these lights could not have caused plaintiff to become confused or have obscured his view of the oncoming train. We do not so regard this testimony. Reasonable minds might well differ on the question whether the lights under the circumstances misled plaintiff and furnished a sufficient justification for his failure to look immediately in the opposite direction. We cannot convict plaintiff of negligence as a matter of law in not instantly recognizing these as fixed, stationary floodlights and in not immediately looking in the opposite direction. It is not unreasonable to say that plaintiff under those circumstances was entitled to time in which to appraise the situation and determine whether the lights were carried by trains on one or more of the several tracks. The candle power of 6 of the lights was the same as that of the headlight of a locomotive. It is true that a locomotive headlight is located only 10 feet off the ground, but who can say that lights 30 feet off the ground at a distance of 2 blocks at midnight could not reasonably be taken for headlights on a locomotive under these conditions? All reasonable persons would not say that plaintiff should have stopped on the northbound track, or changed his view immediately to the north before making this mental calculation. Plaintiff's speed was 7 to 8 miles per hour at a point 8 to 9 feet after he started up. Ordinary care and caution may well have dictated that he continue in motion so as to have the momentum to effect an escape should the lights have proved to be those of a locomotive bearing down on him. He looked at the watchman's shanty. This might be regarded as a normal reaction, and the time this required must not be counted against plaintiff. He observed no watchman. He then looked to the north at a time when his automobile was so near the path of danger that an attempt to stop short of the track would have been unavailing. The southbound locomotive was approaching at 40 miles per hour or more and was only 50 feet from him. He accelerated his automobile in an attempt to escape, attained a speed of 10 to 12 miles per hour, and was able to get all of his automobile except the last 3 or 4 feet across the track when the automobile was struck. It cannot be said as a matter of law that all reasonable men would agree that plaintiff was at fault or that there was no excuse for his failure to look to the north earlier than he did. It was a question for the jury to determine. Smith v. Illinois Cent. R. Co., supra; Humbert v. Lowden, supra; Chicago A. R. Co. v. Pearson, 184 Ill. 386, 56 N.E. 633, and cases cited; Guess v. New York Cent. R. Co., 319 Ill. App. 522, 49 N.E.2d 652; Chicago N.W. R. Co. v. Hansen, 166 Ill. 623, 46 N.E. 1071; Busker v. New York Cent. R. Co., supra, and cases cited.
Turning now to the instructions, appellant first contends that Instruction No. 1 was erroneous in permitting the jury to find that the crossing was unusually dangerous and allowing the jury to find it negligence to run the train at 40 miles per hour. What we have said with reference to the sufficiency of the evidence to sustain the submission of the assignment of excessive speed disposes of this contention adversely to appellant.
Appellant next attacks Instruction No. 2. Appellant is content with the first paragraph of the instruction which refers to the railroad's legal duty to ring a bell or to sound a steam whistle at least 80 rods from the crossing until it reaches the traveled public street and which contains the proviso that the law does not require both whistle and bell to be sounded simultaneously. Appellant claims, however, that the second paragraph of Instruction No. 2 is contrary to the first paragraph and creates an erroneous inconsistency. The second paragraph tells the jury that if the bell was not rung and kept ringing or if the whistle was not sounded and kept sounding, the failure to so ring the bell or sound the whistle would constitute negligence on the part of appellant. Appellant says the word "and" should have been used instead of the word "or" and that the effect of the instruction is to direct a finding against defendant if the jury found the bell was not ringing even though the whistle was sounded or, in the alternative, to find defendant guilty if the whistle was not sounding even though the bell was ringing. This contention is without merit. The proper grammatical construction to be placed on the second paragraph is that the defendant is guilty of negligence if neither act of warning was done, and when read in conjunction with the first paragraph it is difficult to see how the jury could have been misled thereby.
For its next point appellant urges that the giving of Instruction No. 3 on behalf of plaintiff was reversible error because it is an attempt to employ the Missouri humanitarian rule, which does not obtain in Illinois; that it is in conflict with Instruction No. 4, which correctly states the Illinois law that the engine crew had the right to assume that plaintiff would bring his automobile to a stop before reaching a place of danger; and that it imposes upon defendant a duty to protect the occupants of plaintiff's automobile if immediately prior to the time of collision they were in a position of imminent peril, without any qualification as to the exercise of care by plaintiff immediately prior to and at the time he placed himself in a position of imminent peril. Instruction No. 3 is not subject to the first criticism. Philippi v. New York, C. St. L. R. Col., supra. The Philippi case involved a crossing collision which occurred in Illinois. Plaintiff's main instruction therein was based on the Illinois doctrine of discovered peril. It was the same in substance and almost identical in terminology with Instruction No. 3 in the instant case. In that appeal we sustained the giving of the instruction as against the contention that it declared the Missouri humanitarian rule and not the Illinois rule. The same question was raised in a companion case decided by our Supreme Court in Wolf v. New York, C. St. L. R. Co., supra, with the same result.
With respect to the alleged conflict between Instructions Nos. 3 and 4 it is noteworthy that in the Philippi case, supra, plaintiff's Instruction No. 4 was substantially the same as Instruction No. 4 in the instant case. We are unable to perceive any conflict between the two instructions. Under the facts in this case the right of the engine crew to assume that plaintiff would bring his automobile to a stop no doubt arose when the fireman first saw the lights of plaintiff's automobile, so that there was no duty to take action at that moment, but the engine crew no longer had the right to assume that plaintiff would stop after it became apparent that plaintiff was coming forward at an unchecked speed intent on crossing the southbound track, and was in a position of imminent peril. In that view the two instructions are harmonious.
The last criticism of Instruction No. 3 is without merit. The last clause of the instruction requires the jury to find that "at said time" plaintiff was exercising ordinary care for the safety of the occupants of his automobile. The instruction is prefaced by the requirement of a finding of facts "on the occasion mentioned in evidence" when "the Finley automobile was traveling westwardly along McCord street and was approaching the southbound tracks of defendant." Clearly that is the time referred to by the phrase "at said time." We cannot say that the jury was misled by the phrase "at said time" or that the jury necessarily made its findings in the belief that plaintiff was under no obligation to exercise due care prior to the time plaintiff entered a position of imminent peril.
Finally, appellant urges error in the refusal of Instruction C which reads:
"The Court instructs the jury that the law of the State of Illinois did not require the defendant to have a flagman on duty nor to maintain signal lights of any kind at the crossing on McCord street at the time of the collision in question, and the absence of such flagman and signal lights does not afford plaintiff any right of recovery."
Since the failure to post a flagman or maintain signal lights at the crossing was not submitted to the jury or relied on as independent ground of recovery, Instruction C was in the nature of a withdrawal instruction. The refusal of a withdrawal instruction on an abandoned issue is not error. Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512; Hathaway v. Evans, Mo.App., 235 S.W.2d 407, loc. cit. 413. The same is true if Instruction C be regarded as a cautionary instruction. Fuenfgeld v. Holt, Mo.App., 70 S.W.2d 143.
The judgment should be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, affirmed.
BENNICK, P.J., and ANDERSON and HOLMAN, JJ., concur.
On Motion for Rehearing or for Transfer to Supreme Court.
Appellant requests a rehearing on the ground that our opinion conflicts with 12 Supreme Court decisions prohibiting speculation as to the precise distance in which a train can be slackened sufficiently to avoid a collision, and with 7 Supreme Court decision requiring the courts to take judicial notice of the reaction time required by the fireman and engineer to see, apprehend, and act, and of the time necessary for the brakes to be set and to become effective in slakening the speed of the train. Upon serious reconsideration of these questions we have concluded that no such conflict exists under the evidence in this case. The cases cited, with the possible exception of the Elkin and Stark cases, are not "almost escaping" cases. The case at bar, however, is an "almost escaping" case, so that a slight slackening of speed would have allowed the automobile to clear the tracks. As we pointed out in our opinion, a margin of 1/3 of a second additional time would have allowed the necessary clearance to avoid this tragedy. It is true that there must be direct or circumstantial evidence of reaction time and brake setting time requirements in an "almost escaping" case, Hunt v. Chicago, M. St. P. P. R. Co., 359 Mo. 1089, 225 S.W.2d 738, but direct and circumstantial evidence on these vital requirements is present in this case.
Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495, loc. cit. 498; Hutchison v. Thompson, Mo.Sup., 175 S.W.2d 903, loc. cit. 910; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633; Krause v. Piteairn, 350 Mo. 339, 167 S.W.2d 74, loc. cit. 79, 80; Rollison v. Wabash R. Co., 252 Mo. 525, loc. cit. 540-542, 160 S.W. 994; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864, loc. cit. 867, 868; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, loc. cit. 603, 604; Pentecost v. St. Louis Merchants' Bridge Terminal R. Co., 334 Mo. 572, 66 S.W.2d 533; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Shelton v. Thompson, 353 Mo. 964, 185 S.W.2d 777; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870, 872; Steuernagel v. St. Louis Public Service Co., 357 Mo. 904, 211 S.W.2d 696, 698.
Yeaman v. Storms, supra; Gosney v. May Lumber Coal Co., 352 Mo. 693, 179 S.W.2d 51; Shelton v. Thompson, supra; Krause v. Pitcairn, supra; McGowan v. Wells, supra; Stark v. Berger, supra; Dister v. Ludwig, Mo.Sup., 240 S.W.2d 694, loc. cit. 698.
Our calculations as to ability to slacken were based upon the argument advanced by appellant in its brief that no duty fell upon the fireman to act until the automobile was 12 feet from the track; that it was not until plaintiff's car reached that point that it was in danger of being struck. This argument, however, is based upon the unwarranted assumption that there was no evidence from which the jury could infer that plaintiff intended to pursue his journey across the track and that plaintiff's intention was reasonably apparent to the fireman before plaintiff's automobile reached that point. "The rule for which defendant contends does not so limit the zone of imminent peril in the instance of an oblivious plaintiff moving toward, and apparently intending to move into, the path of a moving vehicle." Stith v. St. Louis Public Service Co., Mo.Sup., 251 S.W.2d 693. The place and time at which a person about to go upon a railroad crossing comes into a position of peril has been variously defined as follows: at the moment he approaches so near the point of collision and under such conditions that it was, or should have been, apparent to the motorman that he would not or could not stop his automobile before going upon the tracks, Larkin v. Wells, Mo.App., 278 S.W. 1087; when the motorman saw, or could have seen by the exercise of ordinary care, that plaintiff was intent on pursuing his journey on across the track oblivious to the danger, Kloeckener v. St. Louis Public Service Co., 331 Mo. 396, 53 S.W.2d 1043, loc. cit. 1045; Scott v. Terminal Railroad Ass'n of St. Louis, Mo.App., 86 S.W.2d 116, loc. cit. 118; when he is oblivious to the approaching train, and by his actions and conduct it is apparent to a reasonable, prudent trainman that he is oblivious to the approaching train, Stith v. St. Louis Public Service Co., supra; Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304, loc. cit. 307. The determination of just when the automobile driver comes into and is in a position of imminent peril is for the jury. Harrington v. Thompson, Mo.Sup., 243 S.W.2d 519, loc. cit. 525.
In the case at bar the fireman testified, in addition to the facts we recited in the opinion, that he saw the lights of the automobile a split second before he saw the automobile; that he saw the automobile come out from behind the Goodale crossing at an estimated speed of 35-40 miles per hour; that the automobile did not seem to slow down "any at all" as it came over the crossing; that it seemed to go "right straight across at the same speed"; that although he saw the automobile "coming across there" at 35-40 miles per hour he did not warn and did not attempt to warn the engineer.
Under all the evidence there was no error in submitting failure to slacken speed under the discovered peril doctrine. From it the jury could infer that the automobile reached a position of peril shortly after it came out from behind the obstruction of the boxcars. Even before that time the fireman saw the lights of the automobile. He saw the automobile itself as it emerged, coming straight across at a uniform speed estimated by the fireman at 35-40 miles per hour, without slowing down, yet he did nothing to avoid a collision. The case is quite similar to Werndle v. St. Louis-San Francisco R. Co., Mo.App., 67 S.W.2d 810, 812. In that case the fireman first saw the truck approaching the track about 50 or 60 feet from the crossing when the engine was some 300-400 feet from the crossing. It seemed to the fireman that the deceased was "stepping on the gas and trying to hurry over the crossing." In that case the court held that the truck was in the danger zone when the fireman saw the truck coming upon the outbound track. That case was also an "almost escaping" case and it was held that the submission of the case under humanitarian failure to slacken was proper. See also Rummels v. Illinois Cent. R. Co., Mo.App., 15 S.W.2d 363, and the following cases; Kloeckener v. St. Louis Public Service Co., supra, 53 S.W.2d loc. cit. 1045; Larkin v. Wells, supra; Logan v. Chicago, B. Q. R. Co., 300 Mo. 611, 254 S.W. 705, loc. cit. 711; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161, loc. cit. 165; Homan v. Missouri Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617, loc. cit. 624; Shelton v. Thompson, supra, 185 S.W.2d loc. cit. 779.
If plaintiff's position of peril arose at a point when the automobile was, let us say, 12 feet west of the Goodale siding (approximately 1 second after it emerged from behind the obstruction), the duty to act arose when the engine was 240 feet in distance and 4 seconds in time from the crossing. What time shall we allow appellant's servants to react to the appearance of danger within which to begin to avoid the situation? There was no evidence in the case as to reaction time, but unless a longer time affirmatively appears in the proof the courts recognize that such a reaction time is 3/4 of a second. Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785, loc. cit. 788. Therefore, allowing the fireman 3/4 of a second to react and warn the engineer, and allowing the engineer 3/4 of a second to apply the emergency brakes (during which time interval of 1 1/2 seconds the train would have traveled 90 feet) there would still have remained a distance of 150 feet and a time of 2 1/2 seconds before reaching the point of impact within which the slackening of the speed would have been effective. It must be remembered that a service application of the brakes had been made approximately 1/4 of a mile north of the crossing which drew off about 12 1/2 pounds of air; and that the brake shoes were up against the wheels so that the emergency application would have become effective almost instantly. Furthermore, an additional 1 1/2 seconds would have been gained if the emergency brakes had been set at a point 100 feet north of the crossing. Therefore, since a maximum of 135 feet in distance and 2.2 seconds in time was required for a safe emergency stop, the prompt discharge of the fireman's duty to warn the engineer when the engine was 240 feet north of the point of collision would have allowed plaintiff a full margin of safety within which to escape. The automobile would have been 15.37 feet from the track when the engine was 150 feet from the point of collision. In order to cross in safety plaintiff would have had to travel the following distances: 15.37 feet to the track; 4 feet 8 1/2 inches from rail to rail (of which the court will take judicial notice); 15 feet to allow for the length of the automobile and 2 1/2 feet to allow for the overhang of the locomotive, or a total distance of 37.53 feet. He would have had a minimum of 4 seconds' time in which to negotiate this distance. At 8 miles per hour he could have traveled 48 feet in 4 seconds. During a part of this distance he was traveling 10-12 miles per hour, thus allowing him even more time within which to pass in safety. As a matter of fact the engine would have been stopped before it reached the crossing if the fireman had warned the engineer 240 feet north of the crossing and the engineer had applied the emergency brakes 150 feet north of the crossing. We cannot say as a matter of law that there was not sufficient evidence to go to the jury on the assignment of failure to slacken speed.
Appellant in its motion for rehearing also asserts that our opinion, holding that plaintiff was not guilty of contributory negligence as a matter of law, conflicts with 5 Supreme Court decisions. Appellant lays special emphasis on the Tietze case. In that case plaintiff looked in the direction from which the train was coming at a time when, had he properly exercised his sight, he must have seen the train, but testified that he did not see a train. The court applied the rule that under such circumstances a contention that he did not see the train is obnoxious. In the case at bar plaintiff did not contend that he looked and failed to see on obvious train coming. On the contrary, he contends that he did not look in the direction of the oncoming train, and seeks to justify his failure to look by pointing to the distraction of the lights around the station in the opposite direction, counting upon those lights as a circumstance relieving him from the duty to look before crossing the track. The difference between the two lines of cases is clearly pointed out in the Tietze opinion. Likewise, the Payne case was one in which the plaintiff testified that he looked up and down the track and did not hear the whistle or bell and did not see any train or headlight, although the indisputable facts were that the whistle was blowing, the bell was ringing, the train was approaching and the headlight was burning. The court applied the rule that direct testimony of a party contradictory of and in opposition to conceded and undisputed physical facts should be disregarded by both courts and juries. That is not the case here. In the Mullis case [358 Mo. 230, 213 S.W.2d 945] the court held that the question of contributory negligence was for the jury notwithstanding plaintiff's evidence that he "looked both ways", saw and heard no train, whistle or bell and proceeded onto the main line without again looking; that the presence of a "flasher" warning device is a circumstance to be considered on the question of contributory negligence, for if it is unlit (as plaintiff claimed) it constitutes an assurance that the crossing could be made in safety. This case supports, rather than conflicts with, our opinion. The factual situation in State ex rel. Kansas City Southern R. Co. v. Shain, supra, is so utterly different from that in the case at bar that the case has no application here. In the Howie case there were no distracting circumstances upon which plaintiff relied as a justification for his failure to stop short of the collision. The question whether plaintiff was contributorily negligent was for the jury. Mullis v. Thompson, supra.
Tietze v. New York, C. St. L. R. Co., Mo.Sup., 250 S.W.2d 486; Payne v. Chicago A. R. Co., 136 Mo. 562, 38 S.W. 308; Mullis v. Thompson, 358 Mo. 230, 213 S.W.2d 941; State ex rel. Kansas City Southern R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915, 918; Howie v. St. Louis, S.W. Ry. Co., 360 Mo. 771, 230 S.W.2d 703.
Strictly speaking, appellant's contention that it would be necessary to resort to speculation and guesswork to hold appellant liable on the theory of failure to slacken is not entitled to be reviewed because not timely presented. Weatherford v. Spiritual Christian Union Church, Mo. Sup., 163 S.W.2d 916, loc. cit. 919. This contention was raised for the first time in the motion for rehearing. We have given it full consideration, however, and are convinced that the disposition of the case in the first instance was proper, and that our opinion is not in conflict with the decisions of our Supreme Court. The Commissioner, therefore, recommends that the motion for rehearing or in the alternative to transfer to the Supreme Court be overruled.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.