Peterson v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 12 June 1900
• Citation: 156 Mo. 552,57 S.W. 709
• Court: Missouri Supreme Court
• Parties: PETERSON v. ST. LOUIS, I. M. & S. RY. CO.

57 S.W. 709

156 Mo. 552

PETERSON v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 12, 1900.

RAILROADS — DEATH AT CROSSING — CONTRIBUTORY NEGLIGENCE.

Plaintiff's intestate tried to cross defendant company's tracks in front of a train, whose approach could be seen several thousand feet. The engine had whistled a short interval before, the bells were ringing, and the gates were down. He was struck by the train and killed. Held, that he was guilty of contributory negligence, and plaintiff could not recover, notwithstanding the train was running at a higher rate of speed than permitted by a city ordinance.

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by Margaret Rose Peterson against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an action by plaintiff, the widow of Henry Peterson, deceased, against the defendant, for $5,000 damages for the death of her husband, which is alleged in the petition to have occurred in the city of St. Louis on the 30th day of November, 1896, while he was walking along on Ivory street, by reason of the negligence of defendant in running its train of cars over him without ringing its bell, and while running its train at a rate of speed in excess of that which is allowed by the ordinance of said city. The answer was a general denial and a plea of contributory negligence on the part of the husband of plaintiff. The accident occurred at the point where defendant's road crosses Ivory street. At this point Ivory street runs northeast and southwest, while defendant's parallel railroad tracks run nearly east and west. Trains moving east at this point occupy the north track, while trains moving west occupy the south track. Just east of Ivory street the Kirkwood Branch of defendant's road joins the main line on the south. After dark on the evening of November 30, 1896, plaintiff's husband was going in a northerly direction on said street, and immediately after crossing the tracks of the Kirkwood Branch a freight train going east passed, while at the same time a passenger train on the main line going west, running at the rate of about 25 to 30 miles per hour, came up. In the meantime deceased had stepped upon the north track, in front of a passenger train going west, and about the time he was to take the last step off of the track he was struck by the engine of the passenger train and killed. The whistle on the passenger train had been sounded for the crossing of Ivory street some two or three blocks before reaching it. When the engineer in charge of the locomotive first saw deceased he was about 30 feet from Ivory junction crossing. He was then crossing the track in front of the train from the west side or south side onto the east side. The engineer immediately put on the brakes, sounded the danger signal three or four times, and did everything that he could to prevent the accident. The train ran about 400 feet after the accident before it stopped. The railroad track east of Ivory street is comparatively straight for about 1,500 feet, but just west of this street it curves to the north. The track is nearly about level at this crossing. At the time of the accident the train was running at the rate of 30 miles per hour, while by the ordinances of the city the maximum rate of speed of steam cars was 20 miles per hour.

The court, at the instance of plaintiff, instructed the jury as follows: "(1) The court instructs the jury that if you believe, from the evidence, that Henry Peterson, the husband of the plaintiff, was by the defendant's locomotive struck and killed while crossing said defendant's road at or near the crossing of Ivory street, in the city of St. Louis, and that said striking and killing were the result of and occasioned by the negligence or unskillfulness of the servants, engineer, or employés of the defendant conducting and managing said locomotive, they will find for the plaintiff $5,000 in damages: provided, they further believe that deceased's contributory negligence, if any, did not directly contribute to said injury; and the burden of showing such contributory negligence on the part of the deceased is upon defendant. (2) Although the jury may believe from the evidence that Peterson was negligent in crossing the railroad track immediately in front of an approaching train, still he had a right to presume that defendant would obey the law, and not run its train more than twenty miles per hour. (3) The court instructs the jury that if you believe from the evidence that Henry Peterson, at the time he was killed, was the husband of plaintiff, and that said suit was brought within one year after the death of said Henry Peterson; and if you shall further believe from the evidence that the place where said Henry Peterson was struck by defendant's train was at or near a public crossing of defendant's railroad in the city of St. Louis, Missouri,...