Evans v. Illinois Cent. R. Co.

Decision Date22 July 1921
Docket NumberNo. 21125.,21125.
Citation289 Mo. 493,233 S.W. 397
PartiesEVANS v. ILLINOIS CENT. R. CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Action by Elizabeth Evans against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Watts, Gentry & Lee, of St. Louis (John G. Drennan, of Chicago, Ill., of counsel), for appellant.

Glendy B. Arnold, of St. Louis, for respondent.

DAVID E. BLAIR, J.

Appeal from the circuit court of the city of St. Louis. The verdict and judgment there were for respondent in the sum of $10,000.

On April 19, 1916, respondent's husband, Harry Evans, was fatally injured, and almost immediately died as the result of a collision between a Ford automobile, moving westward and driven by him, and a train of appellant, consisting of a locomotive and passenger cars, moving northward at the crossing of the terminal railroad tracks over Brooklyn street in the city of St. Louis. Said Brooklyn street at this point is a much-used public street. The accident occurred in the forenoon. Foster Robbins was riding in the automobile with said Evans as it approached the railroad tracks. The uncontradicted evidence shows that the train was moving at a rate of 40 or 45 miles per hour, and that no bell was rung or whistle blown to give warning of its approach. A train could be seen for a distance of several hundred feet south of Brooklyn street from a point 15 feet east of the railroad tracks. As soon as Robbins saw the train, which was at that instant almost upon the crossing, he jumped out of the automobile and escaped injury. The automobile was carried on the pilot of the engine about 500 feet north of the crossing, at which point the train was brought to a standstill. Evans was thrown off a little over 300 feet north of the crossing.

St. Louis Terminal Railway Company and St. Louis Merchants Bridge Terminal Railway Company were joined as parties defendant. Said defendants filed demurrers to the evidence at the close of plaintiff's case, which were given by the court. Defendant Central Railroad Company also offered a demurrer to the evidence at the close of plaintiff's case. This was refused, and said defendant stood on its demurrer.

The amended petition on which the case was tried was in the form usually drawn in such cases, except that it did not charge that the acts of defendant were negligent. Said petition contained the following allegation:

"Plaintiff further states that the death of her husband, Harry Evans, as aforesaid, was caused by defendants' willful, wanton, reckless, and conscious disregard of the life and bodily safety of the deceased in this, to wit, that with knowledge that the crossing of said tracks with said Brooklyn street was much used for travel and was dangerous to travelers using the same the defendants ran said train to and over said Brooklyn street and onto and against the deceased, at a speed of from 40 to 45 miles per hour, without giving the deceased any warning of the approach of said train."

Appellant filed an answer containing a general denial and an allegation as follows:

"Further answering, this defendant says that the death of Harry Evans, referred to in plaintiff's second amended petition, was caused by hie own negligence directly contributing thereto, in this, to wit: That on the occasion referred to in plaintiff's second amended petition the said Evans negligently and carelessly drove an automobile upon the railroad track directly in front of the train operated by the defendant Illinois Central Railroad Company, and so near to said train that it was impossible, by the exercise of ordinary care on the part of said defendant, to stop said train after the appearance of said Evans upon and near said track, and, in so driving upon said track, the said Evans negligently and carelessly failed to look and listen for the approach of trains, and negligently and carelessly failed to avoid being struck by trains."

The portion of said answer above quoted was stricken out on plaintiff's motion on the ground that the same constituted no defense to the cause of action set forth in plaintiff's petition.

At the request of respondent the court gave instruction No. 1, detailing the facts necessary for the jury to find to authorize a verdict for respondent. It is unnecessary to quote it in full. It concludes as follows:

"That under all the facts and circumstances, as shown by the evidence, the running of said train over said Brooklyn street at said speed, if you so find, was a willful, wanton, reckless, and conscious disregard by the servants of said defendant in charge of said train of the life and bodily safety of the deceased, and directly caused, or directly contributed to the cause of, the death of the deceased, then your verdict will be for the plaintiff and against said defendant Illinois Central Railroad Company."

Instruction No. 2, given at the request of the respondent,, is as follows:

"The court instructs the jury that the plaintiff is not entitled to recover in this case on the ground of mere negligence on the part of the defendant's servants in charge of said train, but before you can find for the plaintiff you must believe and find from all the evidence that the conduct of the defendant's servants in the running and operation of said railroad train at the time and place mentioned in the evidence was characterized by a willful, wanton, reckless, and conscious disregard of the life and bodily safety of the deceased, and, unless you so find, your verdict must be for the defendant."

Thus it is clear that the theory on which the case was tried below was that the mere act of the servants of defendant, in moving Its train at a speed of from 40 to 45 miles per hour, over tracks laid in a public street and across another much-used public street, and in a densely settled portion of the city, where people are likely to use said crossing at anytime, without ringing the bell or blowing the whistle, is sufficient to authorize submission to the jury of the question whether such act was willful, wanton, reckless, and in conscious disregard of the life and bodily safety of respondent's husband, without showing that the engineer or fireman intentionally ran said train upon respondent's husband, or saw him approaching the track or in a position of danger, or likely to be in such position of danger, or within what distance such train could have been stopped if deceased had been seen in a position of peril and oblivious to such peril. No evidence was offered tending to show that the engineer or fireman saw deceased or intentionally said train upon him, or what they were doing as the locomotive approached the scene of the accident or what could have been done by them to prevent collision.

The acts of respondent's husband, as shown by the evidence before us, in attempting to cross the railroad tracks in broad daylight at a point where he had reason to expect trains at any moment, and where he had an unobstructed view of any trains that might be approaching the crossing, without looking for a train, or where, if he had looked, he could have seen the train approaching for a distance of 300 to 600 feet, constituted negligence on his part that would bar a recovery by his widow in an action based on an allegation of negligence. Hayden v. Railroad, 124 Mo. 566, 28 S. W. 74; Kelsay v. Railroad, 129 Mo. 362, 30 S. W. 339; Huggart v. Railroad, 134 Mo. 673, 36 S. W. 220; Stotler v. Railroad, 204 Mo. 619, 103 S. W. 1.

It appears from the evidence that a great many trains moved over these tracks. One witness estimated the number at 100 daily. At and from a point about 15 feet from the track deceased could have seen the train coming if he had looked. There was no obstruction to the view. No reason why the...

To continue reading

Request your trial
135 cases
  • Dobson v. St. L.-S.F. Ry. Co.
    • United States
    • Missouri Court of Appeals
    • September 28, 1928
    ... ... Evans v. Railroad, 289 Mo. 493, 233 S.W. 397, l.c. 399; Monroe v. Railway, 297 Mo. 633; 249 S.W. 644; ... ...
  • Scott v. Mo. Pac. Railroad Co.
    • United States
    • Missouri Supreme Court
    • August 3, 1933
    ... ... Ry. Co., 272 Pac. 128; Ek v. Ry. Co., 294 Pac. 663; Hartman v. Ry. Co., 294 Pac. 913; Evans v. Ry. Co., 289 Mo. 493; Woodward v. Bush, 282 Mo. 163; Moore v. Ry. Co., 297 Mo. 633; Gersman v ... ...
  • Perkins v. Kansas City Southern Ry. Co., 29380.
    • United States
    • Missouri Supreme Court
    • April 2, 1932
    ... ... Weick Bros. Undertaking Co., 16 S.W. (2d) 60; Threadgill v. United Rys., 279 Mo. 466; Evans v. Ill. Cent. Railroad Co., 289 Mo. 493, 233 S.W. 397; State ex rel. Hines v. Bland, 237 S.W. 1019; ... ...
  • Smith v. Wells, 28495.
    • United States
    • Missouri Supreme Court
    • October 14, 1930
    ... ... Wells, 295 S.W. 129; Moore v. Ry. Co., 176 Mo. 544; Spaunhorst v. Rys. Co., 238 S.W. 820; Evans v. Railroad Co., 289 Mo. 493; Thomas v. Wells, 299 S.W. 72; Chawkley v. Ry. Co., 297 S.W. 26; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT