Gibson v. St. Louis-San Francisco Ry. Co.

• Decision Date: 24 May 1928
• Docket Number: No. 4267.,4267.
• Citation: 9 S.W.2d 85
• Parties: GIBSON v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

9 S.W.2d 85

GIBSON v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4267.

Springfield Court of Appeals. Missouri.

May 24, 1928.

Rehearing Denied September 18, 1928.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Action by Herbert Gibson against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

Phillips & Fulbright, of Poplar Bluff, for respondent.

COX, P. J.

Action for damages for the death of the wife of plaintiff, alleged to have been caused by the negligence of defendant. Several acts of negligence were alleged in the petition, but only one ground of negligence was submitted to the jury, and that was the violation of the speed ordinance of the town of Portageville, which restricted the speed of trains within its coporate limits to 5 miles per hour. Plaintiff recovered a judgment for $2,000 which was rendered in his favor. Defendant appealed.

The defendant assigns as error the action of the court in overruling a demurrer to the evidence and the refusal of instructions declaring the ordinance offered in evidence void as unreasonable.

The ordinance of the town of Portageville limited the speed of all trains within its corporate limits to 5 miles per hour. The unreasonableness of the ordinance was not pleaded in the answer, and to our minds is not so glaringly unreasonable on its face as to require the court to exclude it, when offered in evidence, or to instruct the jury that it was unreasonable and void for that reason. Generally, to raise the question of the unreasonableness of an ordinance, its unreasonableness must be pleaded, and the facts which render it unreasonable must be alleged. State ex rel. v. Missouri Pacific R. R. Co., 262 Mo. 720, 734, 174 S. W. 73; City of St. Louis v. United Railways, 263 Mo. 387, 455, 174 S. W. 78, 94; 43 Corpus Juris, 310, § 322; also page 576, § 926, and cases there cited. The unreasonableness of the ordinance, therefore, is not before us, and for the purposes of this case its validity remains established.

The demurrer to the evidence is based on the contention that plaintiff's evidence shows that the deceased was guilty of contributory negligence as a matter of law. This makes necessary an examination of the evidence. The facts are substantially as follows:

The track of defendant runs north and south through the town of Portageville. There are three tracks there; the west track is the main track, and two switch tracks lie east of it. The depot is located on the west side of the west track. Late in the night of April 1, 1926, or in the early morning of April 2, but while still dark, the deceased, in company with two other ladies and two men, arrived at the depot of defendant at Portageville, intending to board a local train going south to Hayti. The depot at Portageville seems to be without toilet facilities, and these three ladies left the depot and traveled south along the railroad track to a street crossing, a distance of about 175 feet, then turned east, and passed over the tracks of defendant. After four or five minutes they started to return to the depot, and as they approached the tracks of defendant they saw the headlight of a train approaching from the north, which they supposed to be the train they were expecting to board. They started to run to get across the tracks of defendant and back to the depot to board the train. When the headlight of the approaching train was seen by them, the deceased exclaimed: "My God, there's the train, and Buddy has got our tickets bought." There is some evidence that from that time she continued running across the tracks, looking ahead, and not looking at the light of the approaching train any more; but this evidence is not conclusive. She was struck by the engine of the train before she got over the west track, on which the train was running, and was killed. The train that struck her was a fast train, which did not stop at Portageville and was running 35 to 40 miles per hour.

These are the main facts connected with the accident. Other pertinent facts are as follows:

An ordinance of the town of Portageville limited the speed of all trains within its corporate limits to 5 miles per hour. This train passed through the town at this time on its regular schedule, which placed it shortly ahead of the local train, which deceased and her companions expected to board. It had, for a long time, on its regular run, passed through the town at about the same speed. The deceased had lived in Portageville for at least three weeks prior to her marriage to plaintiff, which took place about three months before she was killed. The place of her residence in the town is not shown, nor is there any evidence that she knew that two trains passed at about the same time. There was some evidence tending to show that it is very difficult to judge of the...