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

• Decision Date: 02 March 1920
• Docket Number: No. 21134.,21134.
• Citation: 220 S.W. 484
• Parties: JONES v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

220 S.W. 484

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

No. 21134.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Motion for Rehearing Denied April 10, 1920.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Lillian Jones against the St. Louis-San Francisco Railway Company. A directed verdict for defendant was set aside on plaintiff's motion for new trial, and defendant appeals. Order for new trial affirmed, and cause remanded.

W. F. Evans, E. T. Miller, and A. P. Stewart, all of St. Louis, for appellant.

C. Percy Carr, of St. Louis, for respondent.

GOODE, J.

This action was brought to recover for the death of plaintiff's husband, who was killed by a train of the defendant company between 6 and 7 o'clock on the evening of December 23, 1916. The mangled body of the deceased, with his coat dragged up over his head, was found 300 feet west of the crossing of defendant's tracks on Sulphur avenue, in the city of St. Louis, and a few feet north of the main north or west-bound track, there being four tracks of defendant's line along there, two of which are switch tracks. The deceased worked for the Laclede-Christy Clay Products Company, whose works are south and east of the tracks of defendant company. He lived on Knox avenue, a block or two west of Sulphur, and about that distance from his place of work. He went home shortly after 15 o'clock on the evening of the 23d, ate his supper, did a few chores about the house, and then went to a store on the north side of Manchester avenue near the corner of Sulphur, the former being an east and west thoroughfare. Ho was shown to have taken a drink of whisky in a saloon and to have bought a flask of whisky, of which the seal over the stopper was unbroken when his body was found later. The deceased had an engagement to be at the Laclede-Christy works that evening to help an employé by the name of Mailer in some task. To go in the most convenient way to the works from the north side of Manchester avenue, he would cross the Missouri Pacific Railway Company's tracks, which were about 250 feet north of the defendant's tracks, then cross the defendant's tracks, traveling all the time on Sulphur avenue. The night was dark, foggy, and misty. Where Sulphur avenue crosses defendant's tracks, it is unimproved and like a country road. At the crossing of the tracks heavy boards 14 to 16 feet long are laid in the part of the avenue most used, and over these boards vehicles and pedestrians pass. Defendant's main line crosses Sulphur avenue on a curve which begins a considerable distance east of Sulphur, and approaches that avenue in a general northeast to southwest curve, but before reaching the avenue breaks into a smaller curve which extends a short distance, and then the line resumes the larger one before crossing Sulphur and continues in this course to the west; the total length of the main curve being about three-quarters of a mile. Eight or 10 feet north of defendant's track is the little station house of Cheltenham. North of that about 100 feet is a small coal shed, and just north of the shed is the office of the Laclede-Christy Company, the works of which, as heretofore stated, lie south of the Frisco tracks. These several buildings more or less obstructed the view to the east of one walking south on Sulphur, but the testimony showed that 100 feet north of the Frisco tracks, when between the station building and the coal shed of the Laclede-Christy office building, a train approaching from the east could be seen, and when 8 or 10 feet north of the north Frisco track—that is, after passing the southeast corner of the station house—a train could be seen 150 feet away. But there is testimony, too, that a tennis court to the east was somewhat in the way of one's view of a train coming from that direction, as was also some tiling or clay pipes. Just how much this view was obstructed thereby is left uncertain. There was neither gate watchman nor light at the crossing of the avenue and defendant's lines. Deceased was not seen...