Laun v. St. Louis & S. F. R. Co.
Decision Date | 25 February 1909 |
Parties | LAUN v. ST. LOUIS & S. F. R. CO. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Gasconade County; R. S. Ryors, Judge.
Death action by Mary Laun against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.
W. F. Evans and Woodruff & Mann, for appellant. Harry Clymer, Lorts & Bruer. and R. A. Bruer, for respondent.
Plaintiff, the widow of George Laun, deceased, brings action for the alleged wrongful killing of her husband by one of defendant's trains as it passed through the city of St. James, in Phelps county, Mo., June 14, 1904. The negligence charged is (1) running in excess of the ordinance speed — i. e., six miles per hour — (2) failure to ring the bell upon the approach of the street crossing where the accident occurred; and (3) carelessly and negligently running said train upon and against the deceased after the employés knew, or by the exercise of ordinary care might have known, the perilous situation of deceased. In other words, the last charge was an appropriate pleading of the humanitarian doctrine. In the instructions asked and given for the plaintiff the failure to ring the bell is abandoned, as is also the humanitarian doctrine, and the case submitted solely upon the excessive rate of speed. By change of venue the cause was sent from Crawford county, the place of its institution, to Gasconade county, where it was tried. By answer the defendant, first, invokes a general denial; and, secondly, an appropriate plea of contributory negligence. Plaintiff introduced her evidence, to which the defendant demurred, which demurrer being overruled the defendant declined to introduce any evidence, whereupon the jury was instructed and in regular course returned a verdict for the plaintiff in the sum of $5,000, which was followed by a judgment for such sum. Motion for new trial, timely made, proving futile, the defendant appealed.
The serious question in this case is the question of contributory negligence upon the part of the deceased. The negligence of the defendant in running in excess of ordinance speed is not denied. The rate is variously estimated at from 25 to 35 miles per hour, and the latter is perhaps more nearly correct. The accident occurred at the crossing of Jefferson street, in the city of St. James. Defendant's railway runs practically east and west through said city and Jefferson street runs north and south, so that they cross nearly at right angles. This crossing is 100 to 125 feet east of the depot of the defendant, and at the east end of the depot platform. The street is 80 feet in width and the one most generally used in going to and from the north and south parts of the city. Deceased left Miles' store, which is south of the railroad, and on the west side of Jefferson street, evidently to cross to the north part of the city. In so doing he walked along the west side of Jefferson street and walked north. Between him and the east end of the depot platform was a side track and the main track of defendant's railway. The space between the two is given at 20 feet. In his course he reached the switch track first, and crossed it. On this occasion two trains came into St. James within a few minutes of each other; as best we can gather, within three minutes of each other. Both trains consisted of an engine and caboose. The station agent said that he did not signal a clearance to the latter train because it was following the other too closely, and he signaled it to stop, and that it finally stopped some 600 or 800 feet beyond the depot at the stockyards. This, of course, bears upon the rate of speed, and, as indicated above, might tend to show a speed up to the limit placed by other witnesses of 35 miles per hour. But, as the negligence of the company stands conceded, we are more concerned in the actions of the deceased, inasmuch as they must bear upon the question of contributory negligence. For the plaintiff there were seven witnesses, including herself. She did not see the accident nor did F. R. Elliott, the station agent, nor C. F. Burge. Their testimony is not therefore directly valuable upon the question now in hand. The other witnesses upon this question testify thus:
H. H. Pinto says: On cross-examination, he further said: "
George Strattman, a boy 13 years who was on the depot platform, said: On cross-examination he put it thus:
West Barnes, who was on the depot platform, says: ...
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