Laun v. St. Louis & S. F. R. Co.

Decision Date25 February 1909
PartiesLAUN v. ST. LOUIS & S. F. R. CO.
CourtMissouri 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.

GRAVES, J.

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: "Q. How long did you watch Mr. Laun? A. I watched him till he got across the street, or clear across the railroad, I mean till he got to the main track. Q. What, if anything, did you see Mr. Laun do to ascertain if there was a train coming from the east? A. Why, nothing more than he looked when he got between the two. He crossed the side track before he got to the main track. He first glanced his head down the track. He looked east the direction the train was coming. Q. Now, this track he crossed was a switch to the main line? A. Yes, sir; that is what I saw him cross. Q. He had crossed the street and crossed the switch track, and, as I understand you, he was between the main track and the switch track when he paused and looked east? A. Yes, sir." On cross-examination, he further said: "Q. You heard the train go through a minute before that, and then you stepped out to see what it was? A. No, sir; I stepped to the door at leisure, as I had nothing else to do at that time. Q. Well, the train was a block away then, in plain view and hearing? A. Yes, sir; it was. Q. Where was Mr. Laun then? A. He was right close to the side track; right close to the main track, I mean. Q. He crossed over on the side track? A. he crossed over to the side track, and, when he got half way between the side track and the main track, he kind of paused and turned his head around. Q. He looked toward the engine? A. He looked that way. Q. And at the time the engine was right at him? A. It was not very long. Q. Well, it was right at him? A. It was back, I guess, 40 or 50 feet. Q. And he started to run across, didn't he? A. Yes, sir. Q. He tried to beat it to the crossing — that is what he tried to do? A. I do not know. Q. That is the way it appeared to you, was it now? Is not that a fact? He jumped like he would have to hurry to get across? A. Yes, sir; he would have to hurry of course to get out of danger. Q. When he stopped, he was not in danger? He was between the two tracks? A. Yes, sir."

George Strattman, a boy 13 years who was on the depot platform, said: "Q. Where was he when you first saw him [Laun]? A. He was right there at the switch, coming across the track. Q. On which side of the main track is the switch? A. On the south side. Q. When you first saw him, was he at the switch? A. He was out there coming across. Q. What was he doing? A. He was walking across there. Q. Did you see him as he got between the switch and the main line? A. Yes, sir. Q. After he had crossed over from the side track before he got to the main line? A. Yes, sir; I saw him then. Q. What did he do? A. He just looked east. Q. Was that the direction the train was coming from? A. Yes, sir; it was a west-bound train. Q. What did he do after he looked east? A. He came on across with his head down. Q. What happened then? A. He started to cross the other track, and, when he got a little ways, he started to run. He got about middle ways of the main track, and he started to run across. I do not know if it was the middle. He was about to that railing. Q. On the north or south side? A. On the south side. Q. And he started to run across? A. Yes, sir. Q. Did you see the train hit him? A. Yes, sir." On cross-examination he put it thus: "Q. And you say you saw Mr. Laun coming from the south? A. Yes, sir. Q. Where was he, when you first saw him? A. He was at that track. Q. Side track? A. I guess it is that switch track. Q. He came from that, and before he got onto the main track he looked east? A. Yes, sir; he looked that way. Q. Where was the engine then? A. I did not see the engine until he got on the track. Q. When he got at the south rail, you saw him run? A. Just when he got to that rail, he went to run across it. Q. He was across two rails when he looked east? A. He was between two tracks when I saw him look east. Q. When he got to the south rail, he started to run? A. Yes, sir. Q. It got him before he could get across. A. He was about across when it hit him. Q. He was going on a run was he? A. Yes, sir. Q. Hurrying across? A. Yes, sir."

West Barnes, who was on the depot platform, says: "Q. Where was Mr. Laun when you first saw him prior to the accident? A. He was between the side track and the main track. Q. Did you see him as he came from Miles' store, on the south side of the railroad? A. No, sir. Q. What was he doing when you saw him in between the two tracks? A. He was walking along. Q. He was walking along? A. Yes, sir. Q. What do you know of his looking for a train, east or west? A. I do not know. Q. Where did you see him next? A. I saw him about the middle of the main track. Q. What was he doing at that ...

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