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

• Citation: 272 S.W. 1029
• Decision Date: 05 May 1925
• Docket Number: No. 18846.,18846.
• Parties: PEDIGO v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Court of Appeal of Missouri (US)

272 S.W. 1029

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

No. 18846.

St. Louis Court of Appeals. Missouri.

May 5, 1925.

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

"Not to be officially published."

Action by Irene Pedigo against the St. Louis-San Francisco Railway Company. From a judgment sustaining defendant's motion for a new trial, plaintiff appeals. Affirmed and remanded.

McMahon & Berthold, of St. Louis, for appellant.

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

NIPPER, J.

This is an action brought by plaintiff against the defendant to recover for the death of her husband, which occurred by reason of his being struck by one of defendant's passenger trains when he was attempting to cross the defendant's tracks while driving a Dodge touring car at the intersection of Themis and Water streets, in the city of Cape Girardeau. The accident occurred on the 1st of November, 1922. Water street is a street in Cape Girardeau, which runs north and south along the river front, next to the levee on the east. To the west of Water street lies the city of Cape Girardeau. Themis street is a street running east and west, and intersects Water street from the west. Defendant's railroad tracks run north and south over Water street. Deceased was driving east on Themis street, and had started to the water front, where a boat was just making its landing. He had started to the boat landing, and was traveling eastward and down grade toward the river. The railroad track also runs slightly down grade at this point. The passenger train of defendant was arriving from the north at about noon. The automobile was traveling at a rate of speed of from 6 to 10 miles per hour. It is difficult to tell just how fast the train was being operated. Some witnesses place the speed of the train at as high as 25 miles an hour, while others testified that it was going much slower.

The allegations of negligence set forth in the petition are: First, violation of an `ordinance of the city of Cape Girardeau which prohibits trains running at a greater rate of speed than 8 miles per hour; second, failure to warn; third, the humanitarian or last chance doctrine, in that defendant's agents and servants, after deceased came into a position of peril, failed to exercise ordinary care to diminish the speed, or to stop the train in time to avert the injury. Plaintiff recovered judgment for $6,000.

The court sustained defendant's motion for a new trial on two grounds set out in the motion : First, because the court had erred in refusing to give the peremptory instructions in the nature of demurrers requested by defendant ; and, second, because the verdict was against the weight of the evidence.

There are two other streets it becomes important to mention in connection with a discussion of the facts in this case: The first is Broadway, running east and west, and the first street north of Themis street; the other is Independence street, running east and west, and the first street south of Themis street. All of these three streets terminate at Water street. Defendant's tracks are located on the east side of Water street. It is about 25 feet from the west curb line of Water street to the west rail of the main line railroad track. Just north of Broadway, and east of the main track, is an old depot belonging to the defendant. This old depot is about 500 feet north of the place where the accident occurred. The new depot is located just south of Independence street. Deceased was 50 years old, and was engaged in the business of driving a service car. The cowcatcher of the engine hit the automobile about the middle, and carried it about 150 or 160 feet south of Themis street.

Plaintiff's witness Thompson, said that he was standing at the corner of Independence and Water streets at the time the accident happened, and that the train was running about 25 miles per hour; that the train could be seen from the time it reached the old depot, 500 feet away, until it struck deceased's car; and that there was nothing to obstruct the view.

R. T. Boswell, another witness for plaintiff, said he was about 300 feet north of Themis street when Pedigo entered Water street from the west. The engine of the train was then about even with him, traveling at about 15 or 18 miles per hour. When the second car from the front was about even with him, the emergency brakes were put on; that there was a warning given, when the train was close to Pedigo, by blowing the whistle; and the bell was ringing when the train passed Broadway, about 340 feet north of Themis street.

The evidence discloses that the deceased stated to two or three witnesses immediately after his injury that he did not see the train, and, also, that he did not look.

There were seven or eight witnesses who testified on behalf of defendant.

J. G. Kies, who was a passenger on the train which struck deceased, testified that there were about 5 coaches to this train, and that he was in the fourth one from the front; that, about the time he passed the old depot, three short blasts of the whistle were blown, and the emergency brakes were put on, and the speed of the train slackened abruptly. The engine at that time was evidently about halfway down the block from Broadway toward Themis street. He said he did not remember hearing the bell ring, but that he would not be positive about that. He also said that about the time he passed the old passenger station the train was traveling at a rate of speed of about 8 or 10 miles an hour.

W. A. Lawler testified that at the time of the injury he was standing on the corner of Water and Independence streets, a block south of where the accident occurred, and was looking north; that he saw the train when it came into sight up near the old passenger station, and heard the whistle blow four times when the train was just north of Themis street, at which time the automobile driven by deceased was "coming down right onto the track." He further stated: "From what I could see they must have been right together, right at the same time, and come right into contact."

John Clifton testified that he was standing on the east side of the track, about 200 feet south of Themis street, facing north, and saw Pedigo's machine when it came off of Themis street; that the automobile was traveling slowly—not over 4 or 5 miles an hour; that Pedigo did not turn his head in either direction after he came onto Water street; that he saw Pedigo after he had seen the train coming north of the old depot; that, when the...