Peters v. Lusk

• Decision Date: 06 November 1918
• Docket Number: No. 15080.,15080.
• Parties: PETERS v. LUSK et al.
• Court: Missouri Court of Appeals

206 S.W. 250

200 Mo. App. 372

PETERS v. LUSK et al.

No. 15080.

St. Louis Court of Appeals. Missouri.

November 6, 1918.

Rehearing Denied November 19, 1918.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Martin C. Peters, administrator of the estate of William 0. Peters, deceased, against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad. From judgment for plaintiff, defendants appeal. Reversed.

E. T. Miller, A. E. Haid, and A. P. Stewart, all of St. Louis, for appellants. Blodgett & Rector, of St. Louis, for respondent.

BECKER, J.

This is an action brought by the administrator of the estate of William 0. Peters, deceased, to recover damages for the death of the said Peters under section 5425, Revised Statutes of Missouri 1909. Upon trial a verdict and judgment resulted for plaintiff in the sum of $3,500, and defendants appeal.

Peters' regular occupation was that of railroad brakeman. He was 30 years old and unmarried. One week prior to his death, Peters had gone to Valley Park, Mo., from St. Louis, having obtained temporary employment for a week in some factory. There is testimony that on Saturday, October 11, 1913, the night on which Peters was killed, he had intended to return to his brother's home in St. Louis.

The St. Louis & San Francisco Railroad Company maintained a depot at Valley Park. The depot which was then in use was situated on the north side of their tracks, while on the south side of the tracks there was in the course of erection a new station building located nearly opposite the old depot. The space between these two station buildings is referred to as a "cinder plateau." From the south there is a street which runs up to the new depot building almost parallel with the west line thereof. This street turns abruptly at the new station and runs west parallel with the Frisco tracks for a distance of 100 yards or more, and then turns north crossing the tracks. From the point where this street thus turns to the north, a cinder path extended north to the tracks, passing nearto and west of the new station. Tickets could only be bought at the old station, so that one coming from the south had to walk along the cinder path and then cross the cinder plateau traversed by defendants' tracks in order to reach the old station.

A west-bound express train, known as "No. 5," which struck and killed the deceased, was due at Valley Park at 9:50 p. m., but was not scheduled to stop there. On the night in question, this train coming from St. Louis approached Valley Park from the east running on the main track, which was the first track north from the new station building. The tracks immediately between the depots, for the purposes of this case, may be considered as running east and west, and a short distance east of the depots the tracks curve to the southeast. Just what distance east of the station this curve begins is not clear from the record; one witness putting the distance as low as 150 feet, while others estimated the distance to be a quarter of a mile.

There is testimony that an east-bound "local" passenger train, which it appears was operated only between St. Louis and Valley Park, was scheduled to leave the latter place within a few minutes after the express which killed Peters passed through. It may be inferred from the record that the deceased had expected to take this local train to St. Louis and had proceeded from that part of the town which lies south of the tracks north along the street and cinder path above mentioned to the station grounds, and that he was struck near and perhaps a little distance west of the new station while attempting to cross the main tracks in order to reach the station or platform on the north side. His body was found lying 6 or 8 feet north of the track On which the express was operated and near a mail crane said to be situated about 15 to 20 yards west of the new station.

According to witnesses for plaintiff, the rate of speed at which the train passed the station at Valley Park was between 40 or 50 miles per hour, and these witnesses, though in a position to have heard a whistle sounded or bell rung, testified they heard none.

One of plaintiff's witnesses testified that—

"The train slipped through quietly, kind of stealthily away. The train did not make much noise. It was coming downgrade there."

Another of plaintiff's witnesses testified that he and some companions were returning to the Meremas Canoe Club from a picture show situated in that part of the town which lies south of the railroad tracks, and when they were within about 200 feet of the new station they observed the headlight of the west-bound express approaching from the east, and that the rays of the headlight were thrown down between the two stations; that the train was then about 200 yards away from the depot; that at the time he noticed the headlight of the train he observed a man standing at the southwest corner of the new station; that he lost sight of this man, and a few minutes later, after the train had passed, he saw the body of this same man, as he believed, lying north of the tracks near the mail crane mentioned above.

The testimony in defendants' behalf tended to show that the train which struck and killed the deceased was operated through Valley Park at about 20 to 25 miles per hour; that the locomotive had an automatic bell which was kept ringing constantly from the time the train left St. Louis until it had gotten a mile or so beyond Valley Park; that the locomotive was equipped with an electric headlight which threw a brilliant light, the rays of which struck the ground about 90 feet in front of the locomotive; that any object closer to the locomotive than 90 feet was in the dark; that the engineer whistled for the station when about 1 ½ miles east thereof and gave a road crossing signal when 100 to 150 yards east of the station; that as the train passed through Valley Park the fireman was engaged in "firing"; that the engineer saw...