Thomas v. Chicago, R. I. & P. Ry.
Citation | 271 S.W. 862 |
Decision Date | 14 April 1925 |
Docket Number | No. 18876.,18876. |
Court | Court of Appeal of Missouri (US) |
Parties | THOMAS v. CHICAGO, R. I. & P. RY. |
Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.
"Not to be officially published."
Action by William Thomas against the Chicago, Rock Island & Pacific Railway. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.
R. W. Griffith, of Granite City, Ill., and William H. Douglass, of St. Louis, for respondent.
This is an action under the Damage Act (Rev. St. 1919, §§ 4217-4219), brought by plaintiff for the wrongful death of his wife, Elizabeth Thomas. The cause was tried to a jury. There was a verdict for plaintiff for the sum of $4,200, and judgment was given accordingly. Defendant appeals.
The accident which caused the decedent's death occurred at the intersection of defendant's railroad with Pennsylvania avenue, in University City, Mo., on April 18, 1922, about 9 o'clock in the forenoon. There were four railway tracks at this intersection. The tracks ran east and west, and Pennsylvania avenue ran north and south. Defendant's main track was the avenue, she was struck by the locomotive of a west-bound train on the main track of defendant's railroad. As she approached the track, her view of the approaching train was obstructed by the box cars on the switch. Pennsylvania avenue is a much-traveled thoroughfare in a populous suburb of a great city.
The decedent was a resident of Granite City, Ill. She was in ill health, and was taken to the home of Mrs. Ida Tammany, at Brentwood, in St. Louis county, for treatment. She was suffering from a nervous breakdown involving a serious mental disturbance. She labored under a delusion that she was spiritually lost. She was nervous and restless, and constantly walked to and fro repeating that she was eternally lost. On the morning of the accident she left the Tammany home without the knowledge of the attendants or others in charge, and was next seen when she alighted from a Kirkwood-Ferguson car at Pennsylvania avenue.
John Wasson, who witnessed the accident from the south door of the drug store, testifying for the plaintiff, described the details of the accident as follows:
The various versions of the accident, as detailed by defendant's witnesses, are as follows:
J. M. Neaf:
Mike Flynn:
Jess Rowe:
John Taylor:
George C. Coyle:
Mrs. Hazel Calvert:
There was evidence on behalf of the defendant tending to show that the statutory signals were given and that the automatic crossing bell was ringing as the train approached the crossing. There was evidence for plaintiff tending to show that the statutory signals were not given.
The defendant produced as a witness on Its behalf the engineer who was operating its locomotive at the time of the accident. The plaintiff objected to the competency of this witness, on the ground that Mrs. Thomas, the other party to the transaction or cause of action, was dead. The court sustained the plaintiff's objection, whereupon the defendant proffered testimony to be given by the witness as follows:
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