Thomas v. Chicago, R. I. & P. Ry.

Citation271 S.W. 862
Decision Date14 April 1925
Docket NumberNo. 18876.,18876.
CourtCourt of Appeal of Missouri (US)
PartiesTHOMAS 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.

SUTTON, C.

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 `southernmost of these tracks. Just north of the main track was a switch track, and north of the switch track were the tracks of the Olive-University and the Kirkwood-Ferguson street car lines. There was a drug store and other store buildings at the northwest corner of this intersection. There were several box cars standing on the switch track just east of the intersection. The witnesses differed as to the distance of these cars from the intersection. Some of them fixed the distance at 12 feet, others at 20, 50, and 60 feet. While the decedent was crossing the tracks from north to south on Pennsylvania' 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:

"This lady was going south at the time, and she started to the west diagonally across the street into the path of the train, and as the train became visible between the east line of the crossing and the box car on the switch the engineer blew a whistle and the whistle seemed to startle the lady. The whistle was blown and the lady turned to the right, that would be to the west, and looked east at this box car and then swung to her left again in the path of the train. She looked to the east as she turned around and then swung back to her left in the path of the train, and she was struck by the pilot of the locomotive. She was carried about 30 feet on the pilot and as the train slowed down she slid off the front of the train under the pilot and was run over. She was struck by the north side of the pilot. She was going south and turned to her right when the whistle blew; she turned practically all the way around. The locomotive was right at the crossing when the whistle blew that attracted her attention. When I saw the lady, she was directly in front of the box car, going south. When I first saw her, she was on the west side of the box car north of the main track. She was walking in an ordinary walk down the street."

The various versions of the accident, as detailed by defendant's witnesses, are as follows:

J. M. Neaf:

"I saw the lady just a second or so before she ran in front of the train. The first I saw of her she was about 2 or 3 steps from the north rail of the switch track. The distance between the switch track and the main track was 13 feet from center to center. This would be 13 feet from the north rail of the switch track to the north rail of the main track. When the lady got to the north rail of the switch track, she started to run, and she just got one foot inside the north rail of the main track when the engine struck her. The engine was maybe 35 or 40 feet, something like that, maybe a little more, and maybe a little less, away from her when she started to run. She started to run just as she got to the north rail of the switch track. As she stepped on the rail of the main track, she threw up her left arm. She was running from the north, going south."

Mike Flynn:

"When I first saw the lady, it looked like she was going from the drug store, crossing to the east side of the street, and then she walked south down the street right slow. She was walking right slow. She was walking down the street, and as soon as she got to the side track rail she started running and, of course, the engineer could not avoid hitting her. I could not tell you whether she looked east or not. She was just walking down the street, shaking her hand, like this, when I was looking at her. She walked slow until she got to the north rail of the switch track. When she got to the rail, she started to run south and the train was right there then. She just continued to run south to go across the track. She wanted to go across the track."

Jess Rowe:

"I was standing on the platform in front of the drug store. The lady got off a Kirkwood-Ferguson car. After the car pulled out, she crossed the track. It looked like she was going into the drug store, but she did not go in, and then she stood out in Pennsylvania avenue a few minutes, and then walked on down the track in the middle of the road and crossed the track. Then she came back to the north side, then she walked along slow in the tracks again. She was just about in front of the box car when the train approached the crossing. Just as the train went past the box car, she tore out southwest just as hard as she could and ran right into it. She collided with the righthand side of the pilot. It carried her just about 80 feet and she rolled off as the momentum of the locomotive checked up, and her feet went under the pilot."

John Taylor:

"When I first saw the lady, she appeared to me to be between the switch track and the main track. She was walking south. The train probably was 25 or 30 feet east of the crossing. She kept on walking until she got right to the engine. She seemed to hesitate and stepped right in front of the train; that is the way it appeared to me."

George C. Coyle:

"The first I saw of the lady she was east of Pennsylvania avenue, and there was a box car or two, I don't know exactly how many, standing on the track. The first I saw of her, she was down near these box cars. She was walking along the track. She was coming kind of west. I did not see the train coming, but I heard a whistle blow. I believe it blew twice. When it blew the second time, this lady was getting up right there by the box car. She was coming toward Pennsylvania avenue north of the track. She was in a kind of half run. The north side of the pilot of the engine struck her. Right about Pennsylvania avenue she kind of stepped on the north side of the track and the train hit her."

Mrs. Hazel Calvert:

"I did not see the lady when she got hit. I saw her about 15 or 20 minutes before the accident, walking back and forth on Pennsylvania avenue, right in front of the bake shop and she stopped a couple of times and looked in the window. She was talking to herself."

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:

"I was engineer on train No. 23 on April 18, 1922, at the time we struck a lady on Pennsylvania avenue crossing in University City, Mo. I sounded the regular crossing whistle for this crossing at the whistle post, and when I was about 300 feet east of the crossing, and the last blast was sounded as I was about at the box car. We were running about 10 miles an hour at the time. The bell on the engine was ringing by automatic air, was ringing all the time within a quarter of a mile of the crossing. Approaching this crossing, I was seated in my engineer's box. I first saw this lady when she was...

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