Adams v. Atchison, T. & S. F. Ry. Co.

• Citation: 280 S.W.2d 84
• Decision Date: 09 May 1955
• Docket Number: No. 1,No. 44290,44290,1
• Parties: Allen V. ADAMS, Respondent, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

Page 84

280 S.W.2d 84

Allen V. ADAMS, Respondent, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Appellant.

No. 44290.

Supreme Court of Missouri, Division No. 1.

May 9, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 13, 1955.

John H. Lathrop, Sam D. Parker, James F. Walsh, Jack W. R. Headley, Kansas City, for appellant.

Popham, Thompson, Popham, Mandell, Trusty & Green, and S. L. Trusty, Kansas City, for respondent.

DALTON, Presiding Judge.

Action for damages under the F.E.L.A. 45 U.S.C.A., Sec. 51 et seq., for personal injuries sustained by plaintiff, a locomotive engineer employed by defendant in freight service, when the engine and train operated by plaintiff ran a red home signal and collided with the side of a Wabash freight train at a crossover near Hardin, Missouri, about 6:40 a. m., on July 18, 1950. The jury returned a verdict for plaintiff for $36,000, but the trial court ordered a remittitur of $8,000. When the remittitur was made, judgment was entered for plaintiff for $28,000. Defendant has appealed and contends (1) that plaintiff failed to make a submissible case for the jury; (2) that plaintiff's instructions 4 and 5 are erroneous; and (3) that the judgment is excessive.

The negligence of defendant and the negligence for which defendant was responsible, as pleaded and submitted by plaintiff, was the alleged negligence of defendant's train dispatcher at Marceline, Missouri, in ordering the crossover by the Wabash train at the particular time and place and under the circumstances then and there existing; and (2) the alleged negligence of the engineer of the Wabash train in failing to use the gyrating headlight on the Wabash engine in addition to the regular standard headlight and in failing to blow warning whistles while making the crossing over the track upon which plaintiff's train was approaching.

A rather detailed statement of the evidence favorable to plaintiff is required, since defendant-appellant contends (1) that it was guilty of no negligence as it was under no duty to anticipate that plaintiff would not timely see and obey the red home signal or that he would mistake the headlight on the Wabash train for a yellow home signal and act thereon until too late to obey the red home signal when seen; and (2) that plaintiff's own negligence was, as a matter of law, the sole proximate cause of his injury. We shall disregard defendant's evidence unless it aids the plaintiff's case.

Defendant maintained two main line railroad tracks extending east and west through the village of Hardin in Ray County. The north track being referred to as the westbound main line and the south track being referred to as the eastbound main line. Defendant also maintained a crossover track from its westbound main line to its eastbound main line and thence connecting with the Wabash Railroad Company's line to Kansas City, referred to as Wabash Track No. 3, or as track 3. It is conceded that the eastbound and westbound tracks, the crossover track, the interlocking plant, and the signal system are owned, operated, and maintained by defendant; and that the movements of all trains over the tracks and crossover are supervised and directed by defendant's train dispatchers. Signals have three color indications: Red or stop; yellow, which means proceed with caution and be prepared to stop at the next signal and green, which indicates a clear track ahead. The signals are operated by track circuits. There is, however, no claim that the signal system or the interlocking plant was inefficient or defective or that the brakes or braking system of defendant's train were inefficient or defective. Defendant's eastbound distant signal regulating traffic on its eastbound main line was located about 8,520 feet west of Hardin or 1.56 miles west of defendant's eastbound home signal. Its eastbound home signal was located 1,108 feet west of the Hardin station. Defendant also maintained a 9,515-foot side track which started 287 feet east of its Hardin station.

Plaintiff left Argentine, Kansas, for Marceline, Missouri, on the morning of July 18, 1950, between 3 and 4 a. m. The train, hereinafter referred to as plaintiff's train, consisted of three Diesel units and 95 or 96 freight cars. Plaintiff had been an engineer for defendant for some 30 years and was entirely familiar with defendant's track and signals and had made this run a great number of times. It was foggy when he left Argentine and as the train moved east the fog got heavier. It was nothing unusual to encounter fog in the river bottoms, but this was an unusually heavy fog. It was so dense and heavy that plaintiff could not see and recognize the signals over 150 feet. At Eaton, some 40 miles west of Hardin, plaintiff received a message to clear No. 18 Super Chief, ten minutes late, which meant that he was to clear, or take a siding, for Super Chief (defendant's fast passenger train) at some point further east so as not to delay it.

Plaintiff was familiar with defendant's rule 818 providing that during heavy fog or other conditions when vision and signal aspects are not readily discernible, 'it shall be the duty of the engineer, or engine foreman to regulate the speed of their trains sufficiently to insure safety and under these conditions whistles must be frequently sounded and extra precautions for protection must be taken.' Plaintiff so handled his train all the way from Argentine at a speed that he could see what the signals were.

As plaintiff approached Hardin the fog got heavier and very dense. He approached and passed defendant's eastbound distant signal more than one and one-half miles west of Hardin at 35 to 40 miles per hour and saw that the signal was yellow. Yellow is a caution signal and meant for him to proceed not in excess of one-half the regular speed and at not to exceed 30 miles per hour. It also indicated to him that the home signal would be red or yellow and that he should be prepared to stop at the next signal. Under the circumstances, if he should find the home signal red he would have to stop, but if yellow it would indicate that his train was to be put on the siding, beginning 287 feet beyond the Hardin station, to let the Super Chief pass. He knew Super Chief was close behind him, but it was nothing unusual to follow trains or to have trains following. Plaintiff was familiar with defendant's rule 273 providing that when he saw a yellow home signal he should be prepared to proceed to enter the turn-out or stop for the train or obstruction. If the home signal was yellow, then under rule 273 plaintiff said that he should have been operating his train at such speed that he could stop on the appearance of an obstruction or stop short of a train. On seeing the yellow distant signal, plaintiff made an application of the air brakes and slowed his train down to 15 to 20 miles per hour and 'advanced expecting to find the home signal either red or yellow.' He kept the brakes applied on the rear of the train and released on the head-end for a distance of about a mile and a half, as he approached and looked for the eastbound home signal. He had previously been stopped by the eastbound home signal at Hardin for various purposes, including while a Wabash train was crossing over to track 3, and there was nothing unusual about such a movement.

As plaintiff's train moved east on the eastbound main line and approached the eastbound home signal, which, as stated was 1,108 feet west of the Hardin station, the Wabash freight train containing 110 cars approached the station from the east on defendant's westbound main line. It had stopped for a red westbound home signal 305 feet east of defendant's station and, when directed by signals, it had proceeded west to defendant's station where an order for the crossover was delivered to the Wabash train crew. The train then moved 193 feet further west to the east end of the crossover in question, thence 281 feet along the crossover track between the east-west main lines to defendant's eastbound main line, thence 91 feet west along the eastbound main line to the switch for Wabash track No. 3; thence 192 feet further west and south on track No. 3, as it curves to the left, to the fouling point between westbound cars on track 3 and eastbound trains on defendant's eastbound main line. The Wabash's three Diesel units and some five of its freight cars had passed this fouling point when the collision in question took place. The fouling point mentioned was located 351 feet east of defendant's eastbound home signal.

As has been noted the collision occurred in the daytime at 6:40 a. m., on July 18, some one and one-half hours after sunup, in a dense and heavy fog. Plaintiff-respondent's position is that the nighttime signals should have been in use. In this connection, Wabash rule 16 provided that on engines equipped with gyrating headlights, the white beam will be displayed at night in addition to the standard headlight and that gyrating lights must not be dimmed when being used as such. There was evidence that the gyrating headlight was more powerful than the regular headlight. Wabash rule 9 provided that day signals must be displayed from sunrise to sunset, but when day signals cannot be plainly seen, night signals must be used in addition. Wabash rule 31(a) provided that when view is restricted by weather or other unusual conditions, enginemen should frequently sound the whistle to warn trackmen and others. The Wabash train crews were required to obey both the rules of defendant and the rules of the Wabash.

Defendant's rule 9 provided that day signals must be displayed from sunrise to sunset, but that when day signals cannot be seen, night signals must be used in addition and defendant's rule 17 provided that the headlight will be displayed to the front of every train by night; and that on engines equipped with gyrating lights the white beam will be displayed in addition to...