Chicago, B. & QR Co. v. Ruan Transp. Corporation

• Decision Date: 07 February 1949
• Docket Number: No. 13717,13718.,13717
• Parties: CHICAGO, B. & Q. R. CO. v. RUAN TRANSP. CORPORATION. CHICAGO, B. & Q. R. CO. v. HAWLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

171 F.2d 781 (1948)

CHICAGO, B. & Q. R. CO. v. RUAN TRANSP. CORPORATION.

CHICAGO, B. & Q. R. CO. v. HAWLEY.

Nos. 13717, 13718.

United States Court of Appeals Eighth Circuit.

December 23, 1948.

Rehearing Denied February 7, 1949.

John Hale and J. C. Pryor, both of Burlington, Iowa, for appellant.

D. J. Fairgrave, of Des Moines, Iowa (Howard A. Steele, of Des Moines, Iowa, on the brief), for appellees.

Before SANBORN, WOODROUGH and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

These appeals are from judgments rendered on jury verdicts in actions brought by appellees, Ruan Transport Corporation and William D. Hawley, against the appellant, Chicago, Burlington & Quincy Railroad Company, to recover damages sustained by appellees as the result of a collision between one of appellant's passenger trains and a gasoline transport truck owned by appellee, Ruan Transport Corporation, and driven at the time of the collision by its employee, William D. Hawley. The transport truck was in two units, a tractor and a trailer tank loaded with 6,300 gallons of gasoline. The tractor had eight drive wheels on tandem axles at the rear, each axle having a double wheel at either end. The combined length of the tractor and tank was 45 feet, and when the tank was fully laden, as it was at the time of the accident, the total weight of the transport and load was about 60,000 pounds. The tractor was destroyed in the collision. The trailer tank was not injured. Hawley received serious and permanent injuries.

These appeals present the single question, whether under the law of Iowa Hawley, the driver of the truck transport, was guilty of contributory negligence barring recovery on behalf of either of the appellees.

The accident occurred about 2:40 p. m. on a clear day at the 28th Street crossing in the town of Bettendorf, Iowa. There are five railroad tracks at the 28th Street crossing, which for convenience may be referred to as tracks 1, 2, 3, 4, and 5. Track 2 is the main line on which the collision occurred. The others are sidetracks or passing tracks. All of the tracks are the property of the Davenport, Rock Island and Northwestern Railroad, and by arrangement with that company track 2 is used by the appellant railroad company and by other companies for the operation of trains. The Davenport, Rock Island and Northwestern Railroad has exclusive charge and control of all car movement and car placement on the sidetracks.

Twenty-eighth, the last street in Bettendorf, runs approximately north and south, and the railroad tracks east and west. The street crosses the tracks about 1 mile east of the Bettendorf station. The roadway is gravel and dirt and rough. The crossing is level. East of the intersection track 2 is straight for approximately 1 mile.

The passenger train which collided with the transport truck was westbound, and the truck at the time of the accident was being driven from the south to the north. It reached track 5 first and crossed that track and tracks 4 and 3 before reaching track 2 on which the collision occurred. It is undisputed that as Hawley approached the railroad tracks from the south the view to the east of the crossing was completely obstructed by freight cars on tracks 3 and 4. On track 5 about 150 feet east of the crossing there was a switch engine and a string of cars of the Davenport Railroad waiting for the Burlington train to pass on track 2.

The car nearest the crossing on track 3 stood approximately 75 or 80 feet east of 28th Street. Just prior to the accident Hawley had loaded the trailer tank at the Standard Oil bulk plant which is located east of 28th Street and on the south side of the railroad tracks. Leaving the Standard Oil plant Hawley drove a short distance to the west parallel to the railroad tracks until he approached 28th Street, where he was to make a sharp turn to the north to cross the tracks. As he approached this turn, he saw another truck coming from the north across the railroad tracks. He stopped until that truck had made the crossing and rounded the turn, since the width of the roadway at the turn was not sufficient to permit the trucks to pass. Thereafter, Hawley made the turn into 28th Street and drove his truck to the north until he reached a point about 8 feet south of the south rail of track 5 where he stopped. He testified that at this point he looked and listened, that he was unable to see to the east because of the cars on tracks 4 and 3, and that he did not hear an approaching train.

While his transport was stopped at the point mentioned Hawley unfolded his leather coat which he had in the cab of the tractor, removed from a pocket of the coat a supply of Copenhagen snuff, and, as he said, "took out a chew," and replaced the coat. His testimony was that while this proceeding was in progress he was looking and listening for trains. After the operation just described he placed his truck in "creeper" gear, the lowest driving gear with which his tractor was equipped, and proceeded without stopping at a rate of 2 miles an hour until the front wheels of his tractor were over the north rail and the forward set of drive wheels on the tractor were approximately on the south rail of track 2. The distance traveled from the point where he stopped on approaching track 5 to the point reached when the tractor was struck by the train was approximately 50 feet. The windows in the tractor cab were open. The noise of the moving transport in "creeper" gear was no greater than when running in high gear at 45 miles an hour.

Hawley said that his seat in the cab of his tractor was about 7½ or 8 feet from the front bumper. The distance between the north rail of track 3 and the south rail of track 2 was about 9 feet, 9 inches. Although Hawley testified that he continually looked to the east and listened for a train approaching from the east from the time he started his tractor across track 5, he neither saw nor heard a train until the front bumper of his tractor was over the north rail of track 2. When his tractor had reached this position, he heard the whistle of the train and saw it for the first time at a point on the track between 200 and 250 feet from him, approaching at a speed which he estimated at 50 miles an hour. He stopped his tractor immediately, reversed gears, and while his unit was backing up it was struck by the train.

Hawley was thoroughly familiar with this crossing, having driven his truck across it many times and having crossed it once on the day of the accident. He knew of the presence of the cars on the sidetracks which obscured his view of trains approaching on track 2. He knew that he could not see a train coming from the east for a distance of more than 75 feet from the crossing until the front bumper of his tractor was within 1 or 2 feet of track 2. He knew that the cars on track 3 which prevented him from seeing the train also made it impossible for the enginemen on the train to see him until the front end of his truck had cleared the north rail of track 3. He knew that a number of regularly scheduled passenger and freight trains passed over the crossing on track 2. He knew that the train which struck him was due at the crossing as he approached it. On direct examination he testified that he was looking east because he knew the train that struck him was due along there. On cross examination he modified this statement by saying that he knew when this particular train was due, that he was always on the lookout for it, and that to his knowledge it had not passed the crossing at the time he approached track 2.

The appellees' evidence was that the 28th Street crossing was used by the tank transports serving three oil company plants south of the railroad tracks and east of 28th Street. It was also crossed regularly by employees of these and other industrial plants in that vicinity in their private cars. An employee of the Ruan Transport Corporation testified that trucks operated by that company probably crossed the tracks on 28th Street 75 times a day. There was some evidence that the whistle was not sounded until the train was within 200 or 250 feet of the crossing. Of those who testified for appellees, Hawley was the only one who had any reason to be listening for the whistle. The witnesses who testified for the appellees concerning the sounding of the whistle or ringing of the bell on the engine merely said that they did not hear a whistle or bell until the engine was within 200 or 250 feet of the crossing. Witnesses for the appellant, not connected with either party to the litigation, heard the whistle when the train was 600 or 700 feet from the crossing. One witness for appellant, the fireman on the switch engine of the Davenport Railroad waiting on track 5 for the arrival of the train which struck the truck, and who had some reason to listen for the sound of the approaching train, testified that the whistle was first sounded when the train was ½ mile east of the crossing and again at the whistling post 500 feet east of the crossing and continuously thereafter.

Crites, who was the driver of the truck which passed over the crossing just before the accident, saw the train about ½ mile distant when he came over the crossing. He did not say whether he had heard the whistle as he came over the crossing. He said that, when he saw Hawley start his truck after stopping south of track 5, he knew that the train was approaching and that Hawley was in danger of being struck. He stopped the truck he was driving and watched Hawley drive on the track in front of the train. He saw smoke or steam coming from the smokestack of the engine and heard the whistle when the engine was 200 to 250 feet from the crossing.

The engineer and fireman and conductor of the train testified that the required crossing signals were given as the train approached 28th Street, that the bell was ringing continuously, and that the view of the engineer and fireman was obstructed by the same cars...