Baltimore & OR Co. v. Felgenhauer

• Decision Date: 09 June 1948
• Docket Number: No. 13635.,13635.
• Citation: 168 F.2d 12
• Parties: BALTIMORE & O. R. CO. v. FELGENHAUER.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F.2d 12 (1948)

BALTIMORE & O. R. CO. v. FELGENHAUER.

No. 13635.

Circuit Court of Appeals. Eighth Circuit.

May 19, 1948.

Rehearing Denied June 9, 1948.

Rudolph J. Kramer, of East St. Louis, Ill. (Bruce A. Campbell and John C. Roberts, both of East St. Louis, Ill., and Fred W. Schwarz, of Webster Groves, Mo., on the brief), for appellant.

B. Sherman Landau, of St. Louis Mo. (Louis E. Miller, of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, THOMAS, and COLLET, Circuit Judges.

THOMAS, Circuit Judge.

On November 24, 1944, Ora Fred Felgenhauer driving a truck across a railway grade crossing at Broadway street in the city of Salem, Illinois, was struck and instantly killed by a train operated by appellant.

John Felgenhauer, father of the deceased and the qualified administrator of his estate, hereinafter called plaintiff, brought this action under an Illinois statute against appellant, hereinafter called defendant, in the district court for the eastern district of Missouri, to recover damages suffered by his decedent's next of kin because of his death.

As grounds for recovery plaintiff alleged that the crossing "was unusually hazardous and dangerous by reason of the peculiar circumstances and conditions existing thereat, but was not equipped with adequate protective devices for the protection of persons and vehicles passing over it; and that

"The aforesaid collision, and the resultant death of the decedent directly and proximately resulted from the following:

"I. Defendant wilfully or recklessly or negligently operated its train toward said Broadway crossing at a high, dangerous and excessive rate of speed.

"II. Defendant wilfully or recklessly or negligently invited the decedent, by signal, to pass over said crossing, immediately in front of the defendant's said passenger train.

"III. Defendant wilfully or recklessly or negligently failed to equip said crossing with crossing gates."

The Illinois statute, Ill.Rev.Stat.1945, c. 70, § 2, under which the action was brought provides that "in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of $10,000 * * *."

The complaint alleged and the evidence showed that the decedent was 21 years of age at the time of his death, unmarried, and that he left surviving him next of kin including both his parents, four sisters and three brothers.

The defendant denied all allegations of negligence and of willful or reckless conduct charged in the complaint, and, as an affirmative defense, alleged that the injuries resulting in the defendant's death were due entirely to his contributory negligence.

The case was tried to a jury, and a verdict was returned for the plaintiff upon which judgment was entered for $10,000.

Jurisdiction, admitted by defendant, is based upon diversity of citizenship. Both parties recognize, also, that since the cause of action alleged in the complaint is based upon an Illinois statute and the fatal accident happened in Illinois the questions presented are to be determined by the applicable law of that state. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487.

Upon exceptions duly saved in the trial court the defendant seeks reversal of the judgment on the grounds that the court erred (1) in its failure to sustain defendant's motion for a directed verdict; (2) in the admission and exclusion of evidence; and (3) in certain instructions given and in the refusal of certain requested instructions.

Determination of these contentions requires a brief statement of the facts developed upon the trial. In making such statement we do not, under the well-settled rule, weigh the evidence but consider it from the standpoint most favorable to the plaintiff. Ocean Accident & Guarantee Corporation v. Moore, 8 Cir., 85 F.2d 369, 376; Limbeck v. Interstate Power Co., 8 Cir., 69 F.2d 249; Baltimore & O. R. R. Co. v. Groeger, 266 U.S. 521, 524, 45 S.Ct. 169, 69 L.Ed. 419; Western & A. R. R. v. Hughes, 278 U.S. 496, 498, 49 S.Ct. 231, 73 L.Ed. 473: Applying the foregoing rule, the facts material on this appeal may be stated as follows:

On November 24, 1944, and for a long time prior thereto, Illinois State Highway No. 37 passed through Salem in a north-south direction on Broadway street. The tracks of the defendant running in an eastwest direction through the built-up part of the city intersect the highway at right angles. About 150 feet west of the crossing the railway curves to the south. Two tracks, the main line and a passing track, cross Broadway street, and a third track, designated as the house track, branches off on the south side of the passing track just west of the street crossing. Often freight cars are left standing on the two south tracks west of the crossing. The freight station is 285 feet west of the center of the street on the south side of the house track. Another building on the south side of the track is 84.4 feet west of the center of the crossing. The passenger station is located on the north side of the tracks a short distance west of the street. Vehicular traffic is restricted in its view of approaching trains by reason of buildings, structures and railroad rolling equipment sometimes stored or standing near the crossing. Often, too, noises in the neighborhood render it difficult to hear the usual signals of approaching trains or to distinguish such signals from the signals of switching operations going on in the yards.

Sometimes during switching operations on the passing track a brakeman was stationed at the crossing to protect the movements of trains by stopping and directing traffic on the highway.

Not all passenger trains stopped at the station in Salem. Some such through trains passed over the Broadway crossing at a speed of 70 to 75 miles an hour and freight trains at a speed of approximately 35 to 40 miles an hour.

But one protective device at the crossing warned travelers on the highway of approaching trains — a flasher light operated by batteries which began flashing when a train approaching from the west was about 2,955 feet distant. The light continued to flash until the train had passed over the crossing. For some distance this light was also connected with the passing track west of the crossing, one witness for the defendant testified for a distance of approximately 60 to 65 feet. When cars were left standing on the passing track within the signal circuits the light flashed continuously even though no train was approaching, so that persons driving vehicles could not determine by observing the flasher light whether or not a train was approaching. In short, the flasher light could not always be depended upon to give warning of approaching trains. Plaintiff's decedent had frequently driven trucks over the crossing and was familiar with this situation.

On September 21, 1944, the Illinois Commerce Commission made a survey of the traffic over the Broadway crossing and found that between 8:00 a. m. and 6:00 p. m. of that day 2810 vehicles, nine passenger trains, eight freight trains and six switch engines passed over the crossing.

The findings of the Commerce Commission also disclosed that subsequent to January 1, 1928, and prior to October 24, 1944, 12 reportable accidents had occurred at the Broadway crossing. The defendant admitted that a copy of these findings together with the order entered by the Commission on October 24, 1944, had been served upon it. In answer to an interrogatory propounded by plaintiff defendant stated that in addition to the accident involved in this case six persons were fatally injured at the same place when the automobile in which they were riding was struck by a train on December 26, 1935; one man was injured there on February 5, 1941; two men were fatally injured on January 10, 1943; two men on January 30, 1943; and one man on July 5, 1944.

The collision resulting in the death of plaintiff's decedent occurred at 11:03 a. m. on November 24, 1944. Immediately before the collision decedent approached the crossing from the south driving his truck at a very low speed. The flasher light was in operation. Some freight cars stood on the passing and house tracks about 75 feet west of the crossing which with the adjoining buildings obstructed the view of a passenger train then approaching from the west at a speed of approximately 70 miles per hour. A few minutes earlier a freight engine with some cars had crossed on the passing track from west to east, and the conductor had stationed a young brakeman about 17 years of age with only three weeks' experience in railroading on the crossing to signal vehicles. He took a position on the west side of the highway facing east and signaled to waiting vehicles on both the north and the south sides of the tracks to come on across. In obedience to his signal Mrs. F. O. Lewis, driving a coupe from the north, crossed over to the south just ahead of the train. The decedent accelerated the speed of his truck and moved on to the tracks from the south where he was struck by the train and instantly killed.

The court fully instructed the jury on the issues of common law negligence and contributory negligence. It is not claimed that the legal principles stated in these instructions are incorrect; but the defendant contends that a verdict should have been directed for it on the ground that no evidence supported the charge of negligence and that the evidence showed conclusively and as a matter of law that the decedent was guilty of contributory negligence.

1. Motion for directed verdict. — The question of the sufficiency of the evidence to require the submission of the issues to the jury was raised in the lower court by a motion for a directed verdict for the defendant, by a motion for judgment non obstante veredicto or for a new trial,...