Baker v. Chicago, Burlington and Quincy Railroad Co., 15127
| Citation | 220 F.2d 721 |
| Decision Date | 07 April 1955 |
| Docket Number | No. 15127,15128.,15127 |
| Parties | Robert N. BAKER, Cross-Claimant — Appellant. v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Defendant-Appellee. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Defendant-Appellant. v. Robert N. BAKER, Cross-Claimant — Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
John E. McCracken, Davenport, Iowa, for Robert N. Baker.
J. C. Pryor, Burlington, Iowa (John Hale and Larned Waterman, Davenport, Iowa, on the brief), for Chicago, B. & Q. R. Co.
Before GARDNER, Chief Judge, and COLLET and VAN OOSTERHOUT, Circuit Judges.
Initially this action was brought by Rose E. Petsel as executrix of the estate of R. D. Petsel, her deceased husband, against the Chicago, Burlington and Quincy Railroad Company and Robert N. Baker to recover damages for the death of her husband, R. D. Petsel, by reason of the alleged wrongful acts of the named defendants. Her action as against Robert N. Baker was, however, dismissed and Robert N. Baker filed a cross-complaint against the Chicago, Burlington and Quincy Railroad Company seeking to recover damages because of the alleged negligence of the Railroad Company resulting in a collision between a tractor-trailer vehicle owned and driven by him and one of the Railroad Company's diesel locomotives. Upon the dismissal of the action brought by Rose E. Petsel as to Robert N. Baker and the filing of a cross-complaint against the Chicago, Burlington and Quincy Railroad Company by him he in effect became plaintiff in the action and the Railroad Company became defendant and the only issues here involved grow out of that action. We shall therefore refer to Robert N. Baker as plaintiff and the Chicago, Burlington and Quincy Railroad Company as defendant.
Plaintiff alleged that on the 3rd day of December, 1950 he was the owner of a tractor-trailer and was transporting a load of cattle from Lone Tree, Iowa, to Chicago, Illinois, and that while in the exercise of due care he collided with a diesel engine owned and operated by the defendant at a public highway crossing at Joslin, Illinois; that the defendant was negligent in failing to properly maintain and operate flasher signals at its highway crossing, in failing to give warning either by whistle, siren or bell, in failing to keep proper lookout for the approach of vehicles at such crossing, in maintaining an obstructed view of the crossing, and in operating its train at an excessive rate of speed; that by reason of such negligent acts plaintiff collided with the defendant's diesel locomotive resulting in the death of four of the cattle which he was then transporting, besides injury to his tractor-trailer to his damage in the sum of $8,712.
The defendant answered admitting the happening of the accident, admitting that plaintiff was the owner and the operator of the tractor-trailer, denying that it was guilty of any of the acts of negligence alleged and affirmatively pleaded that the accident was caused or contributed to by the negligence of plaintiff. It also interposed a counterclaim charging that the accident was proximately due to the negligent acts of plaintiff to its damage in the sum of $953.38.
There was evidence viewed in a light most favorable to the plaintiff warranting the jury in finding that the plaintiff as he approached this railway crossing from the west was operating his tractortrailer then loaded with cattle which he was transporting from Lone Tree, Iowa, to Chicago, Illinois, in a careful and skillful manner at a speed of about thirty-five miles per hour; that he was thoroughly familiar with the highway; that the defendant had customarily maintained flasher signal lights at the crossing in question but as he approached the crossing these signals were not operating and that the defendant gave no signal indicating the approach of the train until plaintiff was within fifty feet of the crossing; that he looked both to his right and to his left as he approached the crossing and had observed no approaching train until within fifty feet of the rails at which time the signal was displayed; that no warning by whistle, siren or bell was given as he approached the crossing; that upon receiving warning he at once applied the brakes to his vehicle but was unable to avoid the collision; that it was impossible to stop his vehicle after receiving the signal of the approach of the train in time to avoid the collision; that his brakes were in good working order and that the defendant's train with which plaintiff's tractor-trailer collided came from a northeasterly direction and by reason of obstructions was not visible to one approaching the the railway crossing from the west until he reached a point about fifty feet from the track.
It was stipulated by counsel for the respective parties that:
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