Beal v. Chicago, B. & Q. R. Co.
| Decision Date | 28 May 1926 |
| Docket Number | 25394 |
| Citation | 285 S.W. 482 |
| Parties | BEAL v. CHICAGO, B. & Q. R. CO. et al |
| Court | Missouri Supreme Court |
H. J Nelson, of St. Joseph, and Douglas W. Robert, of St. Louis for appellant Chicago, B. & Q. R. Co.
J. L Howell and R. E. Blodgett, both of St. Louis, for appellant St. Louis Merchants' Bridge Terminal Ry. Co.
Mark D Eagleton, of St. Louis, for respondent.
This is a suit for personal injuries brought by Timothy Beal in the circuit court of the city of St. Louis against the Chicago, Burlington & Quincy Railroad Company, the St. Louis Merchants' Bridge Terminal Railway Company, and the Gus V. Brecht Butcher Supply Company. Upon a trial the Butcher Supply Company was held not liable, and there was a verdict for $ 30,000, in favor of the plaintiff and against the Burlington Company and the Terminal Company. The motion for a new trial was overruled upon the condition of an entry of a remittitur for $ 15,000, and, upon this being done, a judgment for $ 15,000 was entered, and the two defendants last named appealed, and the plaintiff prosecuted a separate appeal as to the Brecht Company. The Burlington and Terminal Companies have appealed and filed a joint abstract and statement and briefs.
The Facts -- The plaintiff is a married man, and was 51 years of age at the time of the trial, which was 18 months after his injury. He was injured May 22, 1922, about 3 o'clock in the afternoon, while in the course of his duties as a switchman for the defendant Burlington Company when a switch engine of that company upon which he was riding collided with a truck operated by the Brecht Butcher Supply Company. The accident occurred on Main and Tyler streets in the city of St. Louis. Tyler street is an east and west street, and Main street a north and south street. It is about 36 feet wide from curb to curb. The truck was moving eastward along the south side of Tyler street. Along the west side of Main street ran two tracks of the Burlington Company. Extending north and south along the east side of Main street were two or more tracks of the Terminal Company. Near the center of Main street, between the tracks of the Terminal Company and the tracks of the Burlington Company, and a short distance south of the south line of Tyler street, there was a tower maintained by the Terminal Company, from which an employee of that company operated the gates on the east and on the west sides of the intersection of the two streets, the gates being lowered to shut off traffic when trains were passing and raised when the crossing was clear. The movement of one of the gates automatically moved the other. At the northwest corner of the crossing on the north side of Tyler street there was a building. The building was 12 feet north of the north curb of Tyler street. The west rail of the west track of the Burlington Company was 4 or 5 feet east of this building. The engine was backing, and had no cars attached. The engineer was on the east side of the cab and the fireman on the west side. The plaintiff and two other switchmen were riding on the step or footboard of the tender as it moved southward. The truck was a large one with a trailer attached, both of which were heavily loaded. The crossing gates were up when the truck went on the crossing.
The plaintiff testified that the engine, as it approached Tyler street, was moving at the rate of 35 miles an hour; that when he saw a collision was about to occur he jumped as soon as he could; that when the engine and the truck came to a stop he was underneath the truck and crawled out; that going at the rate of 35 miles an hour the engine could have been stopped in 75 to 80 feet; going at the rate of 12 miles an hour, the speed testified to by the fireman, the engine could have been stopped within 25 to 30 feet; that the fireman was the one to signal the engineer to stop; and that the fireman was there for the purpose of seeing any traffic that might cross the path of the engine.
Frank Barnes, the fireman who was on the engine at the time of the collision, testified that the engine was moving at the rate of only 12 miles an hour; that he did not discover the truck until it was 10 feet from the track on which the engine was operated; that at that time the front end of the engine was only 15 feet north of the north curb of Tyler street; that he could not judge the speed of the truck; that he did not know when the engineer shut off the power prior to the collision; that the driver of the truck attempted to avoid the collision by turning towards the south; that the engine moved 51 feet from the time he signaled to the engineer to stop until it actually stopped; that as a result of the collision he knew that one of the switchmen was injured and that the other was killed and that three employees of the truck were killed.
Albert Schwartz, the watchman employed by the defendant Terminal Company in the tower, testified that it was his duty to lower the gates when a railroad engine or train was passing and to raise them when the road was clear; that he continued to perform this duty during the entire 21/2 years he was employed at the crossing; that the tower was about 5 feet south of the south curb of Tyler street; and that on a bright clear day he could see north from Tyler street, in the direction from which the engine came, a distance of 4 blocks; that the gates worked automatically and were up at the time the collision occurred; that a Terminal engine had gone north immediately prior to the collision and during that time the gates were down; that he followed the Terminal engine until it reached Chambers street, a block north, and thereupon raised the gates to permit the Brecht truck to come through; that thereafter he noticed the Burlington engine in the middle of the block between Chambers and Tyler, coming south, and immediately tried to lower the gates, but at that time the truck was so near that he could not do so, as the truck was already under the gates; that he did not hear any bell or whistle from either the truck or the engine, although he had the window open; that his ability to hear was all right; that the day was clear and dry, and the rails were dry and dusty; that the engine continued south and struck the truck, and thereafter the engine continued into the yards, as he estimated the distance, at least 75 to 100 feet; that at the time he first saw the engine in the middle of the block the truck was only 5 or 6 feet from the Burlington tracks; that he discovered the engine and the truck at the same time.
John Kulongoski, the chauffeur of the truck, testified that he had been going over this crossing two or three times a week for a period of 21/2 or 3 years before the accident and was familiar with the same; that on all other occasions the gates were down whenever an engine was passing; that at the time he discovered the engine the truck had already passed the west Burlington track; that he heard no engine bell; that prior to the accident he had been driving at a rate of 6 or 7 miles per hour, but had slowed down when approaching the tracks to about 4 or 5 miles per hour; that after the engine hit the truck it moved 100 feet south of the south curb of Tyler street before stopping.
O. W. George and Frank W. Jansky, expert engineers, were employed by the Burlington Company to make a plat of the scene of the accident, and testified that they made measurements to determine how far the engine could have been seen north of Tyler street by a person standing at various distances west of the track on said street, and also at what distance the engine could have been seen coming south on Main street, looking north from Tyler street. George testified that from a point 258 feet north of the place where the engine was traveling it could have been seen by a person standing 12 feet from the east track; that when the engine was 187 feet north of said point it could have been seen 15 feet from the east rail; that when 130 feet from said point the engine could have been seen 20 feet from said rail; that when 110 feet from said point the engine could have been seen 25 feet from said rail. This witness further testified that he did not know the exact distance from Tyler street to Chambers street, but that said distance was greater than 258 feet. Aside from the foregoing testimony there was evidence as to the extent of plaintiff's injuries, and his disability, loss of earnings, pain and suffering resulting therefrom.
I. It is evident that the jury found that the excessive speed of the engine was the proximate cause of the collision. Several witnesses for the plaintiff testified that the engine, at the time it struck the truck, was moving at a speed of from 30 to 40 miles per hour. It is true that witnesses for the defendants testified that the speed was that of 12 miles per hour, but it was the province of the jury to determine whether the testimony of the witnesses for the plaintiff or that of the defendants was to be believed. With their determination, therefore, that the greater credibility should be given, in this regard, to the testimony of the witnesses for the plaintiff, we will not interfere.
The operation of a railroad engine at a crossing at the speed found by the jury will authorize its classification as unreasonable and dangerous under the circumstances and conditions there existing. The equal rights of the public in the use of a highway over a railroad crossing is too well established to require discussion. What, therefore constitutes excessive or dangerous speed by a railroad engine or train, in passing over a crossing, is always dependent upon the facts or surrounding circumstances of the particular case, and by this rule will the character of the engine's speed be...
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