Brees v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 18 February 1928
• Docket Number: 26431
• Citation: 4 S.W.2d 426
• Parties: BREES v. CHICAGO, R. I. & P. RY. CO
• Court: Missouri Supreme Court

4 S.W.2d 426

BREES v. CHICAGO, R. I. & P. RY. CO

No. 26431

Supreme Court of Missouri, Second Division

February 18, 1928

Motion for Rehearing Overruled March 24, 1928.

Luther Burns, of Topeka, Kan., and Henry S. Conrad, L. E. Durham and Hale Houts, all of Kansas City, for appellant.

Platt Hubbell and George H. Hubbell, both of Trenton, for respondent.

OPINION

HIGBEE, C.

This is an action under the Federal Employers' Liability Act (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665) for damages for personal injuries resulting from a head-on collision between two gasoline motorcars, on January 26, 1924, on defendant's railroad at the station of Harvard in Wayne county, Iowa. Plaintiff had a verdict and judgment for $ 17,000, and defendant appealed.

A locomotive engine that was being hauled from Illinois to Oklahoma was set out of defendant's train at Seymour Iowa, for slight repairs. J. A. Bittorf, defendant's mechanic stationed at Allerton, two stations west of Seymour was directed to take plaintiff and make the necessary repairs on the engine. The two men went to Seymour on a gasoline motorcar furnished by the defendant. Brees, by Bittorf's direction, sat on the front end of the car, facing the west, and kept a lookout to the rear, while Bittorf sat on the rear end of the car, operated it, and kept a lookout to the front. After making the repairs on the engine, they started to return to Allerton in the same positions on the motorcar. The rules of the defendant limited the speed of motorcars to 18 miles per hour and 8 miles per hour when passing over the point of a witch. While passing the station at Harvard, halfway between Seymour and Allerton, Bittorf operated the car at a speed of from 25 to 30 miles per hour. Just after passing the point of the switch at Harvard, Bittorf's car ran into another motorcar which was running eastward at about 5 miles per hour and carrying four section men. Bittorf, if he had been looking to the west, had a clear view of the track for a distance of 2,300 feet. He made statements that he was not looking ahead and did not see the other motorcar. Brees was looking to the east and had no warning of the approaching collision. He was knocked unconscious and knew nothing about the collision until after he was taken to defendant's hospital at Allerton. He sustained serious and permanent injuries; the left clavicle or collar bone and seven ribs on the left side were broken, the left hip was injured, and the spinal cord sustained an injury. Since his discharge from the hospital he has been unable to do any work except choring about the house and driving his Ford car. He has no use of his left arm and the left leg is weak. When the collar bone healed it overlapped an inch, and four of the ribs also overlapped an inch. He has constantly suffered pain and loss of sleep from his injuries. The evidence for the plaintiff is that his injuries are permanent and will probably grow worse. Prior to the collision he was in good health and always working, and had an annual income, from his work and the sale of milk from five cows, of about $ 1,200 for five years preceding the collision.

The petition charges negligence in the operation of the motorcar by Bittorf at an excessive rate of speed; that he failed to keep a lookout for cars and failed to warn plaintiff of the approaching collision. The answer is a general denial, with pleas of assumption of risk and contributory negligence.

In appellant's statement, learned counsel say:

'Appellant concedes that under the facts plaintiff at the time of the accident was employed in interstate commerce, and that his rights in respect to his injuries are governed by the Federal Employers' Liability Act.'

In their printed argument, learned counsel also say:

'The only question of substance which the jury had to determine was the amount of damages to be awarded. We freely concede that negligence on the part of Bittorf was established not only by plaintiff's evidence, but by the testimony of Bittorf himself, who was the only witness of the defendant testifying about the circumstances of the accident. We also concede that there...