Brown v. Alton R. Co.

• Decision Date: 03 July 1939
• Docket Number: No. 19250-19268.,19250-19268.
• Citation: 132 S.W.2d 713
• Parties: BROWN v. ALTON R. CO. et al.
• Court: Missouri Court of Appeals

132 S.W.2d 713

BROWN v. ALTON R. CO. et al.

No. 19250-19268.

Kansas City Court of Appeals. Missouri.

July 3, 1939.

Rehearing Denied October 30, 1939.

Appeal from Circuit Court, Howard County; A. R. Hammett, Judge.

Action by Roberta Brown against the Alton Railroad Company, and another, to recover damages for the wrongful killing of plaintiff's husband. Judgment for plaintiff, and defendants appeal.

Affirmed.

Charles M. Miller, of Kansas City, for appellants.

Johnson & Bacon, of Marshall, for respondent.

BLAND, Judge.

This is an action for the wrongful killing of plaintiff's husband. Plaintiff recovered a verdict and judgment in the sum of $5500 and defendants have appealed.

The cause of action grew out of a collision occurring about 4:30 p.m. of December 3, 1934, between a train of the defendant railroad company, being operated by the defendant, Slatter, and a trailer-truck, in which deceased was riding. The collision occurred at a point where the railroad tracks of the defendant railroad intersect Jefferson Avenue in Marshall.

The facts show that Jefferson Avenue at and near the railroad crossing is a much traveled public street; that while the crossing is located near the city limits, there are a number of houses in the vicinity. Jefferson Avenue runs north and south. The railroad enters the city limits from the east, crossing Slater Street and then Odell Avenue before arriving at Jefferson Avenue. It would appear that Slater Street and Odell Avenue run parallel with Jefferson Avenue. The railroad runs somewhat from a northeasterly to a southwesterly direction at the crossing. There are three railroad tracks there. The train that caused the collision was running on the south track. The truck in which plaintiff's husband was riding was proceeding north on Jefferson Avenue.

The only eye-witness as to what happened immediately prior to the time of the collision was plaintiff's witness, Berry, who was the driver of the truck.

He testified that the truck consisted of a tractor with a trailer attached thereto; that the tractor weighed 3200 pounds and the trailer 6500 pounds; that the trailer was 10 feet 4 inches in height; that from the back end of the trailer to the extreme front end of the tractor it was 30 feet 7 inches; that from the back of the seat of the tractor to the front axle it was 5 feet 10 inches; that from the seat of the driver to the extreme front end of the tractor it was 7 feet 10 inches; that the seat of the tractor was between 3 and 4 feet from the ground.

He further testified that he and his father operated the trailer-truck for the transportation of live stock and that on this occasion he had been employed by one Clough to haul some steers for him from Clough's farm near Glasgow to Marshall. After being so employed, the witness, a man about 20 years of age, left Marshall in the morning, with Mr. Clough and the deceased, Clough's son-in-law, to go to Clough's farm and get the steers and transport them to Marshall; that he was unable to drive the truck all the way to the farm on account of the condition of the roads and Clough and deceased went to the farm and drove the steers until they reached the truck and then loaded them into it, at or near Glasgow; that the three men left Glasgow in the afternoon, returning with the steers to Marshall; that the steers belonged to Clough and it was the understanding had with Clough and deceased that they should go along, riding in the truck with the witness.

Berry further testified: "When I drove a truck I tried to take care of the truck and watch the road closely. If anyone is in the cab they don't have anything to do with the driving. * * * The owner usually rode with the cattle"; that Clough and deceased intended to unload the cattle when they arrived at the public sales lot north of Jefferson Avenue. "Q. And that is the reason they (Clough and deceased) were riding with you, wasn't it? Mr. Pierce: We object to that as calling for a conclusion. A. No, sir; when the cattle were in the truck I took care of them while they were in the truck"; that the cattle did not belong to deceased, but he was helping Clough "get the cattle". "Q. Well, you agreed to go over there and get the cattle for a stipulated sum? A. Yes, sir. They wanted to know if they could go along and it is always agreeable."

As the truck approached the railroad crossing Berry was driving it with deceased sitting immediately to his right and Clough was seated immediately to the right of the latter, there being three on the seat with deceased in the middle. As the front wheels of the truck came upon the south rail of the main line track, the southwest corner of a westbound passenger motortrain, consisting of two cars, struck the right front wheel and bumper of the truck, turning the truck to the west and injuring deceased and Clough, which injuries resulted in their deaths, Berry surviving, although injured.

There was evidence tending to show that Jefferson Avenue was covered with ice and snow and was very slick but that there was no snow or ice on the railroad tracks.

Berry further testified that he was familiar with this railroad crossing; that as he approached the crossing a line of shrubbery to the east obstructed his view, the line of shrubbery being off of the south line of the railroad right-of-way and running 30 to 40 feet along it; that there were also telegraph poles and a crossing sign on the right-of-way, which also obstructed the view, to some extent; that, as he approached the railroad crossing, he could see down the railroad track to the northeast as he traversed about 140 feet before his view became obstructed; that thereafter and when he "was within about 117 feet of the track there was an opening between some shrubbery and a coal shed back of this Marshall lot and I could see the track a few feet there — I could see (a point) down the track 344 feet"; that he looked east at this 117 foot point and could not see any train; that until he arrived at a point about 50 or 60 feet of the track the shrubbery obstructed his view; that when he reached a point 50 feet from the track he could look eastwardly around the shrubbery and see down the south rail of the track 178 feet and on the north rail 218 feet; that seeing no train in sight and hearing no whistle, he looked to the west and then back toward the east; that when he last looked toward the east he was within 12 feet of the track, the front of his truck being 8 feet from the track. He then for the first time saw the train. He further testified that had he seen the train in time he would have stopped within 20 or 25 feet of the track; that he did not see the train until it was right on him; that he applied his brakes, cut his front wheels to the left and the train hit the right front wheel and bumper of the tractor, throwing the tractor around to the west but not upsetting the trailer.

Berry testified that he approached the crossing at the uniform rate of speed of 12 miles per hour; that at no time did he change that rate of speed; that when he was within 50 feet of the track he heard no whistle or bell and, seeing no train, he continued onward at the same rate of speed; that there was a crossing bell 30 feet west of the intersection and that this bell was not ringing. Other witnesses on the part of plaintiff testified that no sound or signal was given of the approaching train. However, a great number of other witnesses, some of whom were plaintiff's, testified that such signals were given.

Berry testified that he did not notice what deceased and Clough were doing as he approached the railroad track; that they were on the seat beside him, awake, and that they had been talking about 10 or 15 minutes before; that he could see their faces; that they knew they were approaching the railroad crossing.

Plaintiff placed upon the stand, the defendant, Slatter, who testified that he was the operator of the train, which consisted of two cars; the front car being equipped with a gasoline motor in the front end which generated electricity for the operation of the train. Photographs of this car were introduced in evidence. Its front end appears to be more or less flat except that it has a head-light over the top and a pilot at the bottom. It has two windows in the front end with a radiator between them extending from the top to the bottom of the car. The evidence shows that this radiator extends about 2 feet in front of the main part of the car and the windows. Slatter was operating the train and another operator, Driscoll, was instructing him as to its operation. They were behind the window on the north side of the train. Slatter was situated about 3 feet to the rear of the window, Driscoll was back of him. With reference to this window, Slatter testified: "It slopes from the center to the back slightly — it slopes from where it connects with the front of the car to the back"; that he was seated on a seat which was located above and about 6 inches to the right of the north rail of the track; that he had been operating ordinary freight trains for the railroad company for a great many years and was familiar with the conditions at the crossing. He testified that the train was traveling about 15 miles per hour as it approached the crossing; that he first saw the truck when its front wheels were just over the south rail of the track; that this was when his train was upon the crossing and at the time when the train and the truck came together; that he "reached to the brake-valve" and stopped the train in about 140 feet; that when an air valve is broken off it sets the brakes "right now"; that he guessed there was no question but that he could have stopped the train in that distance from Slater Street clear on up to the crossing. He testified that the train he was operating had a "throttle like a steam engine, only it is for gas; and a brake the same as a steam engine. Q. You have a big gasoline engine? A. Yes, sir,...