Caffey v. St. Louis-San Francisco Ry. Co.
| Decision Date | 06 July 1956 |
| Docket Number | LOUIS-SAN,No. 7419,7419 |
| Citation | 292 S.W.2d 611 |
| Parties | C. E. CAFFEY, Plaintiff-Respondent, v. ST.FRANCISCO RAILWAY COMPANY, a corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
James L. Homire, St. Louis, David Donnelly, Donnelly & Donnelly, Lebanon, for defendant appellant.
Fields & Low, John A. Honssinger, John F. Low, Lebanon, for plaintiff respondent.
Plaintiff had verdict and judgment because of damage to his pickup truck sustained in a diesel engine-truck collision. After the overruling of proper motions defendant has appealed. Plaintiff pleaded and submitted failure to give the statutory signals by bell or whistle. Defendant pleaded and submitted denial of its negligence and contributory negligence on the part of plaintiff.
The collision occurred in the daytime on a clear and cold December day near the west side of Lebanon where defendant's east-west tracks cross over the old Springfield road, which at that point is a blacktop street extending in a north-south direction and running 'sort of upgrade to the crossing.' Crossing the street are at least two sets of tracts and immediately, 'a few feet,' to the east is the entrance of another switch track leading off in that direction. The width of the street at the crossing is 20-25 feet by plaintiff's estimate and 16 feet by estimate of defendant's diesel engineer. No exact measurements were furnished. Some 70 or 75 feet south of the crossing and on the west side of the street is situate the Dampier garage building. A traveler approaching from the south, after passing the garage, has a clear and unobstructed view of the railroad tracks to the west of the crossing for a distance of at least a quarter of a mile. The rails approaching to and over the crossing are laid on a 1.20 grade, but in which direction the slope is not shown. Plaintiff, a farmer aged 60, was familiar with the crossing. He came from the south on this occasion and, according to his testimony, as he approached he saw defendant's diesel engine with two or three cars attached standing on the south track, headed east, a short distance west of the crossing. The exact place where the engine stood is a little uncertain. Plaintiff estimated it on two or three occasions as 30 or 40 feet west of the crossing, and on at least one occasion as 30 to 40 feet from where he was sitting in his truck as he drove up and stopped. His statement is that he approached at a speed of 15 or 20 miles an hour, which he gradually slowed to a complete stop a short distance south of the south rail; that at that time the engine appeared to be standing still with no activity about it; no whistle blew and no bell was ringing. Simultaneously with his stopping or immediately thereafter he rolled down the window on his left side, looked out at the engine on his left, then rolled his window back up and simultaneously or near-simultaneously looked to the east toward Lebanon to see if anything was coming from that direction, started his motor, threw his 1947 model Dodge truck into gear and started on across the track. He said he never heard the diesel 'start up.' 'If it did I of course had my mind looking off the other way.' After his front wheels crossed the south rail he 'started' to look back to the west and just as he did so the train was upon him. The interval of time required by all of these activities occupied, by plaintiff's estimate, somewhere from less than 30 seconds to a minute and a half. Again, he said he thought his truck stood before the crossing between 10 and 30 seconds. According to plaintiff's testimony the front 'corner' of the engine caught the truck and dragged it eastward a distance of 30 to 40 feet before it stopped. Two witnesses, one of whom was standing in the front of the Dampier garage but facing another direction, and one within the garage, supported plaintiff to the extent that they said they heard no whistle or bell, although they heard the crash of the collision.
The testimony given by members of the defendant's train crew was to the effect that the diesel engine was an all-purpose road switcher with two cabooses. Previously on that day it and its crew had been to the west 'doing work train work' and at the time of the collision they were coming in for dinner and intended to take the switch track, the entrance of which lay immediately east of the crossing. As they came east toward the crossing the engine was first stopped a mile or more to the west at an 'A' block signal in order to get permission to proceed. The engine then came on east and halted at a 'stop and proceed' signal located somewhere between 360 and 400 feet west of the crossing. It then proceeded easterly toward the switch track entrance on the other side of the crossing. Members of the train crew testified that the crossing signals were given. The engineer said he saw plaintiff approaching in his truck at a speed of approximately 18 to 20 miles per hour, that plaintiff did not stop; and his testimony would at least justify the inference that plaintiff ran into the side of the front portion of the engine. The engineer said he applied his brakes in full after the engine was already into the crossing. According to the train crew members, the engine came to a stop a dinstance of somewhere between eight and twenty feet east of the crossing (depending upon which of their estimates is accepted), but whether they meant by this the front or rear of the engine is not apparent. The speed of the engine upon entering the crossing was variously estimated by train crew members at somewhere between five and ten miles per hour. Defendant produced a witness with a speed tape which he said indicated the train was traveling eight to ten miles an hour. Of this more anon.
Appellant makes 19 assignments of error, 11 of which can be grouped under its point that plaintiff did not make a submissible case bottomed on his theory that the train was standing, stopped, some 30 to 40 feet west of the crossing, because such was a physical impossibility and opposed to the physical facts presented by the speed tape of defendant's train, which was admitted into evidence as defendant's Exhibit B. One Williams, defendant's road foreman of equipment, produced this tape, upon which were 16 horizontal lines, every other oen of which was numbered, by the 10's, from zero to 70. These lines represented speed in miles per hour. The lines were broken at regular intervals, perhaps (although not so marked) to designate distance. Along such tape ran a jagged or uneven pencil park supposedly indicating the speed of the train. The witness testified that the purpose of the tape was to register speed from one terminal to another at all points as long as the engine was in motion. He said it would show whether a stop had been made at any particular point, but as we understand his testimony this determination, i. e., the place of stopping, was made by laying a profile of the railroad alongside the tape and correlating the two. He did not identify and there was not offered in evidence any such profile. He testified that as an engine comes into the terminal a maintenance man goes to the speed recorder, removes the tape, marks it for identity and then it is taken to the master mechanic's office, where it is filed in the records. This witness, in interpreting the exhibit in relation with the profile, testified that it showed a stop at a signal a mile and a half west of the 'stop and proceed' signal whereat a second stop was made at a point 350 to 400 feet west of the crossing, and that no other stops were made until after the crossing was passed. He was not the custodian or person in charge of such record. He did not himself remove the tape from the recorder on the engine, nor did he know what person had removed it, who marked it as referring to the date and the engine involved nor when it was removed. It first entered his knowledge when he went to the master mechanic's office where it was kept, and read it. As to the accuracy of the speed tape, he was of the opinion that, using the profile as an adjunct, he could tell that it would show the point of stopping within a maximum variation of 25 feet (a variation in both directions would be 50 feet). He indicated a possibility of some variation if the engine slipped. He did not know whether that occurred in this instance. Apparently curves in the road have some effect upon this function. He also left some confusion, perhaps in the mind of the jury and certainly in the mind of the readers of the transcript, by his explanation, or lack of explanation, as to why a longitudinal space of a half-inch on the tape would in one instance represent a mile and a half and in another instance one-half of such space, or a quarter-inch, would indicate a distance of only 350 to 400 feet. No explanation was made as to what would happen in regard to the longitudinal spaces if a work train was in motion part of the time going backward.
We think we have condensed and related sufficient of the testimony to demonstrate the total inadequacy of this exhibit and its interpretation to serve as incontrovertible proof of any fact. Infallibility of the recorder was neither admitted nor established. If it was infallible, the accuracy of its companion necessary to interpretation in regard to the place of stoppage, to-wit, the profile, was not shown and was not admitted. Had these two facts been admitted, there would still remain the question of whether this was the identical tape from the identical engine upon the identical date. We are doubtful if the witness was either the custodian 'or other qualified witness' necessary to establish even its admissibility, Section 490.680 RSMo 1949, V.A.M.S.; and lastly the fallibility and credibility of the sponsoring witness in making his interpretations from the speed tape and its companion profile would have been for the jury in any event (see Williamson v. St. Louis Public...
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