Camp v. Kurn

• Decision Date: 12 July 1940
• Citation: 142 S.W.2d 772,235 Mo.App. 109
• Parties: ANNABELLE CAMP, RESPONDENT, v. J. M. KURN AND JOHN G. LONSDALE, TRUSTEES OF ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS
• Court: Missouri Court of Appeals

142 S.W.2d 772

235 Mo.App. 109

ANNABELLE CAMP, RESPONDENT, v. J. M. KURN AND JOHN G. LONSDALE, TRUSTEES OF ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Springfield

July 12, 1940

Appeal from the Circuit Court of Jasper County.--Hon. Ray E. Watson Judge.

Judgment reversed and cause remanded.

J. W Jamison and Mann & Mann for appellants.

Ray Bond and William M. Vaughan for respondent.

FULBRIGHT J. Tatlow, P. J., not sitting and Smith, J., concurs.

OPINION

FULBRIGHT, J.

This is an action by plaintiff to recover the statutory penalty for the death of her husband alleged to have resulted from an accident in which the truck he was driving was hit by one of defendants' railroad trains. The cause was tried before a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 3500, from which judgment defendants duly appealed.

The petition is in conventional form. The answer is a general denial and a plea of contributory negligence.

Shortly after noon, January 22, 1938, James Otto Camp was fatally injured when a Chevrolet panel body truck, with enclosed cab, which he was driving, was struck by defendants' freight train at a public grade crossing in the town of Iantha, Barton County, some distance west of defendants' depot.

At the first trial the jury failed to agree upon a verdict. On a second trial, October 6, 1939, a verdict and judgment was rendered as above stated. The case was submitted to the jury solely upon negligence under the humanitarian doctrine for failure of the operatives of the train to slacken its speed or to have sounded "an emergency warning with the whistle" after they saw, or might have seen the deceased "approaching and in a position of imminent peril," and that he was oblivious of the approach of the train.

The deceased, twenty-five years of age, was in the employ of the Interstate Grocer Company at Joplin, and shortly before the collision, had stopped his truck at the McLoud Store near the crossing and leaving there, drove toward and upon the crossing where the collision occurred.

Defendants' tracks run in an east and west direction through the town. The main line track on which the train was approaching from the east is straight for some distance east as well as west of the crossing. The public road or street, that crosses defendants' tracks, is surfaced with gravel and about 75 feet in width. Fifty feet north of the main line track, extending for some distance both east and west of the crossing, there is a side track. Approximately 150 feet north of the main line track and extending westwardly from the north and south road is a street running parallel to the track. On the north side of this street and approximately 200 feet west of the street or road which runs north and south, is McLoud's store where the deceased last stopped. 100 feet farther west and on the same side of the street is the store of plaintiff's witness, A. E. Snyder.

There were no cars on the north switch tracks and the only building between the street and main line tracks was the station which was located farther west than McLoud's store. East of the north and south street and north of the tracks there were no buildings or other obstructions to the view.

By stipulation of the parties the original photographic exhibits, consisting of plaintiff's Exhibits Two and Three, and Defendants' Exhibits B and C, were detached from the Bill of Exceptions and filed with the clerk, to be considered as part of the Appellant's Abstract of the Record. These exhibits demonstrate, as does the testimony of the witnesses, that there was no obstruction to the view, either of the deceased or of the engine men. The freight train consisting of an engine and 49 cars, estimated by the witnesses to be traveling at from 40 to 45 miles per hour, was not scheduled to stop at Iantha. The deceased came out of McLoud's store, turned his truck around and traveled east 200 feet to the intersection of the two streets and then south to the crossing at a uniform speed estimated by witness Snyder at ten miles per hour; by the locomotive engineer, twelve to eighteen miles an hour, and by other witnesses, from ten to fifteen miles per hour. All agreed there was no change in his speed in the last 150 feet.

Charles H. Miller, a mechanic who serviced the truck driven by the deceased, as a witness for plaintiff, testified that the truck was equipped with four-wheel hydraulic brakes, in good condition; that traveling at 10 miles per hour it could have been stopped in 12 to 15 feet; at 15 miles an hour, in 20 to 25 feet; and at 18 miles an hour, in 30 to 35 feet. Witness Snyder testified that he had driven a truck of similar construction over this crossing frequently; that at the speed he estimated the deceased was driving, the truck could have been stopped in five or six feet. He further testified that he was standing in front of his store, 100 feet west of McLoud's store and approximately 300 feet west of the point where the deceased's truck turned to the south; that he watched the deceased and his truck from the time he left McLoud's store until the time of the accident. Among other things, he stated: "I heard the train whistle when I stepped out of the store there; the ordinary crossing whistle; that was the first whistle. Well, I wouldn't say hardly whether that was the only whistle; I was kind of interested watching the truck and train approach and I wouldn't say. It seems to me like they was doing more whistling, but I wouldn't swear to that. I was watching this truck all of the time."

In answer to the question of why he was watching the truck, this witness testified:

"Well, I don't know, I stepped out the door and heard that whistle and seen this fellow get in the truck--I don't know what made me think it, but it just seemed to me like he was going to drive on the track there, and there was a fellow getting oil--I started to get some oil for him--I started to the pump and was watching the train and truck both at the same time." He also testified that when the truck left the store the train was approaching and in deceased's view as he drove east facing the train. Witness heard the crossing whistle and stated the train was putting out a great volume of smoke, "like it was pulling pretty heavy and was making an awful noise; it was making a lot of noise and a lot of smoke was pouring out."

Engineer Stout and Fireman Fletcher, both testifying as witnesses for plaintiff, stated that the bell upon the engine was being continuously rung by an automatic bell ringer; that when a mile from the station the station whistle of one long blast was sounded, and when the train reached the whistling post, a quarter of a mile from the crossing, the regulation crossing whistle, consisting of two longs, a short and a long blast, was sounded. These blasts of the whistle were sounded at intervals so that the last blast of the whistle was still being sounded when the train struck the truck.

The engineer testified that he could see the road clearly for a distance of a quarter of a mile from the crossing; that when he first saw the truck it was somewhere between 50 and 100 feet south of the crossing, and was coming upon the side track; that the train was about 300 feet east of the crossing at the time, traveling between 40 or 45 miles an hour. To the best of his knowledge the truck was traveling anywhere between 12 and 18 miles an hour.

"Q. Now when you were at that point 300 feet east of the crossing and you saw this truck at this siding north, what did you do? A. Well, I was using the whistle--blowing the whistle." He further testified that he applied the brakes when about 200 feet from the crossing.

The fireman testified that the brakes were applied when the engine was 200 feet from the crossing, although admitting that in a former statement he had placed the distance at 175 feet, and that "as we went across the crossing the brakes began to touch the wheels and began to reduce the speed of the train." Both the fireman and the engineer testified that they were familiar as railroad men, with what is known as an emergency or stock signal; that such a signal with the whistle consists of a series of short blasts; that no such signal was given as the train approached the crossing at the time of the accident, the only whistle being the regulation crossing whistle.

T. L. Mallory testified for defendants in substance as follows: That his attention was first attracted to the train by the whistle; at that time the truck was just leaving McLoud's store. "The train continued to whistle from that time up until this truck was hit--that is how come me--I seen this truck coming around the bend, and I heard the train whistle, and I turned to the east window and looked out as this train was coming, and I looked back at the truck again, and I called my wife's attention to it. I just watched that truck come down that road, and I knew if one or the other didn't check their speed that they was just about going to meet on the crossing. The train continued to whistle all of the time. The train was just whistling all of the time is all I would say. The windows to the building were closed. The truck was running about 15 miles an hour, I would say. There was nothing about it that indicated to me that it was not going to stop, only he just still kept on coming."

And on cross examination this witness testified as follows:

"I stood here and by turning my head I could look to the east or could look to the north. I watched this truck approaching. It never slackened its speed at all as it approached and that concerned me. I called my wife's attention to that situation, and as it got closer, he did not ever slow up. My judgment...