Campbell v. Chicago, B. & Q. R. Co.

• Decision Date: 01 May 1922
• Docket Number: No. 14323.,14323.
• Citation: 245 S.W. 58,211 Mo. App. 331
• Parties: CAMPBELL v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Court of Appeals

245 S.W. 58

211 Mo. App. 331

CAMPBELL v. CHICAGO, B. & Q. R. CO.

No. 14323.

Kansas City Court of Appeals. Missouri.

May 1, 1922.

Motion to Modify Overruled July 3, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by George F. Campbell against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

H. J. Nelson, J. A. Lydick, E. M. Spencer, and J. G. Trimble; all of St. Joseph, for appellant.

Guitar & Innis; of St. Joseph, for respondent.

ARNOLD, J.

This is a suit for damages to an automobile truck, which was struck by an engine operated by defendant, its agents and servants.

The accident occurred at the intersection of Fifth and Seneca streets, in the city of St. Joseph, Mo., on December 6, 1920.

Plaintiff was the owner of a 2½-ton "Indiana" automobile truck, upon which was conatructed a steel body especially equipped for hauling and dumping heavy loads. At the time of the accident in question, plaintiff had hired his said truck to one L. H. Waddell, at a rental of $1 per hour for the time used. Waddell had a contract for hauling asphalt from a plant situated on the south aide of Seneca street and on the west side of Fifth street in said city. He employed Elmer Wye to drive the truck.

Seneca street runs east and west, and Fifth street north and south. The asphalt plant sets back from the south line of Seneca street about 30 feet, and about 46 feet west of the west line of Fifth street. The railroad tracks occupy all of Fifth street at its intersection with Seneca street.

The trucks were backed from Seneca street `through an entrance, or gate, to the loading place, which was partly under the asphalt plant building. When loaded the truck moved directly north until it passed through the gate into Seneca street, thence turning east, and would travel about 46 feet before reaching the railroad track. From a point north of Seneca street the railroad track ran to the southeast on a slight curve, straightening south into Fifth street, at about the south line of Seneca street. A little west of the asphalt plant, and north of Seneca street was a warehouse which obstructed the view of an engine coiling from the northwest until within 215 feet of the crossing where the accident occurred, and for that distance the view was unobstructed from the loading place to the track.

On the occasion in question the engine, on being detached from the train, ran northwest through what is called the "middle yards," and then started backing on its way to the roundhouse. The engine was equipped with an automatic bell which, when started ringing, continued to ring until the power was shut off. As the engine was proceeding south, the engineer was on the east side and the fireman on the west of the engine. About the same time the automobile truck passed into Seneca street and moved toward the railroad track at about 3 or 4 miles per hour. The engine, coming from the north, was moving at a rate variously estimated at from 10 to 20 miles per hour. When the engine was within 60 to 70 feet of the crossing, the truck moved onto the track and stopped, the driver thereof jumping therefrom. The corner of the locomotive tender struck the truck, tipped it over, and hurled it across Seneca street and against the fence at the southwest corner of the intersection of the two streets mentioned.

The amended petition pleads section 1052 of the Revised Ordinances of the city of St. Joseph, 1905, as amended by General Ordinance No. 1326, as follows:

"No railway company shall by itself, agents or employees run any passenger train upon or along any railway track within the corporate limits of the city at a greater speed than ten miles per hour; nor shall any such corporation by itself, agents or employee's run any freight car or cars upon or along any railway track within said city at a greater rate of speed than six miles per hour."

Section 1057 of the same ordinances also is pleaded, as follows:

"The bell of each locomotive engine shall be rung continuously while running within said city."

Damages in the total sum of $2,900 are prayed. The answer was a general denial. The cause went to trial to a jury, resulting in a verdict for plaintiff for $1,650. A motion for new trial and in arrest were duly filed and by the court overruled. Defendant appealed.

In its first assignment of error defendant urges that the court erred in admitting in evidence section 1057 of the Ordinances of the city of St. Joseph, which relates to the ringing of the bell on the locomotive, for the reason that plaintiff confined himself to a case under the humanitarian, or last chance, doctrine, neither proving nor claiming negligence of defendant until after the employees of the latter had seen, or could have seen, the peril of the automobile truck. We do not accept this position of defendant as tenable. The petition charges negligence, as follows:

"That defendant's agents and servants in charge of said locomotive engine carelessly and negligently ran said engine at a high and dangerous rate of speed and at a greaser rate of speed than 10 miles per hour as it approached and was crossing said Seneca street; that defendant's agents and servants in charge of said engine carelessly and negligently failed to sound any bell or to give any warning of the approach of said engine to said crossing; that defendant's agents and servants in charge of said engine carelessly and negligently failed to ring the bell on said engine continuously while it was running in said city of St. Joseph and was approaching said crossing, in violation of section 1057 of the Ordinances of the city of St. Joseph as herein set out; and that defendant's agents and servants in charge of said engine carelessly and negligently failed to stop said engine or to slacken the speed thereof after they saw, or in the exercise of ordinary care could have seen, that plaintiff's automobile truck was on or near defendant's tracks in a position of peril, in time, by the exercise of ordinary care, to have stopped said engine or to have slackened the speed thereof and to have thus avoided said engine colliding with plaintiff's automobile truck."

Thus it will be seen that the petition charges general negligence, as well as negligence under the humanitarian doctrine. There was substantial evidence introduced by plaintiff to support the allegation that the bell was not ringing, which defendant's testimony tended to contradict. It was therefore a question for the jury and the admission, of the ordinance in evidence was not error.

It must be conceded that it was the duty of defendant, through its agents and servants, to observe the requirements of the city ordinances by sounding the ball as the engine was being moved through the city. Such nonobservance of the ordinances would be negligence per se. Reed v. Railroad, 107 Mo. App. 238, SO S. W. 910; Jackson v. Railway, 157 Mo. 621, 58 S. W. 32, 8C Am. St. Rep.' 550; Hutchinson v. Railroad, 161 Mo. 246, 31 S. W. 635, 852, 84 Am. St. Rep. 710; Edwards v. Railway, 04 Mo. App. 33, 61 S. W. 053.

Defendant next urges error in the admission in evidence of section 1052, of the Ordinances of St. Joseph, as above quoted. The testimony of the engineer and fireman in charge of said engine shows they had been instructed that the ordinance prohibited the operation of the engine at the point where the accident occurred, at a greater rate of speed than 10 miles per hour, and that the rules of defendant company made this requirement. There was evidence, which was contradicted by defendant's witnesses, that the locomotive was exceeding the speed limit at the time the accident occurred. This, too, was a Question for the jury's determination. The ordinance (section 1052) was properly admitted in evidence, and even if it were improperly admitted, under the conditions presented in this case, defendant's rights could not have been prejudiced thereby.

But defendant's chief objection to the admission of this section 1052, seems to be and it is so argued, that the ordinance does not contemplate the regulation of the speed of "light" engines. The term "light" in railroad parlance meaning an engine unattached and running alone.

We...