Casey v. Northern P. Ry. Co.
| Decision Date | 16 May 1921 |
| Docket Number | 4327. |
| Citation | 198 P. 141,60 Mont. 56 |
| Parties | CASEY v. NORTHERN PAC. RY. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; Ben. B. Law, Judge.
Action by William B. Casey against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals from the judgment and from the order denying its motion for new trial. Reversed, with directions to dismiss the complaint.
Gunn Rasch & Hall, of Helena, and W. S. Hartman, of Bozeman, for appellant.
Miller O'Connor & Miller, of Livingston, for respondent.
On the evening of March 1, 1917, Northern Pacific freight train No 1713, west bound, left Winston at 8:03 for East Helena followed immediately by engine No. 1288, which had assisted the train from Townsend to Winston, and at the latter place had been cut off. The distance from Winston to East Helena is 15.9 miles, but on account of train troubles No. 1713 did not reach the East Helena yard limits until 8:52. The train was required to take the siding and moved to and a few feet past the switch before it came to a stop. There were some 64 cars in the train, and the caboose stood a short distance east of the yard limit board. Engine 1288 stopped from 45 to 50 feet east of the caboose. Twenty-six minutes after train 1713 left Winston, another west-bound freight No. 1746, also left Winston for East Helena, with a load of 1,550 tons (28 loaded cars and six empties), and somewhere near 9 o'clock ran into engine 1288, forcing it forward into the rear of train 1713. Just before the collision, William B. Casey, the engineer in control of train 1746, jumped from his locomotive, fell, and sustained injuries. He brought this action to recover damages, and charged the railway company with negligence in failing to give timely warning that train 1713 was standing upon the main line track and extending eastward of the yard limit board.
The answer denies any negligence on the part of the company, or its agents and servants in charge of train 1713, and alleges negligence on the part of the plaintiff in approaching the yard limit board at an excessive rate of speed. The trial resulted in a verdict in favor of plaintiff, and from the judgment entered thereon and from an order denying a new trial defendant appealed.
Of the several assignments of error but one requires consideration. Is the evidence sufficient to sustain the verdict?
It is established by the evidence without controversy that it was the duty of the rear brakeman on train 1713 to exercise reasonable care to give full protection to train 1746 by warning signals; that he did warn it with his lighted lantern and a lighted fusee, and that the signals were seen by the plaintiff before the collision occurred; that it was the duty of plaintiff to approach the yard limits with train 1746 under such control that he could stop if necessary; and that plaintiff knew that he was required to take the East Helena siding to permit train 222 to pass upon the main line track.
It is conceded that a considerable distance east of the yard limit board the track runs through a cut; that west of the cut the track curves to the south, then runs straight for some distance, and then curves slightly to the north; and that plaintiff could not see the rear lights on train 1713 or on engine 1288 until he reached the straight track.
In order to determine whether the brakeman was negligent in failing to warn plaintiff at a sufficient distance from engine 1288 that by the exercise of ordinary care train 1746 could have been stopped and the collision avoided, the answer to each of the following inquiries is of primary importance: (a) Where was the rear end of train 1713 with reference to the yard limit board, and where was engine 1288 when the collision occurred? (b) Where was the brakeman when train 1746 came into view? (c) Where does the straight track begin from the east? (d) Where is the cut referred to in the evidence? (e) How far was plaintiff from engine 1288 when the signals were first seen? (f) At what rate was plaintiff running his train?
(a) In his complaint plaintiff alleges that the rear end of train 1713 was 75 feet east of the yard limit board, and again he alleges that it was 275 feet east of that point. Upon the trial he testified that it was 5 car lengths east of the yard limit board and that the cars average 50 feet in length. He alleges that the rear of engine 1288 was 350 feet east of the board, and that his train collided with it 400 feet east of that board.
(b) Plaintiff testified that he saw the lighted fusee in the brakeman's hand and the rear lights on engine 1288 at the same instant; that when he first saw these signals the brakeman was 4 or 5 car lengths east of the rear of engine 1288 and was going east. Later he testified that immediately after the collision he met the brakeman 4 car lengths east of the front of train 1746. The undisputed evidence is that the impact drove the caboose of train 1713 westward to the yard limit board a distance of 250 feet according to plaintiff's testimony, so that, if the second statement above is true, the brakeman was not as far east when the collision occurred as he was when plaintiff first saw him, though he was traveling eastward all the time. At an investigation held at Livingston four days after the collision, at which the train crews were present and several witnesses, including the plaintiff, were examined touching the cause of and responsibility for the collision, the plaintiff then stated that immediately after the collision he met the brakeman about the middle of train 1746, and he testified that the train consisted of 34 cars. At the same investigation he testified: "I say Brakeman Moorehead was not over 10 car lengths behind helper" (engine 1288).
(c) Plaintiff contented himself with giving estimates of the distances. He did not undertake to locate definitely the point where the straight track commences from the east, but inferentially he fixed it at 350 feet east of the rear of engine 1288, for he testified that he saw the signals when he first came upon the straight track, and that he was then 7 car lengths from engine 1288. By actual measurements the distance from the yard limit board to the point where the straight track commences from the east is 1,600 feet in round numbers. If the rear of engine 1288 was 350 feet east of the yard limit board, as alleged in plaintiff's complaint, then the straight track actually commences 1,250 feet east of the rear of engine 1288, instead of 350 feet, as estimated by plaintiff.
(d) Plaintiff also estimated that the rear of engine 1288 was 20 car lengths, or 1,000 feet, west of the cut. The measurements disclose that the distance between the west end of the cut and the rear of engine 1288 is 2,326 feet, assuming that engine 1288 was stationed at the point fixed by plaintiff in his own testimony. Plaintiff testified that the cars average 50 feet in length, but a check of his own train from the wheel report disclosed that they averaged 44.3 feet in length.
(e) Plaintiff alleges in his complaint that when he first observed the signals or received warning that a train was on the main line track east of the yard limit board he was only 150 feet from the rear of that train. Upon the trial he testified first that he was 7 car lengths away, and later testified that he was 11 car lengths away when he jumped from his engine, and that he jumped after he observed the signals and after he had set the brakes. At the investigation at Livingston he stated that he did not believe that he was over 15 or 16 car lengths away. Marchington, the fireman on Casey's locomotive and a witness for plaintiff, testified that the brakeman was 15 or 16 car lengths away when he first saw the signals. If the brakeman was 4 or 5 car lengths east of the rear of engine 1288, as plaintiff testified, then train 1746 was from 19 to 21 car lengths from engine 1288 when the signals were first seen.
(f) Plaintiff testified that he had exceeded 30 miles per hour on straight track after he left Winston. At Livingston he stated that he averaged about 28 or 29 miles per hour from Placer, through Louisville and to the cut. Upon the trial he testified that when he first applied the brakes in the cut he was going 20 miles per hour, and later testified that he was running 25 miles per hour, and again that when he applied the brakes he reduced his speed to 25 miles per hour. He testified that when he first saw the signals he had reduced his speed to 15 miles per hour and could have stopped his train and avoided the collision if he had had 11 car lengths distance within which to do it. He also testified that he was 11 car lengths away from engine 1288 when he jumped, and that he jumped because he saw he could not stop in time to avoid the collision, and that, with the brakes set, his train was still going about 6 miles per hour when it struck engine 1288. He also testified that, if his train had been running 25 miles per hour, he could have stopped in 18 or 19 car lengths (900 to 950 feet), but he failed to stop within 1,250 feet or 25 car lengths.
Whatever other controversy may arise over the rate at which train 1746 was traveling when the collision occurred, the fact remains that the impact was sufficient to practically destroy engine 1288 and to drive it forward (though the brakes on it were set), demolishing the caboose and one car in train 1713, derailing five or six other cars, and carrying the broken caboose to the yard limit board, a distance of 275 feet according to plaintiff's own theory.
Plaintiff testified that the brakeman was only 4 or 5 car lengths east of the rear of engine 1288 and should have been back 7 car lengths further than he was ...
To continue reading
Request your trial