Gordon Fireproof Warehouse & Van Co. v. Hines

• Decision Date: 05 April 1921
• Docket Number: 5611.
• Parties: GORDON FIREPROOF WAREHOUSE & VAN CO. v. HINES, Director General of Railroads.
• Court: U.S. Court of Appeals — Eighth Circuit

272 F. 604

GORDON FIREPROOF WAREHOUSE & VAN CO. v. HINES, Director General of Railroads.

No. 5611.

United States Court of Appeals, Eighth Circuit.

April 5, 1921

Frank H. Gaines, of Omaha, Neb. (Gaines, Ziegler, Van Orsdel &amp Gaines, of Omaha, Neb., on the brief), for plaintiff in error.

Wymer Dressler, of Omaha, Neb. (Robert D. Neely and Paul S Topping, both of Omaha, Neb., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and LEWIS, District Judge.

LEWIS District Judge.

On September 23, 1918, an auto-truck driven by William Kimball easterly on Webster Street in the city of Omaha collided with a freight car which, with three other cars, was being pushed across the street from the north by an engine, all then in the possession of and operated by the Director General of Railroads. The engine and cars were moving at a speed of from four to six miles an hour. The truck struck the car on its side near its southerly end, and the impact was with such violence as to bend the iron step under the side of the car inward under the car in the direction in which the truck was going, and to cast Kimball out onto the street whereby he was seriously and permanently injured. The truck belonged to the plaintiff in error, but had been driven by Kimball for several months as an employe, and under a state statute the employer was authorized to bring and maintain this action for damages in his behalf. It charged that the engine and cars were being moved at rapid speed, that there was no lookout on them to give warning of approach, failure to place a watchman at the crossing, failure to give warning by sounding the whistle or ringing the bell on the engine, and by placing a string of cars on a track alongside to the west, so that Kimball's view was obstructed; all of which were relied on as actionable negligence. The answer admitted the collision and injury, which it charged were due soley to the negligence and carelessness of Kimball. The court admitted the testimony on both sides, and sustained the defendant's motion for a directed verdict on the ground that Kimball's testimony disclosed that--

'He either saw the approaching cars, as he said at one place in his testimony that he saw them coming and tried to run across, or he failed to see them with the opportunity that he had to see them * * * because he ought to have looked at a place where looking would have been of some avail.'

Webster Street runs east and west. It is sixty feet wide between curbs and is brick-paved. Several railway tracks, used for switching, loading and unloading freight and storing cars, cross it at right angles about the place of the accident, one of which is to the west of the track on which the engine and cars were moving, the distance between them being approximately twenty-five feet. There were standing freight cars on the westerly track north of Webster Street. Kimball testified that the south end of this string of cars extended about half a car length into the street, but the clear weight of the evidence showed it to be not farther south than the north line of the sidewalk on the north side of Webster Street. He was familiar with this crossing; he had been passing it three or four times a day, and on some days more than that. On this occasion he came from the west. He did not stop. He testified:

'I was about five feet away from the west track when I slowed down. I slowed down to less than eight miles an hour. I couldn't tell just how much I slowed down, and when I saw the train coming I tried to run across. I didn't look to the north after getting on the first track,-- that is the west track, but I did look before I had started across. I never saw the string of cars involved in this collision at all, and I do not remember the collision. I didn't even know what hit me. I do not remember being struck, and have no memory of any kind from the time I got on the first track until I came to and somebody gave me a drink of water.'

He further testified that when he slowed down he looked and listened but did not see or hear approaching cars, that he could not see on the second track at all when he looked to the north after slowing down, and 'even if I had looked after my automobile was on the first track, I could not have seen north very far, because of the cars sticking out there' (the string of cars standing on the west track just north of Webster Street). The truck, as it traveled eastward, was well to the south side of Webster Street up to the time of the collision. The trainmen and...