Hackett v. Wabash R. Co., 43689
| Decision Date | 13 September 1954 |
| Docket Number | No. 1,No. 43689,43689,1 |
| Citation | 271 S.W.2d 573 |
| Parties | Thomas Earl HACKETT, a Minor, by Paul Hackett, His Next Friend, Plaintiff-Respondent, v. WABASH RAILROAD COMPANY, a Corporation, and Anthony D. Williams, Defendants-Appellants |
| Court | Missouri Supreme Court |
J. H. Miller, St. Louis, Hunter, Chamier & Motley, Moberly, for defendants and appellants.
C. M. Hulen, Moberly, for plaintiff and respondent.
VAN OSDOL, Commissioner.
In this case plaintiff, Thomas Earl Hackett, recovered a judgment of $12,000 damages for personal injury against defendants-appellants Wabash Railroad Company and its engineer. Plaintiff, a minor seven years of age, was injured July 12, 1951, when a northbound Wabash steam locomotive drawing a train struck the eastbound 'pickup' truck in which plaintiff was riding. The collision occurred at a grade crossing about one and one-fourth miles south of Moberly. At this point the Wabash single-track (north-south) line is parallel with the single-track line of Missouri-Kansas & Texas Railroad Company (the Katy), the Katy track being approximately one hundred or one hundred five feet to the westward. East of the Wabash track lies U. S. Highway No. 63. Coming from the south, Highway No. 63 is parallel with the Wabash line, but a short distance north of the crossing the highway curves somewhat to the northeastwars.
The truck in which plaintiff was riding had been moving eastwardly on an east-west highway (Rock Road). The truck was owned and was being driven by plaintiff's father; and plaintiff and his brother Sammy, nine years old, were standing up in the bed of the truck just behind the cab. They were holding to the stakes of a stock rack mounted to the rear of the cab of the truck. One Martin Grislona was riding in the cab with plaintiff's father.
Plaintiff's father, Paul Hackett, testified that in driving the pickup truck on Rock Road, a heavily traveled highway, toward U. S. Highway No. 63, he had progressed across the crossing of the Katy and was moving along Rock Road toward the crossing of that road over defendants' line. Rock Road at this point is not quite eighteen feet wide, and is of gravel. Between the Katy track and the Wabash line, Rock Road 'dips' and continues to dip until one starts up the grade to the Wabash crossing. The witness looked both ways and didn't see a train. He didn't hear a whistle or bell. If a whistle or bell had been sounding, he could have heard it. His pickup truck was a new one the noise of which would not have interfered with his hearing a whistle or bell. He was moving five to seven miles an hour, and could have stopped in two or three feet. The witness testified, 'I didn't know I was hit until after I got out and the train was just almost by, I suppose two coaches left.' The engine had struck the bed and rack of the truck, and the back wheels of the truck 'were gone.' Plaintiff was lying unconscious six to ten feet from the crossing, and about three feet from the track; his head was bleeding.
The witness, Paul Hackett, further testified there were weeds to the southward between the Wabash and Katy tracks. He supposes the weeds were three or four feet high, and he thinks the weeds extended up to the Wabash ballast. The weeds had been cut, 'just a little narrow strip', for some hundred fifty feet south of the crossing. The weeds had been cut 'quite a while before the day of the accident.' There is a 'dump' in the middle of the right-of-way (between the Wabash and Katy tracks) about one hundred fifty feet south of the crossing. The witness had looked north and south when he was between the tracks. He was as close as twenty-five feet to the Wabash track when he looked. He said, 'Well I guess I was listening.' He again said, 'I am going to tell you I was listening.' He thinks he has good hearing. He wears glasses only when he reads.
The witnesses, plaintiff and his brother Sammy, did not hear a whistle or bell. They testified they could have heard a whistle or bell if it had been sounding.
A witness who resides on Rock Road just west of the crossings did not hear a whistle or bell. However, as the Wabash train approached, this witness was mowing his yard with a power mower, and his young son was 'traveling around' the yard on a motor scooter. Both of these machines were running at the time and making a noise. The witness mentioned 'a rise in the ground (between the Wabash and Katy tracks) a half quarter south of that rock road * * * and a mound of dirt.' He had never paid any particular attention to the height of the rise, but one 'can see trains running on the other side of it * * *.'
Defendant Anthony D. Williams, engineer and in charge of the Wabash locomotive witness for defendants, testified that the train, as it moved northwardly approaching Rock Road, was going between seventy and seventy-three miles per hour. The train 'may have been' about thirty-eight minutes last. 'The engine was working in its fullest capacity.' The sun was still shining. Being on the right (east) side of the steam engine, the witness did not see the pickup truck approaching from the west. 'I saw him and he was hit practically all at the same time.' The witness was sounding the whistle for the crossing when the engine struck the truck. He let go of the whistle lever, and set the emergency brakes. He had given the 'regulation standard crossing whistle.' The bell was also ringing.
The fireman was not looking. He was not seated on the left in the cab of the engine and never saw the approach of the truck. He 'was up' shutting off the steam. However, he said the whistle had been blown, and it was still blowing when the impact occurred. The bell was also ringing. Other witnesses for defendants testified that the whistle was blowing, although some of these witnesses were not in a position to hear the bell, assuming it was in fact ringing.
Defendants' steam-propelled locomotive measures sixteen feet from the rail to the top of the smokestack.
Witnesses for defendants testified of the physical condition and elevation of the ground lying between the Wabash and Katy tracks and to the southward of Rock Road. The Wabash track is a little over three feet higher than the 'ground line' of Rock Road between the Wabash and Katy tracks. About three hundred fifty feet south of the crossing the ground line of the right-of-way is higher than the top rail. There is an old road bed just west of the Wabash track, the elevation of which is one or one and one-half feet lower than the top rail of the present track. A witness for defendants testified that, standing at a point in the center line of Rock Road twenty-five feet west of the Wabash crossing, one can see 'practically all the top of the rail down as far as, I'd say about 650 feet south of the crossing.' Defendants also introduced evidence tending to show the sight distances down the Wabash track, the observer standing on Rock Road at various distances to the westward of the crossing. Generally, defendants' evidence tended to minimize the obscuring effect of the elevation of the land, and the vegetation thereon, to the southward between the Wabash and Katy tracks.
Defendants-appellants contend the trial court erred in overruling their motion for a directed verdict. Defendants assert the action is based on common-law negligence, and there was no common-law duty of defendants to give a warning by bell or whistle in the circumstances of this case. Supporting their contention defendants say there was no evidence of any extraordinary circumstances of user or of obstructions to view at the crossing in question; the father of plaintiff, driver of the pickup truck, had the duty to look and listen and if he had done so he could have seen or heard the approach of the train, and his testimony that he looked and did not see the train was contrary to the physical facts and should be disregarded. Defendants-appellants urge that, consequently, the driver must be held to have seen the train and a warning was unnecessary; and, since the issue of warning was out of the case, the negligence of the driver was the sole proximate cause of plaintiff's injury. On the question of the submissibility of plaintiff's case, defendants-appellants also contend there was no substantial evidence that defendants failed to give a warning of the train's approach. And defendants-appellants further contend that the trial court erred in giving plaintiff's principal (only) verdict-directing Instruction No. P-3; and that the amount of the verdict was excessive.
We have examined these contentions of defendants-appellants relating to the submissibility of plaintiff's case, and relating to asserted error in giving plaintiff's Instruction No. P-3. We are of the opinion that plaintiff made out a case for the jury as submitted by the instruction, and that any errors in the instruction were not prejudicial under the facts of the case. At the outset and before discussing the defendants-appellants' contentions, we shall resort to the instruction for an explanation of the theory of plaintiff's case.
Plaintiff's Instruction No. P-3 hypothesized that plaintiff was riding as a guest in the truck; that the truck was crossing the tracks of defendant Wabash; that the truck was struck by a Wabash train operated by defendant Williams who was in the employ of defendant Wabash; that plaintiff was injured; and that plaintiff was in the exercise of ordinary care. The instruction continued, as follows,
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