Harmon v. Thompson

• Decision Date: 05 December 1949
• Docket Number: No. 21210,21210
• Citation: 226 S.W.2d 102
• Parties: HARMON v. THOMPSON.
• Court: Missouri Court of Appeals

Page 102

226 S.W.2d 102

HARMON v. THOMPSON.

No. 21210.

Kansas City Court of Appeals, Missouri.

Dec. 5, 1949.

E. G. Nahler, St. Louis, Thomas E. Deacy, Kansas City, Haysler A. Poague, Clinton, Milligan, Kimberly & Deacy, Kansas City, Poague, Poague & Brock, Clinton, for appellant.

Charles A. Calvird, Clinton, L. M. Crouch, Jr., Harrisonville, E. E. Thompson, Kansas City, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for respondent.

SPERRY, Commissioner.

This is a suit by a widow for the statutory penalty against defendant railroad because of the death of her husband, Floyd W. Harmon, as a result of a collision between deceased's truck and defendant's train. Submission was on the humanitarian theory. There was a verdict for plaintiff for $5000. Defendant appeals. The sole question presented is that of the sufficiency of the evidence to make a submissible case.

Deceased's deposition had been taken in a suit filed by him, and it was read in evidence. He testified to the effect that: The collision occurred in Billings, Missouri, at a point where Highway 14 intersects defendant's main line track. The highway runs north-south, and the railroad line east-west. It was a clear, sunshiny day, and the roadway was dry. Deceased was operating a tractor-trailer, proceeding southward. The overall length of the outfit was 35 feet. Its gross loaded weight was 39 tons. The tractor had six speeds forward and one in reverse. The brakes were in good condition. The tractor was in low gear but the axle was in second gear. He observed the railroad crossing sign from a point 150 feet north, where he stopped at a filling station. The road was steadily up-grade from this point to the main line crossing, rising about 10 feet. Deceased was a former railroad switchman of many years experience, and he was an experienced truck operator. He knew that trains at high speed might be passing at any moment, from either direction, on the main line. There was a passing track north of the main line, the south rail of which was about 9 feet, 6 inches north of the north rail of the main line. When he was 75 feet north of it deceased observed the passing track and, beyond it, the main line. His speed, from the time he first saw the approaching train, which was when his front wheels were at the north rail of the passing track, was 8, not over 10 miles per hour; it wouldn't travel any faster in that gear. He 'let up' on the gas, to decide whether to go on or to stop, and the speed immediately 'fell off' 2 miles per hour. He shifted the axle to low and tried to increase speed but, instead, the speed continued to decrease until the moment of the collision, at which time it was 3 miles per hour, barely moving. The engine struck the trailer at a point from 10 to 14 feet back of its front. When he first saw the train it was up at the station. Its speed was better than 30 miles per hour, and it was not decreased until the collision occurred. He stated that when the collision occurred the train line was broken and all of the brakes went on.

There was a shed a few feet west of the crossing, north of the passing track, which blocked the view of a train from the west until one reached a point some 10 feet north of the passing track. It was 431 feet west, from the west edge of the crossing, to the center line of a water tower located on the south side of the main line. It was 480 feet west, from the west edge of the crossing, to the east edge of the Washington Street crossing. It was about 600 feet west, from the west edge of the crossing to the station house, located to the south of the main line. The train was a troop train, consisting of 2 cook cars, 12 pullmans, and 22 freight cars, and was 2000 feet in length. It was traveling east, and was pulled by a 4500 engine, the boiler of which was at least 60 feet in length. It was upgrade from west of the station to a point between the station and the place of collision. From there eastward the track was downgrade.

Plaintiff introduced evidence to the effect that the speed of the train was 36 miles per hour. Deceased stated that its speed was more than 30 miles. Members of the train crew stated the speed to be 35 miles per hour. Therefore the evidence indicates the speed to have been at least 35 miles per hour.

Plaintiff's witness Wilson, a retired engineer formerly employed by defendant, testified to the effect that a train of this type, traveling at a speed of 35 miles per hour, under conditions there existing, could have been brought to a stop at the time and place where the collision occurred, within from 450 to 500 feet, after an emergency arose; that he had made an emergency stop with a train, for this same crossing, and was basing his judgment on that experience as well as on his general knowledge and experience as an engineer; that the speed could be reduced 5 miles per hour in the first 100 feet, an additional 8 miles in the second 100, an additional 10 in the third 100 and would stop in another 125 or 150 feet.

Plaintiff also offered the testimony of Mr. Stanley, a retired Rock Island engineer. He gave it as his opinion that a train of the character and consist of the one here involved, traveling at 35 miles per hour, under the conditions obtaining at the time and place of the collision, could have been brought to a stop within a distance of 525 feet after the emergency arose, including the time for reaction of the fireman and engineer and for the brakes to set. He said the speed could be retarded 2 miles per hour in the first 100 feet; an additional 4 miles in the second 100 feet; an additional 6 miles during the next 100 feet.

Plaintiff's witness, Ebert, testified to the effect that he was clerking in a grocery store at the time the collision occurred; that the store was located about 40 feet south and east of the depot, facing Washington Street; that he saw the collision through the glass front of the store; that when he first saw the engine its front end was a little past the water tower; that a second later he looked toward the crossing and the tractor was practically over the track; that the speed of the train was 30 to 35 miles per hour. On cross-examination he stated that when he first...