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

• Decision Date: 08 November 1921
• Docket Number: No. 13299.,13299.
• Citation: 234 S.W. 1054,208 Mo. App. 316
• Court: Missouri Court of Appeals
• Parties: HOLTKAMP v. CHICAGO, B. & Q. R. CO.

234 S.W. 1054

208 Mo. App. 316

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

No. 13299.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Rehearing Denied December 5, 1921.

Appeal from Hannibal Court of Common Pleas; William T. Ragland, Judge.

Action by Mary T. Holtkamp against the Chicago, Burlington & Quincy Railroad Company. From judgment for plaintiff, defendant appeals. Reversed.

H. J. Nelson, of St. Joseph, Mahan, Smith & Mahan, of Hannibal, and M. G. Roberts, of St. Louis, for appellant.

Eby & Hulse and Berryman Henwood, all of Hannibal, for respondent.

BRUERE, C.

On the 3d day of April, 1917, Henry T. Holtkamp, deceased, was struck and killed by defendant's train, at a public street crossing, in the city of Hannibal, Mo. Plaintiff, his widow, brought this action to recover damages under the provisions of the compensatory death act.

The trial resulted in a judgment for plaintiff for $5,000, from which defendant appealed.

The negligence charged in the petition is running said train at a rate of speed in excess of that provided by the city ordinance, to wit, the rate of 30 miles per hour, while the ordinance provides a rate of 6 miles per hour.

The petition charges other grounds of negligence, but these need not be considered here, for the reason that they were abandoned by plaintiff; the case being submitted solely upon defendant's negligence in running its train in excess of the ordinance speed.

The answer of the defendant was a general denial, and a further plea that the death of the deceased was due solely to his negligence and carelessness in attempting to cross defendant's railroad track without looking or listening for the approach of trains on said track, when by looking he could have seen or listening he could have heard the approach of said train in time to have remained away from said track in a place of safety.

At the close of all the evidence in the case defendant interposed a demurrer to it, which the court overruled; proper exceptions being taken at the time.

The sole question raised by the appeal is whether or not the trial court should have directed a verdict in favor of the defendant, on the ground that the deceased was guilty of contributory negligence precluding plaintiff's right to recover.

The question under consideration necessitates a review of the evidence given at the trial. The negligence of the defendant in running its train in excess of the ordinance speed was established by the evidence.

The evidence further tended to prove the following facts: The accident occurred on a bright day at 3:30 o'clock, on the afternoon of April 3, 1917, at the crossing of defendant's railroad track over Maple avenue in the city of Hannibal, Mo. The defendant maintains four tracks on Collier street in said city. These tracks run east and west on and along Collier street. From 15 to 20 trains pass said crossing each day. Maple, Ledford, Lemon, and Draper are public streets in said city running north and south and intersect defendant's tracks. The east line of Ledford street is 314 feet west of the west line of Maple avenue, Lemon street is 886 feet west of Maple. Draper street is west of Lemon and about 1320 feet from Maple avenue. Arch street is the next street west of Draper, and Lindell street is the next street west of Arch. Ledford street connects with Collier street at the south line of Collier and at an angle of about 30 degrees; the west line of Ledford street extended being the west line of Collier street. Maple avenue at its intersection with Collier street does not extend south of Collier street. The traveled portion of Collier street is 15 feet wide and is located immediately south of defendant's track and parallel therewith. The Bluff City Shoe Company building is located on the southwest corner of Maple avenue and Collier street and fronts on the south side of Collier street. The Hannibal Car Wheel Company is located on the northwest corner of Maple avenue and Collier street. There is mentioned in the record a shed. This shed is located about 60 feet west of the west line of Ledford street and about 7 feet south of the continuation of the south line of Collier street. There is another shed located just west of Lemon street. This shed, according to the plat introduced in evidence, is 6 feet high and about 10 feet square. The railroad track runs straight and level from Maple avenue westwardly to a point west of Lemon street, a distance of over 900 feet.

The deceased at the time of the accident was driving a delivery truck for the Fletcher Tea Company of Hannibal. He was working for said concern in the capacity of delivery man, and had been so employed for four or five months just prior to his death. He was familiar with the railroad crossing over Maple avenue, as his work called him over the same about once every two weeks. The truck which deceased was driving was a Ford truck, with a covered body, with two glasses in the rear and glasses on each side opposite the seat. The chauffeur seat was located on the left-hand side.

On the day of the accident the deceased drove northeast on Ledford street to the intersection of Collier and Ledford streets, and then drove east along Collier street, and south of and parallel with defendant's railroad tracks, a distance of 330 feet to the intersection of Maple avenue and Collier street. He then turned north on Maple avenue and proceeded to drive across defendant's south or main track, in front of an on-coming eastbound passenger train running on said track, and was struck and killed. After striking the deceased the train, consisting of an engine and seven coaches, was slopped with the east coach standing slightly west of Maple avenue crossing.

B. F. Smiley, a civil engineer, and a witness for plaintiff, testified that he made personal observations of the surrounding property and premises at the point on the traveled way where Ledford street comes into Collier street, 20 feet south of the south rail of defendant's main line, and that, standing at said point, he could see a train approaching from the west on said track a distance of 300 feet, and that as he got closer to the track his view increased rapidly until he could see to Draper street a distance of over 1,000 feet. He further testified that after a traveler turned from Ledford street east on to Collier street there was nothing to obstruct the traveler's view of the railroad tracks to the west as far as Draper street or farther.

Mr. Fletcher, another witness for plaintiff, testified that he made some observations, at a point in the center of Ledford street and on the south line of Collier street, and that from that point a person seated in a truck similar to the one in which the deceased was riding could see a train approaching from the west on defendant's tracks a distance of 300 feet. The witness farther testified that, seated in said truck at the point indicated, he had an unobstructed view of defendant's track `Looking west to a point just past Lemon street. The witness stated that he estimated the distance between Ledford street and Lemon street to be 300 feet. The distance, according to the map from the point indicated to Lemon street is 550 feet. Witness said he made similar Observations after turning his car east on Collier street, and that from that point he had an uninterrupted view and could see defendant's track through the back glass of the truck a distance of 700 or 800 feet; that, looking from a point on Collier street in front of the Bluff City Shoe Factory, he could see defendant's tracks past Lemon street, between Arch and Lemon; that just after the accident he found deceased lying about 90 feet east of the Maple avenue crossing and about 15 feet north of the main or south track and a Little south of the truck.

Charles Medcalf, on behalf of the plaintiff, testified that at the time of the accident he was standing about 125 feet east of Maple avenue crossing and about 7 or 8 feet north of the main track; that he was talking to a friend when he heard a whistle close to the crossing and turned around and saw said truck just in the act of coming up on the track, turning, when the engine was about 40 or 50 feet from the crossing; that the train struck the hind wheel of the truck and hurled it 80 or 90 feet east; that the deceased was thrown out of the truck and rolled 15 or 20 feet beyond the truck and within 25 feet of where witness was standing; that when he first observed the train it was running 20 or 25 miles an hour.

Malcolm Jackson, a witness for plaintiff, testified that he was standing east of Maple avenue about 15 feet north of the south track. He further testified' as follows:

"Q. Tell the jury what you saw? A. Well, he started to the railroad; there was a train whistled for the, at the foundry there, and he run up over the railroad crossing there, kindy slowed up; as he got about halfway of the railroad crossing, why, the train hit him middle ways.

"Q. Now, how close was the train down to Maple avenue crossing when you first saw it? A. It; did not lack but little ways of being there.

"Q. About how many feet? A. Twenty or 30 feet, something like that.

"Q. Was it there when it whistled? A. Yes, sir.

"Q. Did you hear it whistle before that? A. Yes; it whistled up at the other crossing."

Cross-examination:

"Q. About how far up the track, or up the road rather, was the automobile when you first saw it? A. Well, getting little past the shoe factory there, about up there to that gap or that gate there, that fence.

"Q. How far in feet would you say that would be from the crossing up the road from Maple avenue? A. I judge about 30 feet.

"Q. And the train was some 30 or 40 feet you say when you saw that? A. Yes, sir.

"Court: Q. Did you see the train when you first saw the automobile? A. Yes, sir.

"Q. When you saw the automobile 30 feet from the crossing, where was the train? A. Right at the wheel foundry there, and time he hit the railroad...