Hutchison v. Thompson

• Decision Date: 14 December 1942
• Docket Number: No. 20213.,20213.
• Citation: 167 S.W.2d 96
• Parties: HUTCHISON v. THOMPSON.
• Court: Missouri Court of Appeals

167 S.W.2d 96

HUTCHISON v. THOMPSON.

No. 20213.

Kansas City Court of Appeals. Missouri.

December 14, 1942.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State Reports."

Action by Virgie Hutchison against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, for the death of the plaintiff's husband resulting from a collision between a truck and a train. From an adverse judgment, the defendant appeals.

Reversed.

Thomas J. Cole, of St. Louis, James A. Potter, of Jefferson City, W. W. Blain, of Sedalia, and Leon P. Embry, of California, for appellant.

Fred Wesner, of Sedalia, and Price Wickersham and Guy Green, Jr., both of Kansas City, for respondent.

BOYER, Commissioner.

Plaintiff sued to recover a statutory penalty for the death of her husband, James Edgar Hutchison, alleged to have been caused by the fault of defendant. The petition charged both primary and humanitarian negligence. The answer was a general denial and a plea of contributory negligence. There was no instruction requested or given authorizing a recovery on primary negligence and the case was submitted by two instructions authorizing recovery under the humanitarian rule only; one upon a finding, with other facts, of the failure of defendant to slacken the speed of the train, and the other upon a finding that defendant failed to give emergency warnings. The jury found for plaintiff and assessed her damages at $5,000. Judgment followed the verdict. Defendant duly appealed and assigns error of the court in refusing defendant's requested instruction in the nature of a demurrer to all the evidence; and that the court erred in giving plaintiff's instructions and in refusing an instruction requested by defendant.

On March 17, 1939, there was a triple tragedy at a railroad grade crossing when plaintiff's husband and two other men in a Ford A truck attempted to cross the railway track. An eight-coach passenger train struck the truck and the three occupants were killed. The site of this collision was known as the Elkhorn crossing. It was approximately one-half mile west of the corporate limits of the City of California. The railroad runs in a general easterly and westerly direction. The train was east bound and the truck south bound. A quarter of a mile or more west of the crossing the tracks emerge from a curve and extend in a straight line and in a southeasterly direction across and beyond the point of the collision. The Elkhorn crossing is made by a country road extending north and south. It is a graveled road to a width of about 15 feet. On the north side of the main line is a spur track parallel to it and 29½ feet from it. North of the spur track were three bulk oil stations, two of them being east of the crossing, and one on the west side of the Elkhorn graveled road; between the main track and the spur track, a graveled roadway leads from the Elkhorn Road easterly to one of the bulk stations. North of the bulk stations is another graveled road which extends westerly from the City of California and crosses the Elkhorn Road. South of this road and west of the Elkhorn Road is located the Missouri Farm Association oil bulk plant building, 24 feet long and 18 feet wide. The west side of Elkhorn Road curves or flares to the west in front of this building so that trucks may load and unload at the entrance to the bulk station, and the road is 36 feet wide at that place. At a point 27 feet southeast of the southeast corner of the building stood a telephone or other service pole. It is 55 feet at right angles from this pole to the center of the main line track. The right-hand angle made by the intersection of the Elkhorn Road, going south, and the railroad tracks, is indicated by the fact that it is 110 feet from this pole along the Elkhorn Road to the middle of the main line track, and 90 feet from there westerly along the center of the main line to a point 55 feet from the pole. It is described in evidence as forming an acute angle of about 45°. U. S. Highway 50 is on the south side of the railroad tracks which it parallels at that place, it being 81 feet from the center of the track to the center of the highway. Approaching the crossing from the north on the Elkhorn Road the road rises 1.9 feet from a point 75 feet north of the spur track to the spur track, and from the spur to the main line, a distance of 42 feet, it rises 2.15 feet, and from the main line to Highway 50, there is a descent of 4.35 feet to Highway 50 over a distance by road of 114 feet. The road is further described as being rather rough and to approach the crossing practically at a continuing ascent without level places.

The testimony of a civil engineer shows that at a point 88 feet north of the main track and on the west side of the graveled road, and 53 feet north of the track at right angles, a line drawn westerly passing the south side of the pole and the bulk plant building touched the main line of the railroad without interference 1,278 feet to the west, and that block signals located there were plainly visible.

A former claim agent of defendant identified certain pictures which were taken the day after the collision showing scenes of the crossing and the adjacent physical surroundings. One of the pictures was taken from a point in the center of Elkhorn Road 75 feet north of the main track. The camera was on a tripod 4½ or 5 feet high facing west. This witness testified that he measured the distance from the crossing along the main track to the west a distance of 2,180 feet. This point was in the curve of the railroad, and from there he could distinguish a man and the camera, but he could do so only from the fact that he knew they were there; that he could not have recognized them at that distance if he had not known that they were there. He also testified on cross examination that there was a flat place in the gravel road south of the spur track "for some distance," and that the approach to the spur track and to the main track was otherwise on an ascending grade.

The truck in which the three men were riding at the time of the collision belonged to the city of California and was used in its street department service. It was model 1929 or 1930. The men in the truck were Henry Knorp, his son, Harry Knorp, and Mr. Hutchison, plaintiff's husband. Henry Knorp was street commissioner for California, and the other two men were employed by him for the city to do such work as he assigned to them.

Raymond Ehlert operated the M. F. A. bulk plant which was located as above described north of the spur track, west of and adjacent to the Elkhorn Road, and south of the east and west gravel road. At the time of the casualty and about four o'clock p. m., on a dry, clear day, he had his truck at the loading dock of the bulk station headed north and loaded ready to make a delivery out in the county. At this time the city Ford truck with the three men in it approached from the east on the gravel road north of the railroad and turned south on the Elkhorn Road and stopped nearby on the west side of the road with the front of the car near the pole heretofore mentioned. In the cab of the truck was one seat occupied by the three men; Harry Knorp was at the wheel, Henry Knorp next to him, and Mr. Hutchison was on the right side. Back of the cab of the truck was an open bed with low sides. The men did not get out of the truck. Mr. Ehlert testified that he talked to them for a period of about ten minutes through the right-hand window of the cab which was open; that there was some discussion about buying kerosene for the city, and general conversation. After that Ehlert got in his truck, drove north a short distance, turned around and went back south past the left side of the parked truck and approached the crossing on Elkhorn Road at about 5 to 10 miles per hour — nearer 10 miles; when he passed the truck it was still standing and he could not say whether the motor was running; about the time he crossed the spur track he noticed the train approaching "a quarter of a mile or better" to the west; he went on across to Highway 50, turned west and went about 200 or 250 feet when he looked back toward the crossing through the corner of his rear glass and saw the city truck coming up toward the crossing; he did not notice the train; he started slowing down, pulled partially onto the shoulder of the road and stopped; he stepped out onto the right running board with his right foot and looking back at an angle saw the truck pulling up toward the crossing as the train went between him and it; "that is all I remember seeing of it." He further stated that he never formed any opinion as to the speed of the truck as he saw it approaching the crossing, and when he last saw the truck before his view was shut off, he could not tell whether it was in motion or not. He stated there was nothing the matter with his hearing or vision; he did not at any time notice or hear a whistle of the train, and he did not know that the train had hit the truck, and went on his journey, and first learned of the casualty when he returned.

On cross examination, and in reference to the character of Elkhorn Road, he stated that there was a slight incline up to the spur, "then its level for a short distance between the spur and main line, then it has another incline up to the main line and over the main line and down grade to the highway"; that the spur track was level and the total level space would be about 10 feet, and that he believed that would include the spur track. In reference to sight distances he testified that the occupants of the Ford truck, at the place where it stopped near the pole, "couldn't see very far, about a couple of hundred feet probably." He stated that at about 25 feet past that point south there would be a clear view down the track for a considerable distance, or that from a point 75 to 85 feet north of the main track figured down the road "the...