Kansas City Southern Ry. Co. v. Ray
| Decision Date | 20 February 1940 |
| Docket Number | No. 11551.,11551. |
| Parties | KANSAS CITY SOUTHERN RY. CO. v. RAY. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph R. Brown, of Fort Smith, Ark. (James B. McDonough, of Fort Smith, Ark., on the brief), for appellant.
Ben Shaver, of Texarkana, Ark. (James D. Shaver, of Texarkana, Ark., and James H. Williams, of Ashdown, Ark., on the brief), for appellee.
Before WOODROUGH and THOMAS, Circuit Judges, and NORDBYE, District Judge.
This suit arises out of a railroad crossing accident in which the plaintiff's intestate was killed. She recovered judgment as Administratrix against the railroad company in the sum of $2,000, and the railroad company appeals.
The defendant's railroad runs in a southerly direction along the western border of Arkansas, from Mena, Arkansas, to Texarkana, and into the state of Texas, and U. S. Highway No. 71 which runs generally in a north and south course crosses the track at grade about three-fourths of a mile north of the town of Wickes, Polk County, Arkansas. It appears that on the morning of August 12, 1938, the deceased was driving a one-and-a-half ton trailer type International truck loaded with 2,266 feet of green pine lumber weighing about 12,463 pounds in a northerly direction upon Highway No. 71, intending to pass over the railroad crossing. He was familiar with the highway and the railroad crossing on the route. For a distance of about three-fourths of a mile the highway ran about parallel with defendant's track and about 400 feet to the east of it, and then turned on a right angle and on a slightly descending grade which dropped 3.3 feet in 100 horizontal feet.
At the crossing the railroad right of way was 100 feet wide and although there were some weeds growing at the side of the road there was no testimony that a southbound train would not be visible from a truck on the highway approaching the crossing from the east for a considerable distance before reaching the crossing.
The deceased made the turn in the highway and drove west towards the crossing until he came to a distance of within 50 or 60 feet of it. At that point the tire marks on the surface of the road, which was gravelled, showed that he had applied his brakes and had swerved to his left (south), but the right front wheel of his truck crossed the first rail of the track some 20 to 30 feet south of the crossing and had just about reached the second rail when the defendant's southbound passenger train collided with the truck cab and killed the driver instantly. The truck cab was crushed and carried along the track about 50 yards. The semi-trailer was disconnected from the cab and left near the place of collision. While it appeared from the evidence that the truck itself was equipped with brakes which were in good condition, the trailer which bore the 12,463 pound load of lumber was without brakes. The court instructed the jury that the Arkansas law required the trailer to be equipped with brakes (Pope's Digest, Sec. 6784) and that if the collision was due solely and proximately to the fact that it was not so equipped there could be no recovery.
There was no eye witness to the occurrence except the fireman, who was in the engine cab keeping a lookout on the left hand or east side of the train as it proceeded south towards the crossing. The engineer was on the west or right hand side of the cab and his view to the east was cut off by the boiler of the engine. The fireman testified that he saw the truck and trailer when the train was about 400 feet away from the crossing but he did not anticipate any danger as the truck was going slow in the center of the highway and he thought it was going to stop. But when the train had reached a distance of about 200 feet from the crossing, the witness noticed the truck was in distress and was getting off the highway in order to try to stop, and although it was going at a low rate of speed, it appeared to the witness that it was not...
To continue reading
Request your trial
-
Hendon v. Kurn
... ... Pac. v. Moore, 138 S.W.2d 384; ... Mo. Pac. v. Baldwin, 117 F.2d 510; Kansas City ... Southern v. Ray, 109 F.2d 708. (2) This suit is founded ... upon a foreign statute ... ...
-
Overstreet v. MISSOURI PACIFIC RAILROAD COMPANY
...to stop the locomotive before striking the automobile. The Court of Appeals for the Eighth Circuit, in Kansas City So. Ry. Co. v. Ray, 1940, 109 F.2d 708, at page 710, reviewed and considered the problems arising in the instant case, and "The train was giving warning of its approach at its ......
-
Missouri Pac. R. Co. v. Baldwin
...support the judgment for the appellee. We had occasion to examine the Arkansas railroad crossing accident cases in Kansas City Southern R. Co. v. Ray, 8 Cir., 109 F.2d 708, but on this appeal we are bound to notice additional relevant decisions of the state court handed down since the trial......
-
Louisiana & Arkansas Ry. Co. v. Smith
...in view of the prevailing facts and circumstances, and the result must be tested by accepted principles of law." Kansas City Southern Ry. Co. v. Ray, 8 Cir., 109 F.2d 708. While the result of the cases cited to us may differ, yet examination of them would seem to compel the conclusion that ......