Kinney v. Chicago Great Western R. Co.

• Decision Date: 31 January 1927
• Docket Number: No. 7283.,7283.
• Citation: 17 F.2d 708
• Parties: KINNEY v. CHICAGO GREAT WESTERN R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

17 F.2d 708 (1927)

KINNEY v. CHICAGO GREAT WESTERN R. CO.

No. 7283.

Circuit Court of Appeals, Eighth Circuit.

January 31, 1927.

Alfred Longley, of Waterloo, Iowa (R. J. O'Brien, of Independence, Iowa, and Edwards, Longley, Ransier & Harris, of Waterloo, Iowa, on the brief), for plaintiff in error.

Clifford V. Cox, of Des Moines, Iowa (Donald Evans and William F. Riley, both of Des Moines, Iowa, on the brief), for defendant in error.

Before BOOTH, Circuit Judge, and KENNAMER, District Judge.

KENNAMER, District Judge.

Plaintiff in error sought the recovery of damages from the defendant, for injuries received at a crossing of defendant's tracks, in the town of Eurora, Iowa, by reason of a collision of a locomotive and plaintiff's truck. At the close of plaintiff's testimony the trial court directed a verdict for the defendant, and the only error assigned and presented upon this appeal is the direction of the verdict.

The evidence adduced by the plaintiff is that, on the day of the accident, plaintiff, accompanied by a Mr. Berryman, who was seated beside him, was driving a Ford truck with doors on each side of the cab; that he sought to cross defendant's tracks, which run east and west, traveling in a southerly direction; that plaintiff and Berryman were engaged in conversation, but as they approached the crossing were driving very slowly, and at the rate of from 4 to 5 miles per hour. The first plaintiff knew of an approaching train upon reaching the crossing was the warning given by two small children, who waved their hands and shouted. This warning induced Mr. Berryman to jump from the truck, but plaintiff endeavored to cross the tracks in his truck. He succeeded in getting the front wheels of the truck across the rail when the locomotive struck the Ford and pushed it along the track, all during which time plaintiff was attempting to get out of the cab. The testimony further discloses that plaintiff was injured as a result of the accident.

The engineer in control of defendant's locomotive at the time of the collision testified that he was proceeding in an easterly direction, at a rate of speed of from 4 to 5 miles per hour; that the speed of the locomotive had been retarded at the station to receive orders, which were received by the fireman; that as the locomotive passed over the crossing the fireman was standing at his left and facing him, reading the orders; that at some distance east of the crossing, approximately 50 feet, he perceived a jar and, slowing down the speed at which the locomotive was proceeding, looked out of the side of the cab window in order to see the front of the engine. Seeing something unusual, he immediately applied the emergency air, and did everything within his power to stop the locomotive as quickly as possible, although he did not know with what he had collided. There was evidence to the effect that plaintiff's body was lying about 174 feet from the point where the truck was struck, and that an engine equipped as the one in the collision, having proper brakes, could have been stopped within a space of from 10 to 20 feet, if running at the rate of from 4 to 5 miles per hour.

Portions of the opening statement to the jury made by counsel for plaintiff should be noted, in which, he said: "The evidence will show, it might as well be stated at one time as another, that after Mr. Kinney got out onto the first of the four tracks which he had to cross (the track on which he was struck being the fourth as he went from the north to the south) the locomotive was in plain sight. There is no reason why he should not have seen that locomotive, but he didn't see it and drove in front of it. He had a friend in the car with him, and he didn't...