Kutchma v. Atchison, T. & SF Ry. Co.

• Decision Date: 23 November 1927
• Docket Number: 7866.,No. 7865,7865
• Citation: 23 F.2d 183
• Parties: KUTCHMA v. ATCHISON, T. & S. F. RY. CO. HASKELL v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

23 F.2d 183 (1927)

KUTCHMA v. ATCHISON, T. & S. F. RY. CO.

HASKELL v. SAME.

Nos. 7865, 7866.

Circuit Court of Appeals, Eighth Circuit.

November 23, 1927.

Leon H. Snyder, of Colorado Springs, Colo., and Kenaz Huffman, of Denver, Colo. (Frank E. Gove and John H. Schultz, both of Denver, Colo., on the brief), for plaintiffs in error.

Erl H. Ellis, of Denver, Colo. (E. E. McInnis, of Oklahoma City, Okl., on the brief), for defendant in error.

Before LEWIS, Circuit Judge, and POLLOCK LOCK and SCOTT, District Judges.

LEWIS, Circuit Judge.

These actions were brought to recover damages for personal injuries to the two plaintiffs inflicted at a grade crossing by collision of defendant's train with a motor truck in which they were riding. The cases were consolidated for trial. The court after each side had introduced its proof directed the jury to return verdicts in favor of defendant, on the ground that the contributory negligence of plaintiffs plead in the answer contributed directly to the injuries to them, and they have brought the record here on writs of error to review that ruling, complaining that it was error.

The crossing was at the Pikeview coal mine a few miles north of Colorado Springs. The railroad runs north and south and there is a public highway along the railway on its east side. From this highway those going to the mine cross first the main line of the railway and then four switch tracks leading to the mine, which is on the west side of the railway. Returning from the mine to the highway the switch tracks are crossed first, of course, then the main track. In the forenoon of December 15, 1925, plaintiffs, who were experienced coal miners, walked out to the mine from Colorado Springs to obtain employment. Their services were not needed. In going out they did not cross the tracks on the traveled way. While they were at the mine John Kessler's motor truck was loaded with coal at the mine tipple, and being ready to go he invited the plaintiffs to ride with him. They got in, all sitting side by side on the one seat, — Kessler on the left, Kutchma on the right, and Haskell between them. There was a cab or hood over the seat with curtained doors having isinglass windows in them. They started on the traveled way over the crossing to the east and passed safely over the four switch tracks, but just as the motor truck reached the main track defendant's train coming from the north struck it, dragged it several hundred feet and both plaintiffs were seriously and permanently injured and crippled. As one starts to the east over the crossing the four switch tracks and the main track are in plain view and there is a plain danger sign of warning at the crossing.

Plaintiffs alleged in their complaints that the crossing was a dangerous one, that box cars stood on the side tracks, that the tipple, which stood 322½ feet north of the crossing, extended over the side tracks and near to the main track, obstructing the view, that defendant was negligent in not providing signals or other means of warning travelers of the approach of trains, that on this occasion the whistle and bell on the engine of the approaching train were not sounded, and that the train was running at high speed. They testified that they did not see the danger sign, were not familiar with the crossing, had never been there before; that when they started over the switch tracks the view was obstructed by box cars on some of them, but they looked for approaching cars or trains, Haskell looking most of the time to the south and Kutchma on his side to the north, and they did not see or hear the train until it was right on them; that they did not hear a bell or whistle until an instant before the collision. Other witnesses corroborated them, — that they did not hear the engine whistle or the bell until just before the crash, when the whistle gave two short blasts. The engineer, fireman and an express messenger on the train testified that the engine whistled for the crossing when it was 900 to 1,000 feet away, that the bell was then set ringing automatically and continued to ring until the train stopped after the collision. Mr. Shoemaker, who was in a bunk house a little northeast of the crossing and about 100 yards east of the highway on the east side of the main line, testified that he heard the train whistle for the crossing while he was washing his hands, it gave two long and two short blasts, that when he heard it he took the towel and faced the window and was sitting there looking out of the window when the engine came into view, that the engine then gave a very shrill warning whistle just before the collision. He did not hear the bell, but after the engine came in view he could see the bell in motion. When he first saw the engine it was due west of him and a little south of the tipple. The plaintiffs and their witnesses estimated the speed of the train at 50 to 60 miles per hour, while those for defendant at 30 to 40 miles per hour. The train men testified that to be the usual speed over that track. Some of the plaintiffs' witnesses who testified they did not hear the whistle for the crossing or the bell were standing not far from the tipple, and it made quite a bit of noise. On the proof it may be seriously questioned whether the plaintiffs sustained the burden of showing any negligence at all on the...