Lepchenski v. Mobile & O. R. Co.

• Decision Date: 31 December 1932
• Docket Number: No. 29616.,29616.
• Citation: 59 S.W.2d 610
• Parties: LEPCHENSKI v. MOBILE & O. R. CO.
• Court: Missouri Supreme Court

59 S.W.2d 610

LEPCHENSKI v. MOBILE & O. R. CO.

No. 29616.

Supreme Court of Missouri, Division No. 2.

December 31, 1932.

Motion for Rehearing Overruled March 3, 1933.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by William Lepchenski against Mobile & Ohio Railroad Company. From judgment for plaintiff, defendant appeals.

Affirmed on condition, otherwise reversed and remanded.

R. P. & C. B. Williams, of St. Louis (Carl Fox, of St. Louis, of counsel), for appellant.

Douglass & Inman and Allen, Moser & Marsalek, all of St. Louis, for respondent.

HENWOOD, Judge.

This is an action, under the Federal Employers' Liability Act (45 USCA §§ 51-59), for damages arising out of personal injuries received by plaintiff while in the employ of defendant. The trial resulted in a verdict for plaintiff in the sum of $20,000. The trial court ordered a remittitur of $8,000, and, upon compliance with that order by plaintiff, set aside the original judgment and entered a new judgment for plaintiff in the sum of $12,000 and overruled defendant's motions for a new trial and in arrest of judgment. Defendant then appealed in due course.

Undisputed Facts.

Plaintiff was employed by defendant off and on for more than thirty years as a section hand on a section of defendant's main line track extending four miles north and two miles south of the town of Berkley, Ky. Defendant operated trains in interstate commerce over this part of its main line track, and both the plaintiff and defendant were engaged in interstate commerce at the time plaintiff was injured. The crew of which plaintiff was a member used a motorcar propelled by a gasoline engine in traveling over this section of the track. Going north from Berkley for about one mile the track runs in a reverse curve, first to the northwest and then to the northeast, through deep cuts and across two trestles. The second trestle is about 100 feet long and about 35 feet above the ground at the highest point. The curve to the northeast begins about 200 feet north of this trestle and continues, in a deep cut through a hill, for about 800 or 900 feet. About 200 feet north of the north end of this curve is a station whistling board, one mile from Berkley. About a half or three-quarters of a mile north of this station whistling board is Gamble crossing, a road crossing. About 7:30 o'clock in the morning of April 1, 1927, the section crew, composed of the foreman, William Brock, and seven other men, including plaintiff, left Berkley on the motorcar and started to Laketon, four miles north of Berkley, to lower a boiler at the pumping station there. Defendant's southbound passenger train No. 15, due at Berkley at 4:30 a. m., had not passed Berkley when the section crew started north from Berkley. They did not know this when they left Berkley. The station agent at Berkley was not expected to report for duty until 8 a. m., and there were no telephones in Berkley. As the motorcar was proceeding north, at a point about 10 or 12 feet from the south end of the second trestle, defendant's south-bound passenger train No. 15 came into view, around the curve and out of the deep cut through the hill, about 390 feet north of the north end of the trestle, running at a high rate of speed. At that instant plaintiff jumped off of the motorcar, and in so doing received the injuries herein complained of. Some of the other section hands jumped off of the motorcar at that time, and the others remained on the motorcar as it was driven at increased speed across the trestle in an attempt to reach a vantage point for escape at the north end of the trestle, where they did escape by jumping from the motorcar immediately before it collided with the on-coming train. Brock, the foreman, stayed on the motorcar and was killed in the collision. The hill or high embankment on the east side of the curve in the track obstructed the view of the train crew as the train moved south and the view of the section crew as the motorcar moved north. The collision occurred at 7:42 a. m., about three-quarters of a mile from Berkley.

The Pleadings.

While plaintiff's petition contains other specifications of negligence, the case was submitted to the jury only on the alleged negligence of defendant "in failing to sound the whistle of the locomotive of said train when approaching said curve and at intervals while rounding said curve or give a timely and adequate warning of the approach of said train around the curve as was the rule and custom of defendant to do in running its trains around said curve at the time of and long prior to the plaintiff's injury."

Defendant's answer consists of a general denial of the allegations of the petition, a plea of assumption of risk, and a further plea that plaintiff's injuries were caused solely by his own negligence in permitting himself "to be driven in said motor car at said time and place at an excessive and negligent rate of speed and failed to take precautions to have and keep the said motor car under control and moving at such a rate of speed that the same could be slowed down or stopped upon the first appearance of danger."

Plaintiff's reply is a general denial of the allegations of the answer.

Plaintiff's Evidence.

Plaintiff testified: "There was nothing said about train No. 15 by any member of the crew when we started north on that morning. I was always watching, looking and listening for trains before we got into these cuts, and we just run along and as we come out of this first long cut and crossed this bridge (the first trestle), and along this second curve we were just running along slowly, between ten and twelve miles (per hour). As we run out of the cut, a few feet before we got on the bridge (the second trestle), I looked around at the head of the car and saw the engine and says, `Look out, boys,' and I jumped off. I jumped off right at the south end of the trestle. I went off a bank seven or eight feet high. I didn't know anything after I jumped, just went like a barrel turned loose down a hill. I heard no whistle whatever prior to the time I saw the train coming. I was listening and looking when we approached that trestle. The sun was shining, but there was a little wind that morning coming from the southwest. I would say, having in mind the amount of wind and the noise made by the motor car at the time of the accident and the condition of the track and the curves and hills at that place, I sort of believe a man could hear a whistle on that train while on that motor car a quarter of a mile away. I could hear a train blow a whistle on that morning, considering the noise of the motor and the obstructions of the sounds from the blowing wind and the grinding of the rails, a quarter of a mile away. I believe I could have heard it if it had whistled at the whistling board. I had on other occasions before this noticed freight and passenger trains going along that track and past that curve and trestle. Some whistle in the curve and some whistle before they got to the curve. I have noticed that all the time that I have been around the railroad track and when I was around in there and hear them whistling."

The deposition of Edgar Hayden, another member of the section crew, was taken and admitted in evidence on behalf of plaintiff. His testimony was substantially the same as that of plaintiff as to what happened at the time of the collision and immediately before. He further testified: "Prior to the time that I saw the train which collided with the motor car I had not heard any whistle or bell sounded by the train. We listen for trains when we start around a curve. We always listen. When it was time for a train it was our custom and practice always to stop. When we didn't know a train was due we generally coast on. It (the motor car) coasted around there just before we came to this bridge (the second trestle). The motor car makes very little noise when coasting or idling. When we got right close to the bridge (the second trestle) we put the gas on and got across and shut it off again. Under the conditions existing at the time of the accident I ought to have heard him (the engine whistle) a quarter of a mile away. There were no other means or method provided at the time the accident happened other than the whistling of the engine whereby the section men could know when the trains were approaching. We saw the train as soon as it was possible to see it, in view of the hill and curve at that place."

Henry Henderson and William Collier testified that they saw the train about a quarter of a mile north of Gamble crossing and heard it whistle for that crossing, but did not hear it whistle again until after the collision. Henderson further testified that the train was running at the rate of sixty miles an hour when he saw it.

Bud Perry testified: "Saw the train, heard it whistle and looked up and it was coming over the Gamble crossing. Continued to watch it on down to the time of the accident. Saw the hind end of the train when it stopped after the collision. From the time I heard the train whistle north of the Gamble crossing I noticed two short whistles just before they hit the motor car. Observed the speed of that passenger train as I saw it coming south before the accident and would judge from the time I saw it on down to the place of the accident it was running between fifty and sixty miles an hour."

Elzie Hicks, a resident of Berkley, was examined as follows:

Direct examination:

"Q. Mr. Hicks, have you been around the vicinity of that trestle on other occasions prior to the time of the accident? A. Yes, sir.

"Q. About how often would you be around there? A. Well, I was around there every once in awhile.

"Q. Did you observe trains passing through those trestles and around those curves? A. Yes, sir.

"Q. Did you observe what they did with reference to whistling in the vicinity of that trestle and curve? A. Yes, sir.

"Q. What did they do with reference to this...