Rosanbalm v. Thompson

• Decision Date: 27 January 1941
• Docket Number: No. 19787.,19787.
• Parties: ROSANBALM v. THOMPSON.
• Court: Missouri Court of Appeals

148 S.W.2d 830

ROSANBALM v. THOMPSON.

No. 19787.

Kansas City Court of Appeals. Missouri.

January 27, 1941.

Rehearing Denied March 6, 1941.

Appeal from Circuit Court, Johnson County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Action by John Rosanbalm, administrator of the estate of Herbert Rosanbalm, deceased, against Guy A. Thompson, trustee in bankruptcy of the Missouri Pacific Railroad Company, for death of plaintiff's intestate when automobile which plaintiff's intestate was driving was struck by defendant's train at a crossing. From a judgment for plaintiff, the defendant appeals.

Reversed and remanded.

Patterson, Chastain, Graves & Smith, of Kansas City, Thomas J. Cole, of St. Louis, and Lyman J. Bishop, of Butler, for appellant.

Rosenberg, Hargus & Koralchik, of Kansas City, for respondent.

CAMPBELL, Commissioner.

Herbert Rosanbalm was struck and killed by a westbound passenger train operated by the defendant trustee upon the main line track of the Missouri Pacific Railroad Company on February 13, 1938. His administrator brought this suit to recover for his death, obtained a judgment in the amount of $4,500, from which the defendant has appealed.

The place of accident was upon an intersection of Benton street and said main line track in the city of Pleasant Hill, Missouri. Main street, a north and south street, also intersects the main line track at a point 960 feet east of Benton street crossing, and there is no intersection between those streets.

The south end of Benton street is highway No. 58. The highway is adjacent to and parallels the railroad track for a considerable distance east of Benton street.

Mr. Heid testified that at the time involved, Herbert Rosanbalm, hereinafter called deceased, drove his automobile east on highway 58 and turned into Benton street and proceeded north toward the crossing going 10 to 15 miles an hour, did not slacken or increase his speed after he entered Benton street; that side curtains were on the automobile.

He further testified that he was driving his automobile west on highway 58; that when he was half way between Benton street and Main street he heard the engine sound the whistle, but whether the whistling was continued, he could not say; that the train "got even" with him when he was about 100 feet from the Benton street crossing. He also said he was 100 or 150 feet east of Benton street when the collision occurred.

Roy Reynolds, defendant's fireman, testified that from the time the engine was at or near the Main street crossing he was sitting on the fireman's seat on the left side of the engine and looking in the direction of Benton street; that the train was going 60 to 65 miles an hour until it entered Pleasant Hill; that the speed was reduced to about 40 miles per hour some distance east of Benton street; that he could not see the crossing until he was within 150 feet of it because the boiler of the engine obstructed his view and because of a curve in the track; that he did not see the automobile of the deceased prior to the accident, nor did he know the engine had struck the automobile until the engine was stopped a considerable distance west of the crossing, at which time the automobile was on the pilot "even on both sides"; that the whistle was sounded for the crossing and the automatic bell was ringing. In his direct examination this witness said:

"Q. Now, when you say there was a partial reduction in effect there, you mean that the brakes were already set and the air in the brakes? A. Yes, sir.

"Q. And under that situation, tell the jury whether or not any time would elapse before the train would slacken speed by further reduction? A. Well, to make further reduction, in my opinion, it would take something between three and four seconds, before it would be effective."

In his cross-examination he testified 4 or 5 seconds were required for the brakes to become "effective", and that the speed of the train would not "be affected until after that four or five seconds had elapsed."

Bert Hamilton testified that on the evening in question he was in his barn 300 or 400 feet north of the railroad track and about one-fourth of a mile east of Benton street crossing; that he heard the train "coming about a mile out"; that he did not "hear anything only the ordinary noise of a train running on the rails"; that he then went out of his barn "about 20 or 30 feet to the strainer room * * * and I was there about the strainer room when the train passed", that he did not hear either bell or whistle; that he first saw the train when it was west of the Benton street crossing. He testified in effect that the distance from the center of Highway 58 to the center of the main line track was 75 feet; that an automobile was parked in Benton street at the east edge of highway 58 and he and others then went east to near the Main street crossing, and that he could see the parked automobile "almost from the" latter crossing.

Artie Foot testified that he was about 125 feet from the Benton street crossing and that he did not hear a whistle for that crossing. He did not say whether the bell was or was not ringing.

Fred Dobbins testified he was on his porch resting about one-half mile north of the crossing; that he heard neither bell nor whistle. In his cross-examination he said he saw the train "come by but it never whistled at the crossing"; that he did not know Benton street, but that he did know where the accident happened and that he could see (evidently the crossing) from the porch where he was sitting.

William Rose testified he was about one-fourth of a mile from the crossing and that he did not hear either bell or whistle. There is nothing in the evidence of this witness showing that he was at the time aware the train approached Benton street.

Photographs of the main track at the place in question were introduced in evidence. They undoubtedly show the automobile which deceased was driving was within the plain view of the fireman during all the time deceased was travelling north on Benton street.

The witnesses above mentioned testified on behalf of the plaintiff. No witness was called by the defendant.

Error is assigned to the action of the court in refusing defendant's requested instruction in the nature of a demurrer to the evidence on the grounds (1) there was no proof of negligence after the deceased was in peril, and until that time defendant's operators were under no duty under the humanitarian rule; (2) the court judicially knows the automobile of the deceased could have been stopped within 15 to 20 feet; (3) that if the defendant's operator had seen the deceased, there was not time thereafter to have slackened the speed of the train; (4) that there was not time to slacken the speed of the train after deceased turned into Benton street and that if said operators were charged with notice that deceased was oblivious from the time he turned off the highway there was no time thereafter in which the whistle could have been sounded; (5) the verdict based on alleged failure to warn or failure to slacken speed is not supported by substantial evidence; (6) that plaintiff is bound by the testimony of Heid and the fireman to the effect the whistle was sounded and the bell was ringing, and bound by the testimony of the fireman that he could not see the crossing at a greater distance than 150 feet, and that the brake would not begin to act under 3 or 4 seconds after it was applied; (7) that the positive evidence of Heid and Reynolds "prevails over the negative testimony of witnesses who were at long distance, and plaintiff was not entitled to go to the jury on such negative testimony."

Was the evidence sufficient to allow the jury to find the defendant failed to ring the bell or sound the whistle?

The witness Hamilton testified in effect that when he was in his barn he heard the "ordinary noise of a train running on the rails" when the train was about a "mile out"; that presently the train passed within 300 to 400 feet of him. He did not see the train on either occasion. He knew of its presence and whereabouts only through the "ordinary noise" it made in going toward the crossing. Thus his attention was...