Smith v. Chicago, B. & Q. R. Co.

• Citation: 15 S.W.2d 794
• Decision Date: 11 February 1929
• Docket Number: No. 26853.,26853.
• Parties: SMITH v. CHICAGO, B. & Q. R. CO.
• Court: United States State Supreme Court of Missouri

15 S.W.2d 794

SMITH v. CHICAGO, B. & Q. R. CO.

No. 26853.

Supreme Court of Missouri, Division No. 1.

February 11, 1929.

Motion for Rehearing Overruled March 29, 1929.

Appeal from Circuit Court, De Kalb County; Guy B. Park, Judge.

Action by Nellie M. Smith, administratrix of the estate of James A. Smith, deceased, against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Luther Burns, of Topeka, Kan., and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

Pross T. Cross and Gerald Cross, both of Lathrop, for respondent.

ELLISON, C.

The plaintiff's deceased husband, the intestate, was a section foreman on the main line of the defendant Chicago, Burlington & Quincy Railroad Company running through the village of Chandler in Clay county, and used in interstate commerce. Under a leasing arrangement trains of the Rock Island Railroad are run over this line. While working on the track at a curve near Chandler about 3 o'clock in the afternoon of June 21, 1923, the deceased was struck and killed by a south-bound Rock Island passenger train. The plaintiff brought this suit in the circuit court of Caldwell county under the Federal Employers' Liability Act (45 USCA §§ 51-59). On defendant's application the venue was changed to De Kalb county, where a trial resulted in a verdict for plaintiff, which was set aside by the court as being against the weight of the evidence. On the second trial the verdict was for $8,000. From the judgment on that verdict the defendant has appealed.

The respondent submitted her case on only one charge of negligence, viz. that her intestate's fatal injuries were caused by running the train around the curve without sounding the whistle, in violation of the appellant railroad's operating rule No. 920. The sole assignment of error made by appellant is that its demurrer to the evidence should have been sustained because: (1) The rule was not applicable under the facts of this case; (2) the acts of the deceased were the sole proximate cause of his injuries. The rule is as follows: "Road crossing whistle must be sounded before passing around curves where the view is obscured, between the hours of 6:30 a. m. and 6:30 p. m."

There were five men in the section crew, counting the deceased. They were raising and filling in the track a short distance north of a highway crossing a few hundred yards above the railroad station at Chandler. At that point the railroad runs southerly on a long curve veering west. According to the testimony of appellant's civil engineer the curve begins "about 400 feet" north of the crossing, but a blueprint map drawn to scale by this same engineer and introduced in evidence by appellant shows the north point of the curve is 530 feet above the crossing, and we take this latter distance as correct for the purposes of the demurrer. The curve continues south of the crossing for at least 1,100 feet, which is as far as the map shows. North of the north end of the curve for more than 1,000 feet the track runs straight to a point where there are two semaphores.

Following the course of the main track and about 9 feet east thereof is a switch track which extends clear around the curve and even further north. A little above the highway crossing the roadbed runs through a cut. The embankments on each side with vegetation growing thereon were as much as 15 feet high at the highest point. There were also some trees along the sides of the right of way. The evidence does not show the conditions as to visibility south of the place of the accident, except, of course, the depot on the west side of the tracks.

The hotly contested issues of fact at the trial below were as to just where the men were working when the deceased was struck, how far the train could be seen from that place, and what the deceased was doing at the time. If we were passing on the weight of the evidence some of the testimony on both sides would be open to question because of prior contradictory statements and for other reasons; but, since the determination of such matters rarely comes within our province in cases at law, and a jury has twice passed on the issues of fact, the appellant rightly concedes in its brief we must take the testimony at its face value for the purposes of the demurrer. So we shall limit ourselves, in the main, to setting out the substance of the evidence.

The only eyewitnesses to the casualty were the four section men. Three of these testified for appellant and one for respondent. The evidence for appellant was that the train struck the deceased at a point on the main track 150 to 200 feet north of the highway crossing. The respondent's witness Kurfman fixed the distance at 75 or 80 feet and was corroborated in this by the testimony of a farmer named Archer who said he went to the scene immediately after the accident and that the intestate was lying within 75 feet of the crossing, and one of appellant's witnesses admitted the deceased fell just about where he was hit; i. e., that the train did not carry him forward.

The three section men who testified for appellant all said that just before the train passed the deceased was sitting on the west rail of the passing track facing west; that is, facing the main track where the men were at work. His head was bowed over resting on his arms as they lay across his knees, as if he were dozing. The three men heard the train whistle for the station, nearly a mile up the road, and as it drew near going 45 or 50 miles per hour they stepped aside; but the deceased apparently was not aware of its approach until it was close, when he jumped up in confusion and ran toward the main track; then, realizing he was heading directly into danger, he attempted to turn, but it was too late; the pilot beam of the locomotive struck him.

The respondent's witness Kurfman agreed the deceased had been sitting on the passing track rail, as stated by the other witnesses, but at both trials he declared before the train came the deceased arose from that position and went over to the main track, where he was sighting down a rail with his back to the north when the locomotive bore down on him from behind going 50 or 60 miles per hour. At the first trial his testimony was that the deceased had stepped over to the main track about a minute before the train came. At the second trial he said he heard the rumbling of the train and looked around and saw the deceased standing on the east rail of the main line, "and as I jumped and got out of the way, about that time the train hit Smith (the deceased)."

The train which struck the intestate was a regular train that did not stop at Chandler. It was running about 5 minutes late. The deceased had worked for the appellant about 5 years and was familiar with its rules, and presumably its train schedules. The engineer saw the section crew near the track, but neither he nor the fireman knew the deceased had been hit until they reached Kansas City. Their testimony was, therefore, of little value in direct explanation of the casualty. It was admitted by appellant the train did not whistle for the curve, and affirmatively shown the custom was not to do so; but the train crew all said the station whistle was sounded about a mile back and that the train whistled for the crossing. The whistling post for the crossing was up by the semaphores, closer to the crossing than where the whistling would have begun if the whistle had been sounded for the curve as directed in the rule. But the three section men and several other witnesses denied the crossing whistle was sounded; at least they did not hear it, and the latter witnesses did not hear the station whistle.

On the specific issue as to how much, or how far, a view of the train was obscured by the curve, the evidence was conflicting. The appellant conceded the view did not extend from one end of the curve to the other; but by the testimony of four witnesses it was shown a train could be seen for nearly 1,500 feet, clear up to the semaphores, from points on the main track 66 feet or more north of the highway crossing — and it will be recalled the respondent contended the deceased was 75 feet north of the crossing when struck. According to the testimony for respondent the range of view was much shorter. One of her two witnesses on the question said that to a person standing on the main track 75 feet north of the crossing a south-bound train would be hid from view until within 675 feet and the other witness fixed the distance at 500 to 600 feet. This shortest maximum view of 500 feet would therefore extend 575 feet north of the crossing, or 45 feet north of the north point of the curve, which was 530 feet north of the crossing, and if the...