Union Pac. R. Co. v. Burnham, 2363.

• Decision Date: 24 December 1941
• Docket Number: No. 2363.,2363.
• Parties: UNION PAC. R. CO. v. BURNHAM.
• Court: U.S. Court of Appeals — Tenth Circuit

124 F.2d 500 (1941)

UNION PAC. R. CO. v. BURNHAM.

No. 2363.

Circuit Court of Appeals, Tenth Circuit.

December 24, 1941.

Charles J. Kelly, of Denver, Colo. (T. W. Bockes, of Omaha, Neb., and E. G. Knowles and Hughes & Dorsey, all of Denver, Colo., on the brief), for appellant.

Darwin D. Coit, of Denver, Colo. (Finlay M. Robinson and William L. Branch, both of Denver, Colo., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

Burnham recovered a judgment against the Union Pacific Railroad Company for personal injuries and damages to his Ford truck resulting from a collision between the truck and a locomotive of the railroad company which occurred in Greeley, Colorado.

Burnham is a painter by occupation. A few minutes after 8 o'clock, A. M., on June 28, 1940, Burnham, traveling in the truck, entered the westerly opening of an alley situated between Sixth and Seventh Streets in Greeley, Colorado, and proceeded easterly through the alley.

A commercial track of the railroad company extends along the easterly opening of the alley running at approximately a right angle to the alley. Buildings are located on both sides of the alley at its easterly opening. The distance between the west rail of the commercial track and the east side of the building on the south side of the alley is 5 feet, 1¼ inches. The distance between the west rail of the commercial track and the east side of the building on the opposite side of the alley is 5 feet, 3¼ inches. The width of the alley is 19 feet, 10½ inches. There is an offset in the northeast corner of the building on the south side of the alley 4 feet, 10 inches in length from east to west and about 1½ feet in width. A telephone pole is situated about 1¾ feet from the south side of the alley and about 12 feet from the west rail of the commercial track. There is a stop sign on the telephone pole. Burnham testified that he stopped at the stop sign, with the front bumper of the truck at the stop sign and the left wheels of the truck about one foot north of the center line of the alley; that the distance from the front seat to the front bumper was about 6 feet; that from the point where he stopped, he could see 8 or 10 feet along the commercial track; that he did not hear any engine bell, whistle, or escaping steam, nor see any flagman or member of the train crew at the alley; that it was a clear, still day; that he was wearing an ordinary painter's cap; that the truck was an open type with a cloth top and no windows; that there was no noise to interfere with his hearing; that he could have heard the locomotive bell had it been ringing, and that it was not ringing; that he moved forward from the stop sign at a speed of about one mile per hour to get a better view and again stopped when the bumper of his truck was about 2½ feet from the west rail of the commercial track; that he then looked first to the left and did not see any train; that he then looked to the right and the locomotive was upon him.

The cylinder of the locomotive collided with the front end of the truck, swung it around against a telephone pole on the north side of the alley, resulting in a fracture of the left hip of Burnham and contusions and abrasions to his body, and damage to the truck.

The center of the cylinder on the locomotive is the widest part of the locomotive. It extends 2 feet, 6¾ inches outside the adjacent rail.

The evidence established that it was customary for the railroad company to have a lookout at the alley when a train was making a backward movement on the commercial track but not when it was making a forward movement. The movement on the day of the accident was a forward movement. Five members of the train crew testified that the bell was ringing continuously from the time the forward movement started until after the accident occurred. Two employees of the owner of the building situated on the south side of the alley, who were working in the building, testified that the bell was ringing as the train approached the alley and at the time of the accident.

As the locomotive approached the alley it was traveling 3 to 5 miles per hour.

A diagram, drawn to scale and admitted to be correct by both sides, shows that Burnham could have seen from where he stopped at the stop sign to a point on the east rail of the commercial track about 10½ feet south from where the south line of the alley, if extended, would intersect the commercial track. It further shows that had he stopped at a point where the front bumper would have barely cleared the locomotive, he could have seen to a point on the east rail of the commercial track about 40 feet south from where the south line of the alley, if extended, would intersect the commercial track.

The railroad company seeks reversal of the judgment on two grounds, (1) that the evidence did not establish negligence on the part of the railroad company, and (2) that it affirmatively showed that Burnham was guilty of negligence which contributed to the accident.

An ordinance of the city of Greeley requires that the engineer shall ring, or cause to be rung, the locomotive bell...