Wilcox v. St. Louis-Southwestern R. Co., LOUIS-SOUTHWESTERN

• Decision Date: 10 July 1967
• Docket Number: No. 52204,No. 1,LOUIS-SOUTHWESTERN,52204,1
• Citation: Wilcox v. St. Louis-Southwestern R. Co., 418 S.W.2d 15 (Mo. 1967)
• Parties: Alvie WILCOX, Guardian of the Estate of James E. Wilcox, a Minor, (Plaintiff) Appellant, v. ST.RAILROAD COMPANY, a Corporation, and Norvel W. Duncan, Administrator of the Estate of William E. Childs, Deceased, (Defendants) Respondents
• Court: Missouri Supreme Court

Page 15

418 S.W.2d 15

Alvie WILCOX, Guardian of the Estate of James E. Wilcox, a Minor, (Plaintiff) Appellant, v. ST. LOUIS-SOUTHWESTERN RAILROAD COMPANY, a Corporation, and Norvel W. Duncan, Administrator of the Estate of William E. Childs, Deceased (Defendants) Respondents.

No. 52204.

Supreme Court of Missouri, Division No. 1.

July 10, 1967.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 11, 1967.

Charles M. Cable, Kennett, James W. Jeans, St. Louis, for appellant.

Coburn, Croft & Kohn, Thomas L. Croft, Alan C. Kohn, St. Louis, for defendant-respondent, St. Louis Southwestern Railroad Co.

HOLMAN, Judge.

Plaintiff, through his guardian, filed this suit in an effort to recover damages in the amount of $500,000 for personal injuries he received when the car in which he was riding was struck by a train. Defendants are St. Louis-Southwestern Railroad Company and Norvel W. Duncan, administrator of the estate of the driver of the car. The jury returned a verdict for plaintiff and against Duncan in the sum of $108,000, and in favor of the defendant railroad company. Plaintiff has duly appealed and his only contentions here relate to the admission of certain evidence offered by the railroad company.

Plaintiff's case against the railroad was submitted upon the theory that his injuries resulted from the negligence of the engineer in that he 'knew or by the use of ordinary care could have known that there was a reasonable likelihood of collision in time thereafter to have slackened the speed of the train but he failed to do so.'

The collision in question occurred about noon on September 18, 1964. Earlier that morning plaintiff's uncle, William E. Childs, the driver of the car involved, accompanied by his father-in-law, Mr. Mize, had stopped by the Wilcox home. When they indicated that they planned to go fishing plaintiff and his younger brother John were given permission to go with them. They were en route to a 'fishing spot' when the collision occurred. It was a bright clear day and the pavement was dry. The accident occurred on Highway 'K', a north-south blacktop public road 18 feet wide. A single track of the defendant railroad company crossed Highway K at an angle in a northeasterly-southwesterly direction. The track is straight and level. The road is straight and as it approaches the track from the south there is a gradual rise of about one foot every 100 feet for a distance of 300 feet. A railroad crossbuck sign was located 20 feet south of the nearest rail six feet east of the east edge of the highway. A house was located on the east side of the highway approximately 700 feet south of the center of the track. There was a railroad warning sign 604 feet south of the crossing. A tree frequently referred to in the evidence was located 371 feet east of the center of the highway on the south edge of the railroad right-of-way. The train was approximately 150 feet in length and consisted of a Baldwin switcher-type locomotive pulling an empty flatcar and a caboose. The locomotive was traveling rear end first which placed the engineer on the left side of the cab. The head brakeman, Earl Venable, was riding on the right side of the cab.

Mr. Childs and Mr. Mize were both killed in the collision, and plaintiff and his brother were injured in such a manner that neither retained any memory of the facts relating to the collision.

Harry Johnson, the engineer on the locomotive at the time in question, called as a witness by plaiantiff, testified that the engine had no speedometer or speed tape, but he give it as his 'estimate or best judgment' that the train was traveling from 30 to 32 miles per hour as it approached the crossing. He further testified that he saw the automobile approaching from the south when it was about 700 feet from the crossing and was going at a speed which he estimated at 60 m.p.h.; that the engine was then 371 feet from the crossing; that he blew the whistle continuously after he saw the car, giving first the normal whistle and then a series of short alarm whistles as the train neared the crossing; that he noticed a slackening of the speed of the automobile as it 'drifted' to the right; that although he had his hand on the brake lever from the time he first saw the automobile he did not make any application of the brake until he made a service application four or feet before impact, and at the moment of impact made an emergency application. Apparently his explanation for not having applied the brake earlier was that after the car got to a point where it could not have been stopped before reaching the crossing, he knew he could not have applied the brakes and slowed the train before it reached the crossing. He stated further that the car was traveling from 25 to 30 m.p.h. at the time of the collision, and that it was his opinion that the car's stopping distance at a speed of 60 m.p.h. was 251 feet.

On direct examination Mr. Johnson stated that he could have slowed the train to 20 m.p.h. in 100 feet. On cross-examination he attempted to explain that answer by stating that he meant that such reduction could be made in 100 feet after the brakes took effect; that there is a lapse of five or six seconds after either a service or emergency application before there is any reduction in the speed of the train.

Robert Boehlow, a driver's education instructor, testified that an automobile in good condition traveling at a speed of 60 m.p.h. could be stopped in 272 feet, of which 66 feet is reaction time and 206 feet braking distance; that a car going 25 m.p.h. would move at the rate of 38 feet per second, and at 30 m.p.h. would move at 44 feet per second; that the Chevrolet Nova here involved was 15 feet 7 inches long and that it would have passed the 11-foot-wide locomotive in 27/44 of a second traveling 30 m.p.h., and in 3/4 of a second at 25 m.p.h.

A highway patrolman, Richard Hurst, testified that he arrived at the scene shortly after the collision and that he found a skid mark which began 136 feet south of the rail but which left the highway on the right side 38 feet south of the rail. From the skid mark and other evidence he estimated the speed of the automobile at 50 m.p.h. when the brakes were applied and 25 m.p.h. at the time of impact. He further stated that the crossarm located just south of the crossing had been knocked down and that his measurements showed that the train stopped 395 feet beyond the point of impact.

As indicated, the only points raised on this appeal relate to the admission of certain testimony concerning brake tests made by the defendant railroad company on January 19, 1966. Plaintiff contends that if there had been a reduction of the spped of the train to the extent that it would have arrived at the collision point about 3/4 of a second later than it did, the car would have crossed the tracks ahead of the train and the collision would not have occurred. The day the tests were made was a very cold dry day. Present were John William Bland, professional engineer, Clifford Kifer, District Engineer for Westinghouse Air Brake Company, and Edward E. Bergman, a retired railroad employee with considerable air brake experience. Also present were the following employees of defendant railroad: Ralph Miller, road foreman of engines, J. R. Johnson, conductor, William Ware, superintendent of the branch line involved, Earl Venable, brakeman, and the company attorneys. The train used in the tests consisted of a Baldwin engine, No. 1024, which was purchased at about...