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SOUTHERN LUMBER COMPANY v. THOMPSON

August 3, 1955

SOUTHERN LUMBER COMPANY, PLAINTIFF,
v.
GUY A. THOMPSON, TRUSTEE, MISSOURI PACIFIC RAILROAD COMPANY, DEBTOR, DEFENDANT.



The opinion of the court was delivered by: Miller, District Judge.

On June 20, 1955, this case was tried to the Court, without a jury, and at the conclusion of the trial the case was submitted, subject to the filing of briefs by the parties in support of their respective contentions. The briefs have been received, and now the Court, having considered the ore tenus testimony of the witnesses, the pleadings, exhibits, stipulations, and briefs of the parties, makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

1.

The plaintiff is a citizen of the State of Arkansas. The defendant is a citizen of the State of Missouri. The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

On August 3, 1954, at approximately 3:45 p.m., M.M. James, an employee of the plaintiff, was driving a 1949 Mack truck, owned by the plaintiff, in a westerly direction upon State Highway 4 in the City of Warren, Arkansas.

At the same time a Diesel engine, owned by the defendant, was being operated in a northerly direction on the Missouri Pacific track, and was approaching the crossing of the track and State Highway No. 4.

3.

At the site of the crossing involved herein, the track runs generally north and south, and Highway No. 4 runs generally east and west. The highway is heavily traveled at this point, and defendant's trains cross the intersection rather frequently, although on no particular time schedule. On the south side of the highway and immediately east of the track there are located two or more houses, some shrubbery, weeds and other undergrowth, which obstruct the view of persons in vehicles traveling west upon the highway, and likewise obstruct the view of persons operating trains traveling north on the Missouri Pacific track. A cross-bar railroad crossing sign is located approximately 11 feet east of the track and 5 feet south of the highway pavement. Immediately east of the track the paved highway, from curb to curb, is 24 feet 2 inches. Persons traveling west on the highway do not have a clear view of the track to the south until they are within ten or twelve feet of the crossing.

Approximately one block west of the crossing is a traffic signal light. One block south of the crossing is Wheeler Street, which runs parallel to Highway No. 4. It is 457 feet from the south curb of Highway No. 4 to the north curb of Wheeler Street.

4.

Immediately prior to the accident involved herein, the defendant's engine had been engaged in switching operations in the Bradley Lumber Company yards, which were about 750 feet south of the Highway 4 crossing. When going into the yards the engine had been pulling or pushing some box cars and, as required by railroad rules, a member of the train crew flagged the crossings in the City of Warren, including the Highway 4 crossing. After the box cars had been disposed of in the Bradley Lumber Company yards, five members of the train crew were riding in or on the engine. The engine was 55 feet long, 14 feet high, and 10 feet wide, and the cab was located near the front of the engine. The engineer, M.T. Hickingbotham, was operating the engine and was on the west side of the cab. The fireman, M.L. Adams, was on the east side of the cab. The engine was a Diesel engine, and could be operated either forward or backward. As it left the Bradley Lumber Company yards traveling in a northerly direction, the engine was proceeding backward, and a brakeman, R.E. Hagan, was riding on the west side of the rear of the engine, which was the first part of the engine approaching the intersection of the track and highway. Two other brakemen were riding on the front of the engine, which was the last part of the engine approaching the intersection.

As the train started out of the Bradley yards, the engineer started the ringing of the automatic bell and also began his whistle signals for the Wheeler Street crossing, which was the first public crossing. After crossing Wheeler Street, the engineer discontinued the ringing of the bell and the sounding of the whistle until the engine neared the Highway No. 4 crossing, when said signals were again given.

Between Wheeler Street and Highway 4, the track is slightly downgrade, and the train was traveling about 6 or 7 miles per hour between the crossings. However, as the engine neared the Highway 4 crossing, the engineer slowed the engine to approximately 3 miles per hour.

The engineer, being on the west side of the cab, was not in a position to see any traffic approaching from the east. The fireman was on the east side of the cab, and when the engine was approximately 120 feet from the Highway 4 crossing, he glanced through or between some houses on the east side of the track and noticed the logs on the plaintiff's moving truck. The shrubbery and other obstructions then blocked his view, and he did not see the truck again until the engine was approximately 10 feet from the crossing. At that time he noticed the truck was attempting to stop, but apparently would not be able to do so, and he immediately told the engineer to stop the engine.

Mr. Hagan, the brakeman, had been riding on the steps on the west side of the rear of the engine (which was the part of the engine first approaching the intersection), and first noticed defendant's truck when the engine was about 20 feet from the Highway 4 crossing. As soon as the brakeman saw the truck would not be able to stop, he signaled the engineer to stop the engine and at the same time he jumped off the engine, apparently to avoid any injury to himself. With the engine proceeding at 3 miles per hour, Hagan could easily have flagged the crossing and warned traffic of the approach of the engine, but he did not do so because the railroad rules did not require him to flag such a crossing when the engine was not pulling or pushing any box cars.

The engineer received the signal of the brakeman and the warning of the fireman at approximately the same time, and he immediately applied the emergency brakes of the engine. However, he was unable to stop the engine, and the truck and the engine collided at about the north half of the highway. Adams and Hagan were the only members of the train crew who saw the truck prior to the collision.

5.

The defendant's driver, M.M. James, had driven over this crossing many times, and was familiar with the physical facts. On the day of the accident he had been hauling logs, and the truck was loaded with logs at the time of the collision. Before reaching the intersection, James had been driving defendant's truck approximately 20 to 25 miles per hour. As he neared the intersection he slowed the truck to approximately 15 miles per hour, and was attempting to regulate his speed in such a manner that he could reach the traffic signal one block west of the crossing at a time when the signal was green. When he was a short distance from the track he looked to his right and observed nothing. He then looked to his left, and at that time saw and heard the engine. This was the first time he was aware of the approach of the engine, and the truck was only a few feet from the track. James applied his brakes and swerved the truck to the right in an effort to avoid the collision, but he was unable to stop before the truck and the engine collided. The point of impact was the left front of plaintiff's truck and the left rear of the engine. (Since the engine was traveling backward, the point of impact was actually the front left or northeast part of the engine and the left front or southwest part of the truck.)

Immediately prior to the collision, two automobiles had been following plaintiff's truck. The first automobile was approximately 20 to 25 feet behind plaintiff's truck, but none of the occupants of this vehicle were witnesses in the trial of the case. The second car, which was about 20 to 25 feet behind the first car, was being driven by Russell Marshall, who had as a passenger Allen Childs. Childs did not see or hear the defendant's engine until it was right at the edge of the highway, and Marshall did not see or hear the engine until approximately the time it collided with the plaintiff's truck. At the time Marshall and Childs first observed the engine, their automobile was about 100 feet from the crossing. Marshall, Childs, and James each had normal hearing.

After the impact the front of plaintiff's truck was dragged a few feet to the north and the front end of the truck was severely damaged. However, the steps and the brake cylinder on the left rear of the engine were ...


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