Tuller v. Atchinson, Topeka & Santa Fe Railway Co.

BARNARD, P. J. This is an action for damages on account of the death of Claude P. Tuller, an employee of the defendant railroad company, who was killed in a collision between a switch engine and a truck and semi-trailer owned by the defendant transfer company and driven by the defendant Freitas. The collision occurred at 11:50 o’clock a. m. on November 26, 1941, on premises owned by the Sun Maid Raisin Growers Association. A jury returned a verdict for $35,000 against all defendants. Motions for a new trial were denied and a judgment was entered from which the railroad company and the other defendants have separately appealed.

The accident occurred on the easterly of two parallel railway tracks extending through the Sun Maid property. It was stipulated that the tracks were also owned by Sun Maid. To the east of these tracks there was a row of sheds all filled with raisin boxes except for one, near the center, which was left open and used as a driveway. While there was no graded roadway the surrounding ground was level, had an oiled surface and was about flush with the top of the railway tracks. For some years trucks had been driven through this shed, which was No. 69, across the railway tracks and on through the Sun Maid grounds. The easterly rail of the tracks was about 16% feet westerly from the row of sheds. It was cus[854]tomary for switch engines to pass along these tracks and do daily switching for this industry.

On the occasion in question a switch engine was proceeding north on the easterly of these tracks for the purpose of bringing out certain cars. The switch engine was traveling backward and three men were standing on the footboard at the forward end of the moving engine. Engine foreman Stephens was standing on the westerly portion of the footboard, switch-man Bidgeway was standing on the easterly portion and the deceased, Tuller, was standing near the center of the foot-board. As the engine neared shed No. 69 the truck and semitrailer, driven by Freitas, came out of that shed and proceeded across the railway tracks, moving toward the west. The truck and semi-trailer was about 40 feet long and as it was proceeding across the nearest railway track it was struck by the backing switch engine at a point near the center or slightly to the rear of the center of the semi-trailer. The engine foreman and the switchman jumped and escaped injury, but Tuller was crushed between the engine and the semi-trailer and received injuries which caused his death.

Freitas testified that he had been driving similar equipment through this shed for many years; that he came out from shed 69 at a speed of about five miles an hour; that at that speed he could stop in less than 5 feet; that he could not look to the south along the railroad tracks until he emerged from the shed; that his seat was about 9 feet behind the front bumper of the truck; that as he came out of the shed he looked to the right first because it was an open view; that he then looked to the south; that when he looked to the south he saw the switch engine coming about 60 feet away; that he thought the engine was going to stop; that he proceeded at about the same speed for about 40 feet; that he did not apply the brakes until “pretty near to the impact”; that he saw some men on the footboard of the engine; that two of them got off the footboard; and that he did not see any signals given. He also testified that for a good many years he had known that switching was done over these tracks; that he knew such switching was done after 12 o’clock but had not seen it before 12 o’clock; and that he had not known exactly what time it was when he crossed this track, although someone told him afterward it was 11:50 a. m.