Wiseman v. Missouri Pac. R. Co.

• Decision Date: 14 November 1978
• Docket Number: No. 39135,39135
• Citation: 575 S.W.2d 742
• Parties: Billy Ray WISEMAN, Sr., et al., Plaintiffs-Respondents, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 742

575 S.W.2d 742

Billy Ray WISEMAN, Sr., et al., Plaintiffs-Respondents, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.

No. 39135.

Missouri Court of Appeals, St. Louis District, Division Four.

Nov. 14, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Jan. 12, 1979.

Application to Transfer Denied Feb. 13, 1979.

R. A. Wegmann, Ray Dickhaner, Dennis Tesreau, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Hillsboro, for defendant-appellant.

John W. Hammon, Anderson, Brooking & Hammon, Hillsboro, Robert J. Robinson, Dennis Gassen, Pannell, Dodson & Robinson, Festus, for plaintiffs-respondents.

SNYDER, Judge.

Plaintiffs-respondents, the surviving spouse and three minor children of Lulu Belle Wiseman, sued defendant-appellant, Missouri Pacific Railroad Company, to recover damages for Mrs. Wiseman's alleged wrongful death. She was struck and killed by a train as she walked across appellant's tracks at a crossing in DeSoto, Missouri. The case was submitted to the jury under the humanitarian negligence doctrine on the failure of appellant to slacken the speed of its locomotive. The jury returned a verdict for the respondents and awarded $185,000.00 in damages. The trial court entered judgment accordingly. Missouri Pacific Railroad Company appeals.

Appellant raises five grounds for reversal, contending that the trial court erred (1) in denying appellant's motion for directed verdict because the respondents failed to make a submissible case under the humanitarian doctrine on failure to slacken speed; (2) in failing to define the terms "negligence," "negligent" and "negligently" as used in the instructions to the jury; (3) in permitting argument and instructing on "aggravating circumstances" in connection with the calculation of respondents' damages; (4) in permitting respondents to "impeach" their own non-party witness, head brakeman David Storey; and (5) in admitting evidence on the position or direction of the locomotive and the head brakeman's training. These points are ruled against appellant and the judgment is affirmed.

THE FACTS

Mrs. Wiseman, 38 years old, a pedestrian, was struck and killed at 5:38 p. m. on March 31, 1975 by a Missouri Pacific freight train at the intersection of the Missouri Pacific tracks and Miller Street in DeSoto, Missouri. Mrs. Wiseman was walking west on Miller Street, at a right angle to appellant's north-south railroad tracks. Walking along the southernmost edge of the pavement of Miller Street, she had crossed five of the seven railroad tracks when she stepped onto the sixth track and into the path of appellant's north-bound train. She was struck by the front of the locomotive and knocked to the ground. Her body was found north of the crossing, lying between the rails.

Mrs. Wiseman's sight and hearing were unimpaired. She was not depressed at the time of the accident. She was not under any medication and her use of alcohol was temperate. She was walking to the DeSoto high school to attend evening classes to obtain a high school equivalency certificate. Mrs. Wiseman, a DeSoto resident for nearly two years, was familiar with the Miller Street tracks, having crossed them many times by car and on foot. At the time of the accident, it was still daylight and visibility was good. The weather conditions were clear and dry.

The physical layout of the Miller Street crossing is unusual. East and West Main Streets in DeSoto are two different streets. Both run north and south, East Main parallel and adjacent to the Missouri Pacific tracks on the east, and West Main parallel and adjacent to the Missouri Pacific tracks on the west. Miller Street runs east and west. A person traversing Miller Street at this point, going from east to west as Mrs. Wiseman did, would first cross East Main Street, then the tracks, then West Main Street.

The crossing is guarded by railroad "cross-buck" signs and electric flashing red signals at all four corners. Witnesses to the collision testified these signals were operating at the time of the accident but it is not clear whether Mrs. Wiseman entered the crossing before or after the signals began to flash their warning.

There was evidence that these signals often flashed when no train was present (perhaps because six of the seven tracks are siding or switching tracks used by the appellant in connection with its depot and work yards in DeSoto). Witnesses for respondents testified they had waited up to 15 minutes with the signal lights flashing and no train in sight. There was also evidence that DeSoto residents are in the habit of crossing against the signals, even when a train is visible. Witnesses to this accident had in the past seen "close-call," near collisions at this intersection.

Appellant's freight train consisted of a locomotive, six empty hopper cars and a caboose. The diesel locomotive was being operated "backwards," that is, with the cab to the rear and the long end of the unit in front. The train's engineer, Fred Rohlfing, was seated at the controls on the west side of the cab. The head brakeman, David Storey, was seated on the east side of the cab.

When the locomotive is operated with the cab in front, the engineer and brakeman view the track through a cab-width front window. Each man has a full view of the track ahead and can see to both his right and his left. But when the locomotive is operated with the cab to the rear, as it was here, each man's vision directly in front of the engine and to his partner's side is blocked by the long end of the engine. Thus, while engineer Rohlfing could see to the north and west but not to the east, head brakeman Storey could see to the north and east but not to the west. The engineer could not, therefore, see Mrs. Wiseman as she approached the train track from the east.

As the train approached DeSoto from Pea Ridge going north, it left the main track and continued on to DeSoto on a siding track. From the time the train entered the siding track until the occurrence of the accident, engineer Rohlfing was operating the train through the use of the throttle and automatic brake valve. During this entire period, the train's brakes were in "service application." In this mode, the brake shoes are directly in contact with the wheels, applying a slight amount of pressure. In the event of an emergency application of the brakes, having the brakes in "service application" saves a period of two or more seconds because the brake shoes are already in contact with the wheels. When the train was 200 feet from Miller Street, it was traveling approximately eight to ten miles per hour.

Head brakeman Storey, called as a witness by respondents, testified he first saw Mrs. Wiseman when she was 40 feet from the collision point. The train at this time was approximately 106 feet from the point of impact. Storey then looked away and did not see her again until she was 12 1/2 feet from the point of collision. He realized her peril and shouted, "Oh, my God, she's not going to stop," but did not attempt to activate the emergency brake valve directly behind his seat in the cab. Approximately two to three seconds passed before engineer Rohlfing made an emergency application of the automatic brake valve and "big holed" the train, bringing it to a stop (by various estimates) 124 to 300 feet past the point of the collision. "Big holing," in railroad parlance, means placing the automatic brake valve in an emergency stop position.

Testimony of eyewitnesses and the train crew established that the train's whistle, bell and two front headlights were functioning at the time of the accident.

THE HUMANITARIAN SUBMISSION

Appellant asserts the trial court should have granted its motion for a directed verdict at the close of respondents' evidence because the respondents failed to make a submissible case under the humanitarian doctrine.

In determining whether a submissible case was made, the evidence is considered in the light most favorable to the plaintiffs, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to plaintiffs the benefit of all favorable inferences that reasonably may be drawn from such evidence. (Cites omitted).

Epple v. Western Auto Supply Company, 548 S.W.2d 535, 538 (Mo. banc 1977).

'(T)he granting of a motion for directed verdict is a drastic action by a trial court, and that it should be done only when all of the evidence and the reasonable inferences to be drawn therefrom are So strongly against plaintiff that there is no room for reasonable minds to differ.' (Italics added.) Justice v. East St. Louis City Lines, Inc., Mo. Sup., 375 S.W.2d 150, 155.

Moore v. Eden, 405 S.W.2d 910, 914 (Mo. 1966). A review of the record indicates the respondents did make a submissible case.

Under a humanitarian submission, the plaintiff must establish the following five elements: 1) the plaintiff was in a position of immediate danger; 2) the defendant was aware or should have been aware of the plaintiff's position of peril; 3) after receiving such notice, the defendant had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; 4) the defendant failed to exercise the requisite care to avert such impending injury; and 5) by reason thereof, the plaintiff was injured. Banks v. Morris &amp Co., 302 Mo. 254, 257 S.W. 482 (banc 1924).

Epple, supra, 540.

As the court then notes:

The first step in establishing liability under the humanitarian doctrine is demonstrating that the plaintiff came into a position of immediate danger. This position is commonly defined by the Missouri courts as that position of danger to the plaintiff, whether or not the plaintiff was negligent in getting there, in which by reason of the then existing circumstances, if unchanged, injury to the plaintiff is reasonably certain and not a mere possibility. The peril must actually be imminent and...