Albertson v. Wabash R. Co., No. 42663

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM
• Citation: 363 Mo. 696,253 S.W.2d 184
• Parties: ALBERTSON v. WABASH R. CO. et al
• Decision Date: 10 November 1952
• Docket Number: No. 42663,No. 2

Page 184

253 S.W.2d 184 363 Mo. 696 ALBERTSON
v.
WABASH R. CO. et al. No. 42663. Supreme Court of Missouri, Division No. 2. Nov. 10, 1952.
Motion for Rehearing or to Transfer to Court en Banc Denied
Dec. 8, 1952.

[363 Mo. 697]

Page 185

E. E. Thompson, Eugene R. Brouse and Sam Mandell, Kansas City, for appellant Felix Albertson.

Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

Joseph H. Miller, St. Louis, David R. Hardy, Sam B. Sebree and Sebree, Shook, Hardy & Ottman, Kansas City, for appellant, Wabash R. Co., and respondent William E. Wolfe.

[363 Mo. 698] BARRETT, Commissioner.

Felix Albertson was a guest in William F. Elam's 1938 Plymouth sedan when it ran into an oil tank car standing on the Wabash crossing in Henrietta, a village in Ray County, about 11:20 p. m. on the 18th day of April 1947. To recover damages for his resulting injuries Albertson instituted this action against the Wabash Railroad and William E. Wolfe, a flagman. At the close of the plaintiff's evidence the trial court directed a verdict in favor of Wolfe, and the plaintiff has appealed from that judgment. [363 Mo. 699] A jury has found that Albertson's injuries were proximately caused by

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negligence on the part of the railroad, and, accordingly, awarded him $15,000. The railroad has appealed from that judgment. Upon the railroad's appeal the primary question is whether there is evidence from which the jury could reasonably find the existence of special circumstances rendering the crossing peculiarly hazardous, if not Albertson, even though a guest, is not entitled to recover; and, conversely, if reasonable minds could differ as to the sufficiency and probative force of the evidence, the railroad's liability and Albertson's contributory negligence were questions for the jury to resolve. Three of the leading and contrasting cases in this jurisdiction are State ex rel. Thompson v. Cave, 358 Mo. 414, 215 S.W.2d 435; State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915, and Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134.

Elam and his brother-in-law, Vanderpool, lived on farms in the Cowgill community. On April 18th Elam was busy sowing oats. About 9:15 he and Vanderpool picked up their friend Albertson in Cowgill and the three of them started to Richmond, twenty-seven miles distant, so that Elam could talk to man by the name of Yates about renting some land. Just before they reached Richmond they picked up two young women 'hitchhikers,' and in Richmond they all stopped in the 'restaurant taxicab stand' and drank coffee and cokes. Elam was unable to locate Mr. Yates by telephone, the girls were going to Lexington, and Albertson thought he might talk to a night watchman at the sales barn in Lexington about some posts his son-in-law had left there for sale, and Elam 'got to talking about he ought to take the girls over there' and, everything considered, they decided to drive to Lexington. As they were leaving the village of Henrietta on Highway 13, about 11:20 p. m., the Plymouth sedan ran into an oil tank car, the sixth of fifty-nine cars in a freight train, standing on the Wabash crossing. The train had been stopped on the crossing about five minutes and was there for the purpose of 'taking on water.'

The oil tank car, 35 feet 6 inches long, was so stopped that its wheels were at the furthermost edges of the highway crossing. The cylindrical tank car was painted black and upon its sides, in white, were the letters 'G A T X' followed by five numerals 7 inches in height and spaced 9 inches apart. The brake cylinder and reservoir for the brakes beneath the car were 1 foot and 4 inches and 1 foot and 8 1/2 inches above the ground, and the running board around the tank was 3 feet 9 1/2 inches above the ground, while the height of the tank was 11 feet and 3/4 inches from the top of the rail. The solid beam under the tank was 2 feet 3 1/8 inches from the top of the rail.

Highway 13, a concrete roadway, goes directly through Henrietta and in its southern outskirts are the tracks of the Santa Fe Railroad. [363 Mo. 700] There are four or five of these tracks, a main track, a passing track and two or three switch tracks. Three hundred and sixty-one feet south of the Sante Fe tracks, at the southernmost limits of the town, a single track of the Wabash Railroad intersects the highway and there is a slight downward curve, four degrees, in the highway at this point. There are no warning or crossing signs or signaling devices on the north side of the Wabash tracks. There is a cross-armed signal on the south side of the track but that signal was obscured by the train. Between the Sante Fe tracks and the Wabash tracks there is an oil station and a hotel on the west side of the highway. There are no lights at the Wabash crossing. However, at the time of the collision, there was a light on the front of the hotel, sixty-four feet north of the crossing, and there was a street light on a pole still farther north of the hotel, and there was a light in the oil station nearer the Santa Fe tracks. Ten feet south of the Santa Fe tracks is a watchman's shanty used by the flagman, Wolfe. It was his duty to 'flag' both the Santa Fe and the Wabash crossings.

The brakes on Elam's Plymouth had been recently overhauled and were in good condition. The seal beam headlights were also in good condition but on that night, because

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of mist and fog, illuminated the highway 'not much over 50 feet on brights' and on 'dims wouldn't have reached out that far.' As the freight train came into Henrietta Wolfe stood about twenty-five feet north of the Wabash tracks and flagged the crossing with his electric lantern until the train blocked or covered the crossing. As the train blocked the crossing he turned and walked back towards his shanty and was close to it when the Plymouth sedan passed him traveling at a speed of about twenty-five miles an hour. He heard the noise and turned around as the automobile crashed into the tank car 350 feet away. Elam, Vanderpool and Albertson testified that it had been raining and that at the time of the crash there was some moisture. Albertson said, 'Some fog there,' Vanderpool said, 'It was misting and foggy,' and Elam said, 'It was misting and raining.' (The railroad's witnesses testified that it was dark and 'cloudy' but that there was no moisture or fog. There was also testimony that the three men in the automobile had been drinking mint flavored gin.) The driver and occupants of the automobile said that the one windshield wiper was working and that they were all looking straight ahead and could see for a distance of thirty to thirty-five feet. They were not familiar with the crossing, saw no lights or signals, slowed down and crossed the Santa Fe tracks at a speed of about twenty-five miles an hour and after they had traveled about 300 feet and were within ten feet of the crossing, some said two automobile car lengths, for the first time saw the tank car. It was then too late, after a quick application of the brakes, to avoid crashing into the tank car. Because of the downgrade the automobile lights were not focused directly upon the tank [363 Mo. 701] car, and there was testimony by an expert, an 'illuminating engineer,' that the black tank car reflected but a small percentage of the light.

The railroad analyzes the circumstances and insists that they do not constitute special circumstances rendering the crossing peculiarly hazardous and, therefore, there was no breach of duty or negligence upon the part of the railroad. A railroad has the right to stop...