Allinson v. Missouri-Kansas-Texas R. Co., MISSOURI-KANSAS-TEXAS

• Decision Date: 19 June 1961
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 7880,7880
• Citation: 347 S.W.2d 902
• Parties: Gerald D. ALLINSON, a minor, by his next friend, Roy Allinson, Plaintiff- Respondent, v.RAILROAD COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 902

347 S.W.2d 902

Gerald D. ALLINSON, a minor, by his next friend, Roy Allinson, Plaintiff- Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a corporation Defendant-Appellant.

No. 7880.

Springfield Court of Appeals, Missouri.

June 19, 1961.

Poague & Brock, Julius Wall, Clinton, for defendant-appellant.

John M. Belisle, Morran D. Harris, Osceola, for plaintiff-respondent.

STONE, Presiding Judge.

About 6:30 P.M. on Saturday, December 20, 1958, plaintiff Gerald D. Allinson, then sixteen years and three months of age, and a neighbor youth, Rondole Lee Lewellen, who had just turned his sixteenth birthday, left their farm homes southeast of Appleton City, Missouri, in a 1952 Chevrolet sedan owned by plaintiff's father. With plaintiff driving, they headed for Rockville where they had 'dates' at 7 P.M. But, this youthful pleasure trip quickly turned into a nightmare of disappointment and disaster when, on farm-to-market Route P, a two-lane highway with a blacktop surface, the Chevrolet crashed into the side of a Katy freight train standing on a country crossing, sometimes called the Lindale crossing. For injuries then sustained, plaintiff brought this suit against defendant railroad and in due time obtained a verdict and judgment for $3,500. On this appeal, defendant's initial contention is that its motion for a directed verdict at the close of the evidence should have been sustained because (a) plaintiff failed to make a submissible case of actionable negligence on the part of defendant and (b) plaintiff was guilty of contributory negligence as a matter of law.

At the Lindale crossing, Route P is an east-and-west road intersected by two sets of defendant's tracks, about 39 feet apart, running in a general northerly-and-southerly direction. The east set of tracks is a switch track or siding, and the west set is the main line track. For a west-bound motorist approaching the Lindale crossing from the east, as was plaintiff on the occasion under discussion, Route P is straight for almost one mile; and, for some 500 feet east of the crossing, the highway is practically level. From the railroad crossing sign erected by the State Highway Department on the north shoulder of Route P about 450 feet east of the crossing to the main line crossing, defendant's surveyor found a difference in elevation of only .59 foot (or about 7 inches), the investigating trooper of the State Highway Patrol agreed that 'to the naked eye it's practically level,' and plaintiff himself estimated only an inconsequential upgrade (for a west-bound motorist) of 'I'd say a couple feet' which, as he readily conceded, did not tilt the headlights of the west-bound Chevrolet enough to interfere with his vision ahead or to cast the headlight beams away from an object on the crossing. In the first 100 feet west of the main line crossing, there is (looking west) a sloping downgrade, but not an abrupt drop, of 2.67 feet.

At the time of accident, the main line crossing was blocked by one car of a northbound 156-car freight train, which had stopped with about 27 cars south of the crossing and had been cut near the head or north end of the train for switching operations. Plaintiff described the car on the crossing as 'a dark object'--'either a coal car or a box car.' His companion 'thought it was a box car'--'some kind of dark color'--'it could have been black or brown or something, I don't know for sure.' Plaintiff's witness Brown, eastbound on Route P who approached the crossing from the other side and 'just came to a normal stop' some 20 to 30 feet from the standing train, said that the crossing was blocked by a red box car. In any event, the blocking car was not a flat car. Contrast Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134. Admittedly, there was no light on the train near the crossing and no flagman at the crossing. In fact, none of the train crew saw the collision or even knew of it until the station operator at Appleton City informed them by radio while the train was running near LaDue, Missouri.

Plaintiff's testimony affirmatively showed that there was no fog, mist or other atmospheric condition which limited or affected his vision on the evening of this accident. In short, it was 'a normal night' for driving. The Chevrolet sedan driven by plaintiff had four-wheel brakes 'in good working condition' and headlights 'working properly' on both high and low beam which, at and immediately prior to the accident, were on high beam. Young Lewellen, his companion at the time and his witness upon trial, confirmed the fact that the Chevrolet had 'good headlights'--'they was regular, they was in good condition,' and that, approaching the crossing, the headlight beams were not tilted up or down by the topography of the highway and he had 'normal view' ahead. Plaintiff had traveled this same road 'many times before,' both during the day and at night and both west-bound and east-bound. As he neared the crossing, he knew that he was approaching it, knew that there were two sets of tracks, and knew 'the lay of the land on the west side of the tracks.' Proceeding west on Route P, plaintiff had been driving the Chevrolet (so he stated at the trial) at a speed of about 45 miles per hour; but, realizing his approach to the crossing, he had slackened speed to 30-35 miles per hour before he reached the first set of tracks, i. e., the switch track or siding. This slackening of speed must have been accomplished simply by lifting his foot on the accelerator, because plaintiff insisted that he did not have time to get his foot on the brake pedal after he first sighted 'a dark object' on the main line crossing as the Chevrolet was passing over the switch track or siding, no more than 39 feet distant. Plaintiff did not see the obstruction on the main line crossing a sufficient length of time prior to the crash to recognize it or to know that he was about to run into the side of a train. Young Lewellen 'saw it just a split second before we hit it * * * just about the same time we hit it, really' but, in that split second, thought that it was a train. Plaintiff said that he had been looking 'straight ahead,' and his companion said that, although he had been 'just talking mostly,' he also had been 'looking down the road.'

The only reason suggested by plaintiff upon trial, or by his counsel upon appeal, for plaintiff's failure to have observed the train in time to have stopped safely was that, while he was traveling 'the last thousand or twelve hundred feet' before reaching the crossing, plaintiff and his companion saw what appeared to be the headlights of an east-bound automobile on the other side of the crossing, and that thereby (in the language of his brief) 'plaintiff was given the impression (mistaken though it was) that the way was clear; that is, an illusion of safety was created wherein plaintiff was deceived as to the actual situation.' There was evidence that, due to the downgrade (looking west) of 2.67 feet in the first 100 feet west of the crossing, the headlights of an automobile, headed east up that grade, would shine under a freight car standing on the main line crossing and would be visible to a west-bound motorist (such as plaintiff) on the opposite side of the crossing. Plaintiff testified that he saw 'two lights almost together'--'you could barely see both of them there.' When he first saw these lights, plaintiff had no idea how far they were from the crossing. He thought that they were moving at first, but he could not say whether they continued to move until the moment of collision. The testimony of young Lewellen, plaintiff's companion, concerning these lights was to the effect that, when he first saw them, they looked 'like any normal car lights' and 'might have been about the same or a little closer' to the crossing than the Chevrolet driven by plaintiff. 'It seems to me (Lewellen) like they were moving, but they might have been not very much.' Lewellen thought that these lights remained visible to him until the time of accident. As to whether they had stopped moving, 'they might have just a little while before it got to the tracks.' Both plaintiff and his companion testified positively that these lights in no wise blinded them or interfered with their vision ahead.

Evidence adduced by plaintiff showed that, while the crossing was blocked, at least three east-bound automobiles approached from the west on Route P and stopped safely. The driver of one of those automobiles, plaintiff's witness Reasoner, approached the crossing under circumstances somewhat analogous to those surrounding plaintiff's approach, in that, as Reasoner neared the crossing, he saw 'lights * shining underneath' the train from the headlights of an automobile (not the Chevrolet driven by plaintiff) on the opposite side of the crossing, headed west on Route P. He 'couldn't see right exactly into' these headlights but the 'lights * shining underneath' the train helped, rather than hindered, him in discovering the obstruction--'that's how come I noticed the train.' Reasoner, who had been traveling 55 to 60 miles per hour, made 'a pretty fair stop' without skidding his wheels or sliding sidewise. Both he and the motorist on the opposite side of the crossing turned around and left before plaintiff drove into the train. Another of the east-bound drivers, identified as Raymond Diehl, also had turned around and had left before plaintiff's accident. The third east-bound driver, plaintiff's witness Brown, who had approached the crossing at 40 miles per hour, had 'not too much' trouble seeing the train and 'just came to a normal stop' some 20 to 30 feet from the crossing. After waiting for several minutes, Brown backed a short distance to the west on Route P and then, in the process of turning around, pulled forward to his left or to the north into a country road paralleling the railroad tracks and stopped with the rear end of his automobile about five feet from Route P...