Baldwin v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 08 April 1968
• Docket Number: No. 2,No. 52730,52730,2
• Citation: 425 S.W.2d 905
• Parties: Adeline Doris BALDWIN, Administratrix of the Estate of Albert G. Baldwin, Jr., Deceased, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Respondent, Harold C. Moore, Defendant
• Court: Missouri Supreme Court

Page 905

425 S.W.2d 905

Adeline Doris BALDWIN, Administratrix of the Estate of Albert G. Baldwin, Jr., Deceased, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a

Corporation, Respondent,

Harold C. Moore, Defendant.

No. 52730.

Supreme Court of Missouri, Division No. 2.

April 8, 1968.

Lyman Field, Rogers, Field & Gentry, Kansas City, for appellant.

Sam D. Parker, Jack W. R. Headley, Joseph E. Stevens, Jr., Kansas City, for defendant-respondent, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.

EAGER, Judge.

This case arises out of injuries to an automobile passenger suffered in a crossing accident. The collision occurred in the outskirts of Lawson (Ray County), Missouri, at about 12:10 p.m. on January 8, 1964. The original plaintiff Albert G. Baldwin Jr., T. R. Gray and Harold Moore were proceeding north on a gravel road in Moore's 1962 Ford; the extreme front of the car was struck, while stopped on the crossing, by a Santa Fe twenty-one car freight train with two diesel units traveling on the branch line that ran from Henrietta to St. Joseph. These three men were members of the National Guard and were then regularly employed at the 'Nike Base' located (by road) a little over two miles southeast of Lawson. They were, at the time, going into town for lunch. Plaintiff was sitting on the right side of the front seat, Gray in the middle, and Moore was driving. The train came from the east, which, of course, was on their right side. Plaintiff sued both the Santa Fe, as we shall call it for convenience, and Moore. The jury brought in a verdict for $50,000 against both. The trial court overruled Moore's after-trial motions and he appealed, but later dismissed his appeal. The Court sustained defendant Santa Fe's motion to set aside the verdict as to it and to enter judgment in accordance with its motion for a directed verdict; in the alternative the Court sustained Santa Fe's motion for a new trial on three stated grounds. Plaintiff appealed. We are thus only concerned with the issues between plaintiff and Santa Fe.

Plaintiff's case was pleaded and submitted on three issues of primary negligence, namely: (1) in permitting weeds, brush and undergrowth to obscure the vision of those so approaching the crossing from the south; (2) in failing, through its employees, to keep a careful lookout; and (3), in failing, through its employees, to give 'adequate and timely warning' of the approach of the train. Defendant pleaded and submitted contributory negligence on the part of plaintiff in failing to see the train and warn Moore, after undertaking to keep a lookout. Plaintiff suffered serious injuries, which fact is substantially undisputed. However, in October, 1965, he suffered a coronary occlusion with considerable resulting disability; there is much controversy concerning the cause of that. After the appeal was taken plaintiff died, and his administratrix has been substituted as appellant. We shall continue to refer to Mr. Baldwin as the plaintiff.

It may clarify matters if we state the substantive contentions of the parties in reverse order, and before proceeding to a further factual statement. Defendant insists: (1) that plaintiff's evidence did not make out a submissible case because none of the submitted grounds of negligence was a proximate cause of the collision; (2) that plaintiff was guilty of contributory negligence as a matter of law; and (3), in the alternative, that the Court correctly sustained the motion for a new trial because there was no substantial evidence to support the submission in plaintiff's Instruction No. 3 of obstructed vision or of the failure to keep a lookout. Inherent in the first two of these contentions is the insistence that plaintiff was conclusively bound by his testimony allegedly showing that he could have seen the train in time for an effective warning to the driver. Plaintiff counters all these contentions, asserting: that there was substantial evidence to support all three charges of negligence and the element of proximate cause as to all three; that plaintiff was not guilty of contributory negligence as a matter of law, his allegedly binding statements being mere estimates and not judicial admissions, and that there was ample evidence to support every disjunctive submission in plaintiff's Instruction No. 3. These opposing views may, we hope, be further clarified when the evidence is discussed.

The record is voluminous and the exhibits are many. The contentions require a discussion of the evidence in detail. When these men left their place of work at about noon, they traveled first south on a macadam road inside the base, then west for a mile or a little more on a gravel road, thence north a mile or so on the same gravel road to the place of collision. The railroad ran substantially east-west at the point in question, although veering a little to the northwest. The car was stopped with its front end over the first rail or within the overhang; it was knocked into the ditch at the southwest corner of the crossing, and landed on its top. There was much evidence concerning weeds, brush, and sumac bushes, all of which leaves one in some doubt as to the precise situation. It was conceded that there were uncut weeds along the right-of-way to the east, and photographs taken by defendant's claim agent on the next day show this. There was also a fence along the south side of the right-of-way with some weeds and brush along it, and the ground level at this fence appears to be substantially above the level of the rails at most points. The exhibits show considerable unidentified trash, vines or brush in some parts of the fence along the east side of the gravel road, which would not be the railroad's responsibility, but which did, to some extent, obscure the vision. Along the railroad and at some unascertained distance east of the crossing a cut or embankment began, getting much deeper as one proceeded on east. Brush is shown growing substantially all over that embankment, some rather high. It is impossible to tell from the photographs or the testimony just where the higher brush began, but there is a fair inference that some of it extended west of the embankment, perhaps to a point within 150--200 feet of the crossing (D's Exhibit 6a). Plaintiff offered, and the Court received, a plat prepared by an engineer in May, 1965; it was received for what it might be worth as of that time. It showed weeds and brush one and one-half to three feet high along the south part of the right-of-way from a point near the crossing to a point perhaps 165--170 feet east; from thence eastward to 300 feet the brush was shown to be from four to seven feet high all measured from the rail. The diesel locomotives were 14--15 feet in total height.

Plaintiff testified definitely that his window (right) was rolled down; further: that he heard no whistle of any kind at any time until the train was within 15--20 feet of the crossing; that the crossing was 'just about a blind crossing' for a car approaching from the south (to which there was no objection); that he began looking for a train perhaps 300 yards back; that beginning at about 100 feet south of the crossing Moore slowed the car to about 15 miles an hour; that he, plaintiff, continued to look 'both ways' for a train, but did not see it until the car was about 30--40 feet from the track; that all three apparently saw it at about the same time, Gray yelled something, and Moore 'slammed on' the brakes; that the train was about 90--100 feet away when he saw it, but it did not whistle; that the diesel whistles or horns were loud and could be heard easily for a distance of a mile; that he heard no bell and saw no headlight. Defendant bases its principal defenses upon a statement made by plaintiff on cross-examination. Plaintiff had testified that he was both listening and looking. When asked how far he could see east when 100 feet back from the crossing he said: 'I don't know. Not too far'; when pressed further on the point he said: 'Down to the east, I would say, possibly 200 feet.' He further testified that at 75 feet, 'It didn't improve your view very much * * * Possibly a little'; that at 50 feet 'I wouldn't know without measuring the distance. I don't know * * *'; that 'You couldn't see too far down the track until you got right up on the track on account of the cut.' He finally 'guessed' at the figure from 50 feet and his guess was stricken. He testified that one could not see farther east because of the 'weeds, brush, railroad cut'; that he looked east 'far more than once,' that he glanced east and glanced west 'as at any crossing' and that he was looking 'as far down the track as he could see'; also, that the cut or embankment was involved 'to a small part' in obscuring the vision; that in his judgment it would be about 300 feet to the 'deep part' of the cut.

Mr. Gray testified: that he first saw the train when they were 30--40 feet south of the crossing and the train was 75--100 feet east and that it was not whistling; that the car was moving at probably 20--25 miles an hour; that he made an exclamation; that the car was stopped but not soon enough to clear; that he did not know how far one could see east from 30--40 feet sough of the crossing; that he heard no whistle until the train was 'about ready to hit us,' 15--20 feet away, and after the car had stopped. Defendant Moore, the driver, called for cross-examination, testified: that his car was in good condition; that he heard no train whistle in the whole distance of perhaps two miles which he traveled from the Nike Base; that it was plaintiff's 'habit' to have his window down; that he first saw the train when the car was about 25 feet from the crossing and the train was then 'possibly' 100 feet east; that he was familiar with the crossing and that it was 'partially blind'; that someone 'hollered' at about the same time he saw the train, and at that time he first heard...