Barlett By and Through Barlett v. Kansas City Southern Ry. Co., No. 75465

• Decision Date: 25 May 1993
• Docket Number: No. 75465
• Parties: Leslie Glen BARLETT, an Incompetent, By and Through his Guardian and Conservator, Sandra BARLETT, Plaintiff-Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri Corporation, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 396

854 S.W.2d 396

Leslie Glen BARLETT, an Incompetent, By and Through his Guardian and Conservator, Sandra BARLETT, Plaintiff-Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri

Corporation, Defendant-Appellant.

No. 75465.

Supreme Court of Missouri,

En Banc.

May 25, 1993.

Rehearing Denied June 29, 1993.

Daniel E. Scott, Lloyd R. Buehner, Jr., Lloyd R. Buehner, III, Joplin, for defendant-appellant.

Glenn R. Gulick, Jr., Joplin, for plaintiff-respondent.

BENTON, Judge.

Kansas City Southern Railway Company ("the Railroad") appeals from a judgment of $1.5 million for Leslie Glen Barlett. After opinion by the Court of Appeals, Southern District, this Court granted transfer. Rule 83.03. The judgment is reversed; the case is remanded for a new trial.

I.

On September 5, 1987, the Railroad's train--consisting of three engines and 110 cars stretching over 6,000 feet--was passing through Joplin, heading to Kansas City. At about 2:10 a.m., while on tracks owned by the Railroad, the train collided with a car driven by Barlett near the intersection of 20th Street and Michigan Avenue. Barlett sustained serious injuries.

In October 1987, the original petition was filed. Later, the probate division of the circuit court found Barlett incompetent, and appointed his mother as conservator of his estate. The petition was amended accordingly.

During the eleven-day trial in April and May 1991, the parties disagreed about practically every fact, except that the accident did occur and that Barlett suffered some injury. The jury returned a $6 million verdict, allocating 25% of the fault to the Railroad and 75% to Barlett.

On appeal, the Railroad raises ten points. Four concern the submissibility of parts of Barlett's verdict director. Three deal with Barlett's closing argument. The remaining three address other issues.

II. Barlett's Verdict Director

The verdict director offered by Barlett on the Railroad's liability submitted four alternative claims of negligence in the disjunctive: 1) the Railroad "operated the train at an excessive speed"; 2) the Railroad failed to sound an adequate and timely warning; 3) the Railroad failed to maintain the right-of-way clear of vegetation; and 4) the "flashing lights" were not operating, and the Railroad failed to stop or slow down. The Railroad claims there was insufficient evidence on all these submissions except the second, failure to sound a warning. The Railroad also asserts federal preemption.

A. Preemption

The Railroad claims that the common law claim of excessive speed is preempted by federal law, citing 45 U.S.C. § 434, and 49 C.F.R. § 213.9.

The United States Supreme Court recently ruled that, while some state claims based on dangerous conditions at crossings are allowed, federal law preempts state common law claims based on excessive speed. CSX Transportation, Inc., v. Easterwood, 507 U.S. 658, ---- - ----, 113 S.Ct. 1732, 1738-44, 123 L.Ed.2d 387 (1993). Thus, while a railroad may be liable for failure to remedy unsafe conditions, it may not be liable for traveling at an unsafe speed in areas with such conditions.

To the extent that Barlett's allegation is that the Railroad had a common law duty not to speed, he fails to state a claim. While the parties dispute whether this point was preserved at trial, this dispute is irrelevant because failure to state a claim can be raised for the first time on appeal. Rule 55.27(g)(2).

B. Submissibility

The Railroad argues that there was insufficient evidence to support the submissibility of the claims based on: 1) vegetation; 2) the failure of the flashing lights; and 3) the excessive speed. In reviewing submissibility, this Court takes the evidence in the light most favorable to the party submitting the instruction, and makes all reasonable inferences in support of that party. Oldaker v. Peters, 817 S.W.2d 245, 251-52 (Mo. banc 1991); Delisi v. St. Luke's Episcopal--Presbyterian Hospital, Inc., 701 S.W.2d 170, 173 (Mo.App.1985).

1. Vegetation

The Railroad argues that the evidence was insufficient to demonstrate that the vegetation--a line of trees parallel to the track--obstructed the view of plaintiff Barlett. The evidence is clearly sufficient. Photographs demonstrated that a driver will not see a train approaching the crossing until the driver passes the line of trees. The driver of the car behind Barlett testified that her view was obstructed. The Railroad engineer testified that he could not see Barlett's car until it passed the trees. From these facts, a jury could reasonably infer that the vegetation obstructed Barlett's vision.

The Railroad also argues that the instruction was contrary to Barlett's trial theory. While at times Barlett focused on the engineer's point-of-view, this focus was not exclusive. The verdict director on vegetation was not inconsistent with Barlett's trial theory. In addition, the Railroad did not raise this objection in its motion for new trial or at trial. Therefore, it is not preserved for review. Rule 70.03.

2. Flashing Lights

The Railroad contends that the evidence was insufficient to show its knowledge that the lights were not working, or to prove causation. Several witnesses testified that they neither saw the lights flashing nor heard the bells ringing. Extensive testimony demonstrated that the train crew had a duty to be on the lookout for the lights, or that the crew actually did look at the lights. From this testimony, the jury could have believed that the lights were not flashing, and that the crew knew or should have known this fact.

In arguing causation, the Railroad misinterprets the theory behind this submission. The flashing lights are intended to warn drivers that a train is coming. If the lights are not working, then the train has a duty to provide that warning by alternate means, such as lowering its speed so drivers see the train for a longer period of time before the train blocks the entire crossing. As such, the failure to "slacken the speed" contributed to cause the collision.

The decision in Easterwood does not clearly prohibit this submission. Where a specific, individual hazard exists, a train has a duty to slow down or stop. See Easterwood, 507 U.S. at ---- n. 15, 113 S.Ct. at 1743 n. 15. Easterwood does not directly address whether this duty is preempted. Id.

The evidence was sufficient to support submission of the failure of the flashing lights.

3. Excessive Speed

The Easterwood decision holds that federal law and regulations preempt a common law claim of excessive train speed, which is defined as "traveling too quickly given the 'time and place.' " Easterwood, 507 U.S. at ---- n. 15, 113 S.Ct. at 1743 n. 15. Easterwood did not address whether federal law preempts local speed limits. At trial, the evidence indicated that the train was violating the speed limit of 25 m.p.h. established by a Joplin ordinance. While the Railroad contests the validity of this ordinance, this Court does not need to decide its validity because the evidence does not support causation under any theory.

The first potential theory of causation put forth by Barlett in this trial was the "mere location" rule. The mere location rule would permit finding causation from evidence that the train's speed at a "remote" point in time "caused" the train to be at the scene of the accident. See Mullis v. Thompson, 358 Mo. 230, 213 S.W.2d 941, 947 (1948).

The mere location rule does not apply to other types of accidents (car and boat), where evidence of speed is only relevant to show the speed immediately before the collision. Hewitt v. City of Kansas City, 761 S.W.2d 679, 680 (Mo.App.1988). This case demonstrates why traditional causation is the better rule. The collision occurred at a relatively busy intersection. In fact, another car was immediately behind Barlett. Thus, if the train had been going slower at a remote point in time, it might well have missed Barlett, but hit the next car.

The mere location rule also violates common sense, leaving causation "open-ended." The mere location rule theoretically allows evidence of train speed over an infinite number of prior runs. While speed at a remote point in time may be a "philosophical" cause of a collision, it cannot be a "legal" cause. The mere location rule cannot be the basis for submitting a claim of violating the speed limit in this, or any future, case.

Alternatively, Barlett contends that causation could be proved under the traditional theory of causation. At the ordinance speed limit of 25 m.p.h., a train would block the entire intersection in less than a second after the time it passed the end of the tree line. Thus, if the train were going the speed limit, a driver would have inadequate warning time to avoid an accident. Likewise, no evidence showed that a train could have stopped at that speed in time to avoid this collision. Thus, under the facts of this case, even though a violation of the Joplin speed limit could be shown, it would be impossible to prove causation.

III. Arguments

The Railroad claims the trial court erred by allowing three specific statements in closing argument. Because the Railroad did not object to the third statement--that the Railroad could have had a psychologist examine Barlett--the claimed error on that statement was not preserved for appeal. Cf. Rule 78.08; Rule 84.13.

Of the remaining two statements, one concerned the submission on vegetation. In this argument, Barlett's attorney stated that the Railroad had to keep the right-of-way clear for as much as it owned. The Railroad objects that this misstated the law. This objection can be construed in one of two ways: either that the argument misstated the actual law, or that the argument misstated the instructions. This distinction is important because Barlett's argument was more favorable to the Railroad than the instruction, which did not expressly limit the Railroad's duty to land that it owned. The Railroad did not preserve this "error...