Black v. Kansas City Southern Ry. Co.

• Citation: 436 S.W.2d 19
• Decision Date: 31 December 1968
• Docket Number: No. 52371,52371
• Parties: Charles K. BLACK, Respondent, v. KANSAS CITY SOUTHERN RAILWAY CO., a Corporation, Appellant.
• Court: United States State Supreme Court of Missouri

Page 19

436 S.W.2d 19

Charles K. BLACK, Respondent, v. KANSAS CITY SOUTHERN RAILWAY CO., a Corporation, Appellant.

No. 52371.

Supreme Court of Missouri, En Banc.

Dec. 31, 1968.

Thomas E. Deacy, Jr., Joseph A. Sherman, Joseph W. Amick, Deacy & Deacy, Kansas City, for defendant-respondent, Charles Glen Fowler.

Richard S. Righter, Robert D. Youle, William H. Bates, David R. Smalley, Kansas City, for defendant-appellant Kansas City Southern Railway Co.; Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.

I. Lee Kraft, Arthur H. Stoup, Solbert M. Wasserstrom, Kansas City, for plaintiff-appellant Charles K. Black.

STORCKMAN, Judge.

The plaintiff Charles K. Black sued Charles Glen Fowler and the Kansas City Southern Railway Company for $70,000 for personal injuries received when an automobile owned and operated by the defendant Fowler and in which plaintiff was a passenger collided with a train of the defendant Railway Company at a grade crossing in the State of Kansas. The verdict and judgment was for the plaintiff and against defendant Railway Company for $25,000 and in favor of the defendant Fowler. The defendant Railway Company, herein sometimes referred to as the Railroad, appealed from the judgment against it and plaintiff appealed from the judgment in favor of defendant Fowler.

The appeals were heard twice in division and then transferred to the court en banc. Prior to the hearing en banc, the plaintiff dismissed his appeal from the judgment in favor of the defendant Fowler. Therefore, on the present submission, we are concerned only with the Railroad's appeal. In general the Railroad's contentions are that the plaintiff failed to make a submissible case, that there was no showing of proximate cause, that the plaintiff was guity of contributory negligence as a matter of law, that the trial court erred in the giving and refusal of instructions to the jury, in permitting the plaintiff to amend prior to trial, and in refusing to grant a new trial because one of the jurors failed to make a full disclosure on the voir dire examination of the panel. The parties pleaded the law of Kansas as controlling. The plaintiff's verdict-directing instruction in the alternative submitted two theories of negligence, either that the Railroad failed to sound a timely warning or that it failed to maintain its right of way so as to allow an unobstructed view to oncoming motorists of the movement of its trains approaching the crossing. Portions of a previous opinion rendered in Division One are incorporated herein without the use of quotation marks.

The accident giving rise to this law suit occurred in Kansas while Mr. and Mrs. Charles Glen Fowler and the plaintiff were en route from Arcadia, Kansas, to Grand Lake in northeast Oklahoma. The Fowlers lived in Arcada where Mr. Fowler was a banker. They kept a boat on Grand Lake and went there nearly every summer weekend as they had been doing for over twenty years taking the route traveled on this occasion. Dr. Black was a dentist in Kansas City, Missouri, with a part-time office in Arcadia. On Saturday, June 29, 1963, he had gone to Arcadia about noon and during the afternoon had worked in his office. His family was already at their summer place on Grand Lake. He was also familiar with the route taken, having driven it frequently. Dr. Black's 1957 Chevrolet overheated on the trip to Arcadia and he undertook to have it repaired but the repairs could not be completed in time for the trip to Grand Lake so he and the Fowlers arranged to go to Grand Lake together in the Fowler car.

Dr. Black testified that he and Glen Fowler each had a drink of bourbon whisky before they left the garage in Arcadia about 5:30 p.m. Glen Fowler was driving his 1959 Cadillac Sedan. Mrs. Fowler sat in the middle of the front seat and the plaintiff was on the right side. A black Labrador retriever belonging to the Fowlers was in the rear seat. The trip began on U.S. Highway 69 and continued on that road to its junction with K--26 and then south on K--26 to where the collision occurred about 6:00 p.m. at a grade crossing of the Kansas City Southern tracks and K--26 about 40 miles from Arcadia. At a point about 1 1/2 miles north of the grade crossing, Fowler passed a southbound pickup truck driven by Ott Martin. Mr. Martin judged the speed of the Fowler car at this point to be 'around 65', and his wife estimated it to be 'between 60 and 70'. There was evidence that Fowler drove the 40 miles from Arcadia in about 30 minutes. Dr. Black who was used to driving his 1957 Chevrolet testified that he asked Mr. Fowler how fast he was driving and Fowler replied 80 miles per hour; he then told Mr. Fowler that they were just a short distance from a railroad crossing and Fowler replied that he was doing 80 but everything was under control; Mrs. Fowler then spoke up and said, 'Yes, Glen, you are driving too fast'; this conversation took place a few seconds before the train came into view and the collision occurred. In her testimony Mrs. Fowler denied that any such conversation took place.

The railroad tracks in question are part of a branch line between Pittsburg and Baxter Springs. South of the crossing the tracks are on the west side of K--26 and run generally north and south until a short distance south of the crossing where they curve to the east and cross the highway from southwest to northeast. K--26 is a north-south highway and is straight and level for some distance north of the crossing. Dr. Black and the Fowlers were all familiar with the crossing; it was marked by railroad crossbucks and highway signs visible for three-quarters of a mile. Dr. Black testified that as the Cadillac approached the crossing he looked in the direction from which the train came and saw the diesel engine come into view from the southwest when the automobile was about 350 to 400 feet north of the crossing. The train consisted of a general-purpose-type locomotive, two boxcars and a caboose which made a daily run from Baxter Springs to Pittsburg and return. The locomotive was approximately 58 feet long and each of the boxcars 50 feet. The train was moving at 20 miles per hour and did not change speed until the collision occurred. The fireman and the head brakeman on the west side of the locomotive first saw the Cadillac when it was 350 to 400 feet north of the crossing traveling 60 to 70 miles per hour. The front of their engine was then about 20 feet from the west shoulder of the highway.

There was no clear-cut evidence as to when Mr. Fowler saw the train and started to apply his brakes. He did not testify. Dr. Black testified that he remembered nothing of the actual collision and the events leading up to it after he saw the locomotive come into view. Mrs. Fowler testified that her husband applied the brakes as soon as the train appeared and she exclaimed that they were going to hit the train; that her husband turned the automobile to the right alongside the tracks; it went between the track and the crossbuck post and struck the rear step of the second freight car behind the engine and the front of the caboose. The impact wrecked the front of the Cadillac, especially on the left side, and uncoupled the caboose from the adjoining boxcar and broke the airhose thereby throwing the train into emergency braking. The train came to an emergency stop about 400 feet east of the highway. The caboose, separated from the rest of the train by the force of the collision, stopped about 100 to 200 feet east of the highway.

The Fowlers and Dr. Black were taken by ambulance to a hospital in Baxter Springs. Mr. Fowler was carried on a stretcher. The plaintiff testified that he also occupied a stretcher alongside Mr. Fowler, but there was testimony that he was standing and walking about after the accident and that he rode to the hospital with Mrs. Fowler in the front seat of the ambulance.

Clayton Carlson, a member of the Kansas Highway Patrol, arrived at the scene a few minutes after the collision. He testified that he found skid marks that led up to the point of impact. Actual noticeable skid marks began 122 feet from the crossing. The distance from the beginning of the skid marks to the point of impact was 137 feet. The skid marks started in the right lane of the highway and went off onto the right shoulder about 46 feet from the point of beginning. The maximum speed limit on K--26 under Kansas law was 70 miles per hour. From information obtained by Patrolman Carlson, it appeared that the accident occurred at 5:55 p.m. and he arrived at 6:04. He took pictures which were introduced in evidence; he found a picnic-type plastic ice bucket which contained ice cubes and water which had a brownish color and an odor that smelled like alcoholic beverage. There was an empty coke bottle in the container. The patrolman also testified with respect to the vegetation in the northwest segment of the intersection. Other evidence will be referred to in connection with the questions presented.

The Railroad's first contention is that the trial court erred in refusing to direct a verdict for the defendant Railway Company because the evidence was insufficient to support a verdict for the plaintiff on either of the grounds of negligence submitted We will first consider the submission that the defendant Railroad failed to sound a timely warning. The plaintiff correctly asserts that in reviewing the trial court's ruling of a motion for a directed verdict the evidence must be viewed most favorably to the verdict for the plaintiff, and he is to be given the benefit of all reasonable inferences. Kendrick v. Atchison, T. & S.F.R. Co., 182 Kan. 249, 320 P.2d 1061, 1068(2); Walsh v. Phillips, Mo., 399 S.W.2d 123, 125(2).

The appellant pleaded § 66--2,120 of the Kansas statutes which provides in effect that the whistle of a locomotive engine shall be sounded at least 80 rods (1,320 feet) from the place where the railroad crosses any public road, that it shall...