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

• Decision Date: 10 November 1958
• Docket Number: No. 1,No. 46581,46581,1
• Citation: 318 S.W.2d 331
• Court: Missouri Supreme Court
• Parties: Cecil F. CARAWAY, a Minor, By His Father and Next Friend, John R. Caraway, Respondent, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Appellant

Page 331

318 S.W.2d 331

Cecil F. CARAWAY, a Minor, By His Father and Next Friend John R. Caraway, Respondent, v.The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Appellant.

No. 46581.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 8, 1958.

George L. Gordon, Sam D. Parker, Jack W. R. Headley, Kansas City, for defendant-appellant.

Lyman Field, Rogers, Field, Gentry & Jackson, Kansas City, W. C. Jones, Olathe, Kan., for respondent.

VAN OSDOL, Commissioner.

Defendant has appealed from a $60,000 judgment for personal injuries sustained by plaintiff when plaintiff's northbound 1942 Chevrolet sedan was struck by defendant's passenger train of thirteen coaches drawn by a diesel locomotive moving westwardly at the intersection of the grade crossing of Clare Road and defendant's tracks in Johnson County, Kansas.

Defendant-appellant has assigned error of the trial court in overruling defendant's motion for a directed verdict, and in overruling defendant's after-trial motion for judgment for defendant.It is not contended plaintiff failed to make out a submissible case of negligence of defendant in failing to sound a statutory warning or in failing to sound a reasonably sufficient and adequate warning of the train's approach.Rather it is contended that, under the law of Kansas, plaintiff's evidence established his contributory negligence, and his recovery should be barred as a matter of law.Defendant-appellant also complains that the trial court erred in giving plaintiff's verdict-directing InstructionNo. 1; and that the jury's award was excessive.

Clare Road, a north-south county highway surfaced with loose gravel at the time of the casualty, passes over defendant's double track line which lies in a general northeast-southwest direction; however, as a train from the east (northeast) approaches, passes over and beyond the crossing it traverses a left-hand curve.A 'cross-buck' railroad crossing sign is east of the traveled portion of Clare Road at a point fourteen feet south of the south rail of the south set of tracks; and north of the tracks on the west side of the traveled portion, there is an automatic wigwag signal device approximately thirteen feet high, the device consisting of a round disc with red light and bell so devised as to automatically wag back and forth, display a red light and ring when a train approaches the crossing.

Defendant's two sets of tracks at the crossing are ten feet apart and the rails of each set are four feet eight and one-half inches apart.As stated, the tracks pass the crossing at a curve, and they are 'banked' to accommodate the trains passing through the curve--the south rails of each of the two sets of tracks being approximately six inches lower than the north rails.There is also a dip in the road 'right before you entered on the tracks' and a 'few bumps' south of the crossing.Thick wooden planks are spiked to the ties on either side of the rails of both sets of tracks, except that between the two sets of tracks there is a space surfaced with gravel.South of the south rail for a north-south distance of four or five feet the grade of the highway is level, then the highway lies at a southerly upgrade to a point six hundred feet south of the crossing.

The northbound highway traveler, moving downgrade toward the crossing, passes a farmhouse with large trees on his right some distance south of the crossing, then a small tree at a point approximately seventy feet south of the crossing, and, looking to his right, the highway traveler sees an embankment with vegetation thereon south of and parallel with the tracks.The traveler then moves through the dip and jogs slightly to his left in passing over the two sets of tracks at the crossing.

The testimony of witnesses as to the point from which a northbound traveler may get an unobstructed view of the tracks to the eastward did not vary greatly.A witness testified that standing between the cross-buck sign (fourteen feet south of the south tracks) and the south track one could see down the tracks 'at least 200 feet.'Another witness estimated that one seated in an automobile would have to be 'approximately from 9 to 15 feet' south of the crossing before he could get a clear and unobstructed view to the eastward; and from a point fourteen feet south of the crossing, a person in an automobile could only see 'approximately 150 feet' to the east.Other witnesses estimated an unobstructed view could not be had until one was 'between twelve and not over fifteen feet' from the crossing, or 'I would say ten or twelve feet' from the tracks.

As stated, defendant's train was moving westwardly.It was moving over the south set of tracks.

There was evidence that at approximately 2:30 o'clock in the 'nice' morning of May 21, 1954, accompanied by his friend Jackie Ray Mills, plaintiff Caraway was driving northwardly on Clare Road.The surface of the highway was dry, and plaintiff's automobile was in good mechanical condition.The automobile was moving thirty-five miles an hour as plaintiff started downgrade six hundred feet south of the crossing, at which point he made a light application of the foot brake.He had been over the 'rough' crossing before and, because of its roughness, planned to pass over it at a speed of five miles per hour.The headlights of plaintiff's vehicle, which were on 'high beam,' illuminated the crossing and the wigwag signal device northwest of the crossing.Plaintiff looked at the crossing and the signal device northwest thereof and saw the red light was not burning and the wigwag was not working.Continuing downgrade in nearer approach plaintiff shifted into second gear; he kept his foot on the brake until he almost reached the crossing at which time he was moving five miles per hour, or five to ten, in 'between there.'He couldn't have stopped his car in less than twenty to twenty-five feet.He did not look to the east until the front of his automobile was approximately seven feet from the track.At this point, as stated, he could see about two hundred feet down the tracks to the eastward.He didn't see 'anything coming.'He then looked to the west and saw no eastbound train.Then he moved on down to the crossing, and when the front wheels of his vehicle were on the south set of tracks, he again glanced to the eastward, 'saw a light, and that's it.'

The light was fifty feet east of him.He estimated the train was moving eighty miles per hour.As stated, he had been over the crossing before and knew there was an 'automatic red light wigwag signal there,' and having observed when he first saw the mechanical signal device that the device was not operating, he thought it would be all right to go ahead.He had listened for the whistle of approaching trains, but did not hear any whistle.If the signal device had been working, he would have stopped.

Plaintiff's friend, Mills, testified that he knew there was an automatic signal device at the crossing.He had gone over the crossing several times and he knew the device was 'supposed to have a red light to light up, and it wig-wags back and forth and a bell rings.'At the time of the causalty the device was not working.He was looking and listening and saw and heard nothing to indicate the approach of a train until the front of the automobile was about fifteen feet from the railroad track; he then saw just the headlight of a train about one hundred feet east of the crossing.The automobile was moving about ten miles per hour.He opened the door and 'hollered 'jump."He was able to jump from the car and was not injured.He had seen plaintiff open the door on the left, and 'start to jump' from the vehicle.

The train struck the right side of plaintiff's automobile between the right front whell and the dashboard.The engine and front wheels were severed from the body of the car.The body of the car came to rest in a ditch on the west side of the highway seventeen feet south of the tracks.

Defendant-appellant, supporting the contention of error in overruling defendant's motion for a directed verdict, urges the facts that the automatic signal device was not operating and that plaintiff relied on such fact in attempting to cross did not relieve plaintiff of the duty to look, listen and stop or otherwise make certain no train was approaching before attempting to cross.It is argued that plaintiff's duty under the law of Kansas was to look for an approaching train at that point in his progress toward the crossing from which he could have seen the farthest to the eastward; and that the physical evidence and testimony of witnesses demonstrates plaintiff could have seen the train before moving onto the tracks and could have avoided the collision had he looked, and had he been prepared to stop.On the other hand, plaintiff-respondent asserts plaintiff was not contributorily negligent as a matter of law, and the trial court did not err in overruling defendant's motion for a directed verdict.He argues that under Kansas law while the highway traveler cannot entirely rely on the fact that a mechanical signal device is not in operation at a crossing where such a device is maintained, nevertheless, the presence of such a warning device makes it properly a jury question as to whether plaintiff was contributorily negligent under all of the circumstances.It is argued that plaintiff was not required, as a matter of law, to stop before passing onto the crossing because he was entitled to rely to some extent on the inactive, unlit, silent signal device and, since he did not rely thereon entirely, the question of contributory negligence in the manner in which he looked and listened and negotiated the crossing was for the jury.

As noted, conflicting contentions of the parties are primarily addressed to the question of the effect of the fact that an automatic or mechanical signal device is...