Carter v. Norfolk & Western Ry., 48497

• Decision Date: 18 March 1986
• Docket Number: No. 48497,48497
• Citation: 708 S.W.2d 306
• Court: Missouri Court of Appeals
• Parties: Mark CARTER and Grace Carter, Plaintiffs-Appellants, v. NORFOLK & WESTERN RAILWAY and Edward Murry, Defendants-Respondents.

Page 306

708 S.W.2d 306

Mark CARTER and Grace Carter, Plaintiffs-Appellants, v. NORFOLK & WESTERN RAILWAY and Edward Murry, Defendants-Respondents.

No. 48497.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 18, 1986.

Motion for Rehearing and/or Transfer

Denied April 15, 1986.

Application to Transfer Denied

May 13, 1986.

Lewis Steven Goldblatt, St. Louis, for plaintiffs-appellants.

Albert E. Schoenbeck, St. Louis, for defendants-respondents.

STEPHAN, Chief Judge.

Plaintiffs, Mark Carter and his mother, as next friend and legal guardian responsible for his medical expenses, appeal from a judgment entered on a jury verdict in favor of defendants, Norfolk and Western Railway and the general manager of its western region, Edward Murry. We reverse and remand for a new trial on the ground that a withdrawal instruction was erroneously given which had a prejudicial effect on the plaintiffs' case.

On May 15, 1979, sixteen-year-old Mark Carter and three of his friends hopped a ride on Norfolk and Western's transfer train MO5B. When the train began to gain speed, Mark attempted to jump off. However, he slipped under the wheels of the train and suffered traumatic amputation of both legs in addition to other injuries. The train was involved in switching operations at the time of the accident. The train, composed of 124 railroad cars of various types, was approximately 6,150 feet long and was operated by two crewmen located in the locomotive. Mark and his friends boarded near the rear of the train. The train had no caboose, nor were there any other employees near the train at the time of the accident. Norfolk and Western did not use cabooses on trains involved in switching operations. At the time of the accident, the conductor and rear brakeman, who would ordinarily occupy a caboose, were travelling eastwardly on Interstate Highway 70 to meet the train at its destination, the Luther yards in St. Louis.

Norfolk and Western's switching area is located within a residential area of North St. Louis County and in close proximity to Airport School in Berkeley, Missouri, where the boys had been playing basketball before turning their attention to the train. The switching area was not fenced in or otherwise separated from the school or residences. Substantial evidence was received at trial that the railroad was aware that children regularly played on or near the trains and often hopped onto trains just as Mark and his friends had done. There was also compelling testimony from the man who was the conductor of the train that a manned caboose was the only practical means of watching for children climbing on and off a train of such length. There was also evidence that, had the children's activity been observed, the train could have been stopped or prevented from moving by the brake system in a caboose.

At the outset of the trial, a motion in limine was granted at defendants' behest excluding all evidence concerning "Any labor dispute or labor claim concerning cabooses not being used on Norfolk and Western trains." Although the matter of a labor dispute was avoided during the trial, evidence of the efficacy of crewmen in a caboose to observe trespassers and to take steps to avoid injuring them was received, as set out above. Nevertheless, at the conclusion of the trial, the court gave the following withdrawal instruction: "The matter of there not being a caboose on train MO5B is withdrawn from the case and you are not to consider such matter in arriving at your verdict."

Plaintiffs' verdict directors were based on defendants' primary negligence of failing to keep a careful lookout after they knew or should have known, prior to the date of this accident, that children regularly were on and about the tracks. Plaintiffs also sought instructions on the doctrine of comparative fault, which the trial court refused, giving instead the standard contributory negligence instructions. ¹ M.A.I. 32.01.

On appeal, plaintiffs urge that the trial court erred (1) in withdrawing from the jury's consideration the absence of a caboose, (2) in refusing to give the tendered comparative fault instruction, and (3) in excluding evidence of custom and practice relating to railroad switching and transfer operations in the St. Louis area.

Where a railroad has notice that pedestrians regularly trespass on its right of way in a particular area, it has a duty to use ordinary care to maintain a lookout for them, under the public user exception. Frye v. St. Louis, I.M. & S. Ry. Co., 200 Mo. 377, 98 S.W. 566, 573 (1906); Counts v. Kansas City Southern Railway Company, 340 S.W.2d 670, 674 (Mo.1960); Henderson v. Terminal Railroad Association of St. Louis, 659 S.W.2d 227, 232 (Mo.App.1983). The rationale for the exception is that, though a railroad may be entitled to a clear track, it has no right to expect one where it has notice of public use. Frye, supra, at 573. The public user exception also applies to children who play on or about standing railroad cars. Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858, 866 (1936).

In the present case there was considerable evidence that Norfolk and Western had both actual and constructive notice of children playing on or about the tracks and railroad cars. Plaintiffs' Exhibit 54, admitted into evidence without objection, contains copies of letters sent by Norfolk and Western to the parents of children found on railroad property in the area between the Berkeley Yard and Luther Yard. The letters report instances where children were found climbing on rail cars, running across the top of rail cars, crawling under box cars, and crossing between a cut of cars during live switching operations. In addition, several employees of Norfolk and Western testified to the presence of children in this area. Brakeman Carl R. Smith stated it was common knowledge that children played around train equipment. Assistant trainmaster Robert E. Cleaton said he had seen children walking along the tracks, and had received complaints concerning children playing on trains. Richard J. Peery, conductor of the train involved here, testified that children climbed the ladders on stopped trains, and also hopped trains at the rear of Airport School. He stated he had complained to a supervisor about children hopping trains. Peery also related two specific incidents which he witnessed. On one occasion he observed ten children on a stopped train, which delayed the movement of the train. The other occasion was on May 15, 1979, shortly before Mark's accident. While Peery was waiting for the brakes to release during a coupling at Brown Road, two children got on the train. He asked them to get off because the train could move at any moment. They then crawled under the train and walked south on Brown Road. After the coupling was completed, Peery boarded the railroad's van and proceeded eastwardly on Interstate Highway 70, as noted above.

Gerald L. Orr, engineer of a train designated N. & W.1, testified that on May 15, 1979, his train was travelling in a westwardly direction on tracks a short distance south of the tracks occupied by MO5B. Before N. & W.1 reached Berkeley, Orr observed three boys alight from the stopped MO5B and cross the tracks in front of his train. Other testimony included that of nearby residents who testified that children regularly hopped rides on trains in the area and that the railroad had been notified of such ongoing conduct.

The evidence of public use by children was more than sufficient to impose upon Norfolk and Western a duty of lookout under the facts of this case. Wilson v. Missouri-Kansas-Texas Railroad Company, 595 S.W.2d 41, 44-46 (Mo.App.1980). See also, Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858, 866 (1936) where, quoting with favor from an earlier case, the Court said:

If children have been playing in, upon, and around the standing cars in a switchyard, so continuously and for such length of time that the employees of the railroad should have known of this user, then there is imposed upon the railroad the duty of keeping a reasonable lookout for such children.

As indicated by the foregoing from Burnam, a railroad's duty or lack thereof is not determined by the status of the plaintiff, but rather by the railroad's knowledge, actual or constructive, of the plaintiff's presence. In Savage v. Chicago, R.I. & P. Ry. Co., 328 Mo. 44, 40 S.W.2d 628 (1931), the plaintiff was an employee of a railroad other than the defendant. Plaintiff and his fellow employees customarily walked across tracks used by defendant on their way to and from work at all hours of the night and day, and defendant was aware of this practice. Plaintiff was struck by one of defendant's locomotives which was being operated at night without a headlight. The court affirmed judgment for plaintiff, in spite of rejecting his claim that he was owed a duty of warning because he was an invitee. The court stated:

To reach this decision we do not think it is necessary to find that plaintiff was an invitee. As was said in Ahnefeld v. Wabash Railway Co., 212 Mo. loc. cit. 300, 111 S.W. 95, 99: "It is immaterial as to how you denominate the persons who use the track, whether it is said they were invited by the railway company or whether it is said they were licensees, or whether it was a habit and custom to use the track, or whether you denominate them as trespassers. The controlling fact is whether there has been such use of the track as a passway or footpath by the public as to afford reasonable grounds to the operatives of the train upon such track to expect or anticipate the presence of persons so near the railroad track as to endanger them." Upon a showing of such use the court said: "Followed the just, fair, and reasonable rule that, under such circumstances, it would be the duty of the operatives to keep a lookout for the presence of such persons, and to use ordinary care and caution in avoiding any...