Chaney v. Wabash R. Co.

• Citation: 422 S.W.2d 349
• Decision Date: 11 December 1967
• Docket Number: No. 2,No. 52431,52431,2
• Parties: John CHANEY and Lucretta Chaney, Appellants, v. WABASH RAILROAD COMPANY, Respondent
• Court: Missouri Supreme Court

Page 349

422 S.W.2d 349

John CHANEY and Lucretta Chaney, Appellants, v. WABASH RAILROAD COMPANY, Respondent.

No. 52431.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1967.

Motion for Rehearing or for Transfer to Court En Banc Denied

Jan. 8, 1968.

Charles N. Bono, Smith, Schlozman & Shapiro, Robert G. Smith, Joseph R Schlozman, Lee S. Shapiro, Kansas City, for appellants.

James H. Ottman, John C. Dods, Kansas City, for defendant-appellant. Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.

BARRETT, Commissioner.

This action in two counts is to recover damages for the plaintiff husband's personal injuries and the wife's loss of 'services, society, association and companionship.' The husband, John Chaney, was injured on December 7, 1962, when the 1961 Pontiac sedan he was driving on Highways 6 and 13 in Daviess County ran into an empty cattle car stopped on the highway crossing. A jury awarded the husband $75,000.00 damages and the wife.$1000.00. In its alternative motion for judgment or for a new trial the Wabash Railroad set forth twenty-seven specifications of error together with numerous specific subdivisions of alleged error. The court instead of basing its ruling on the alternative motion made the order that 'the motion of the defendant to set aside the verdict and the judgment entered thereon for the plaintiffs, and for judgment for the defendant in accordance with defendant's motion for directed verdict, is granted on the grounds stated in Paragraphs 1, 2 and 3 of defendant's motion for directed verdict at the close of all the evidence, and judgment for the defendant may be entered accordingly.' The court further ordered 'in the event that judgment for the defendant to be entered herein is reversed, the alternative motion of the defendant for a new trial is denied.' The first three grounds of the motion for a directed verdict are that (1) 'The evidence failed to establish a claim upon which relief can be granted against this defendant.' (2) 'The evidence failed to establish that the defendant was negligent in any of the particulars alleged in Plaintiffs' Second Amended Petition' and (3) 'The evidence established that plaintiff John Chaney was guilty of contributory negligence as a matter of law.' Upon the entry of the noted order both the plaintiffs, Mr. and Mrs. Chaney, and the defendant, Wabash Railroad, filed notices of appeal and in their respective capacities the parties have filed five briefs in this court in which they raise numerous questions concerning the rejection and admissibility of testimony, excessiveness of the verdict and the correctness of instructions. Nevertheless, the parties appear to tacitly concede that the truly meritorious question is whether from the circumstances a jury could reasonably find that the railroad was negligent, particularly whether under all the proof it was a permissible inference that for any reason the railroad crossing was 'particularly dangerous' (Coffman v. St. Louis-San Francisco Ry. Co., Mo., 378 S.W.2d 583, 586) as that term has been defined in numerous Missouri cases. Annotation 84 A.L.R.2d 813. And at the outset several cases cited by the parties must be put aside, for example: 'Cases involving injury as the result of a collision between a road vehicle and a moving train have been excluded even where it appeared that the train was moving very slowly, since even slight movement is apt to call a motorist's attention to the fact that the crossing is obstructed.' 84 A.L.R.2d l.c. 819. In short, the case is to be strictly confined to the situation presented, railroad cars standing on a highway crossing collided with by an automobile.

The plaintiff, John Chaney, age 41, lives in Overland Park, Kansas, southwest of Kansas City, Missouri. On December 7, 1962, Chaney's sister-in-law called from the Kansas City Airport at 1 a.m., and being unable to rent an automobile, asked him to drive her to her father-in-law's home three miles east of Jamesport, Missouri. Chaney drove to Kansas City, picked up his sister-in-law and drove up Highway 69 to Cameron to an intersection with Highway 6 and then to Gallatin and to Jamesport. He stopped at their destination long enough for a cup of coffee and was on the return trip over the same route home at 5 a.m and approached the intersection of Highways 6 and 13 two or three miles east of Gallatin at a speed of 50 to 55 miles an hour. While Chaney says that he had not previously been over this particular highway at night, other than on the trip to Jamesport four hours earlier, he had traveled over this route in the daylight hours two to four times a year over a period of twenty years and knew that there were railroad tracks across the highway in the vicinity of Gallatin but he 'thought that was a siding for this grain elevator.' He said, 'I wasn't familiar with the crossing. I was just familiar with the general vicinity.' It was cloudy and dark but there was no moisture and at one point in his testimony Chaney said that there was nothing to distract his attention and there was no other motor vehicular traffic in either direction. While the degree is not given Highways 6 and 13 approach the railroad tracks on a long arc and 500 feet east of the crossing there is a bridge and beyond the bridge, 300 feet from the crossing, there is a reflectorized State Highway Department sign noting approach to a railroad crossing. Admittedly there were no railroad signs or signals other than the usual wooden crossbucks and the one facing Chaney was not reflectorized. And while the Wabash Railroad's mixed train (the fifth car from the engine was a coach thought to be lighted) had occupied the crossing for several minutes no members of the train crew had been assigned the duty of looking out for or 'flagging' traffic and no member of the train crew was at or on the crossing. Chaney says that with his lights on 'high beam' he saw the bridge and after crossing it saw 'several signs,' some 'reflective,' but he did not 'recall' seeing any sign warning of a railroad crossing and he did not see the train on the crossing, particularly the tenth car in the consist, an empty stock car directly across the highway. He says that the first and only thing he saw, aside from the bridge and signs, 'was the wheels of the train.' When he saw the wheels of the boxcar, 180 to 200 feet from the crossing and traveling at a speed of 50 to 55 miles an hour he immediately applied his brakes but nevertheless 'slid down the highway into the train.' In this connection he says that 'it takes a little time' and that by the time the brakes took effect he was a little...