Davenport v. Wabash R. Co.

• Decision Date: 31 December 1968
• Docket Number: No. 53849,53849
• Citation: 435 S.W.2d 641
• Parties: Elsie A. DAVENPORT, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, Eunice Harold Potter and Charles T. Begby, Appellants.
• Court: Missouri Supreme Court

Page 641

435 S.W.2d 641

Elsie A. DAVENPORT, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, Eunice Harold Potter and Charles T. Begby, Appellants.

No. 53849.

Supreme Court of Missouri, En Banc.

Dec. 31, 1968.

Spencer, Hines & Petri, Columbia, for respondent.

Terence C. Porter, Columbia, for appellants; Welliver, Porter & Cleveland, Columbia, of counsel.

HENLEY, Judge.

Action by a widow for damages for the wrongful death of her husband arising out of a grade crossing collision involving the decedent's eastbound automobile and a southbound Wabash Railroad Company (hereinafter Wabash) mixed passenger and freight train in Boone County, Missouri. Verdict and judgment were for plaintiff and against the defendants for $11,542. Defendants' after-trial motion was confined to a motion to set aside the verdict and judgment, and for judgment in accordance with their motion for directed verdict. The motion was overruled and defendants appealed to the Kansas City Court of Appeals. That court reversed the judgment, holding that plaintiff's decedent was guilty of contributory negligence as a matter of law. We ordered the case transferred to this court on application of plaintiff-respondent. Our determination of the case is the same as though it were here on original appeal. Article V, § 10, Constitution of Missouri, V.A.M.S.; Civil Rule 84.05(h), V.A.M.R. We reach the same result as did the Court of Appeals, for the same reason.

The case was submitted to the jury on two specifications of primary negligence, and contributory negligence. Plaintiff's submission was: (1) that the crossing was an unusually dangerous and hazardous one which the Wabash had negligently failed to make reasonably safe for motorists traveling east; and, (2) that defendants had negligently failed to ring a bell or sound a horn or whistle as required by § 389.990, RSMo 1959, V.A.M.S. Defendants' submission was that plaintiff's decedent had negligently failed to keep a careful lookout.

The issues on appeal relate to (1) whether plaintiff made a submissible case; and (2) whether plaintiff's decedent was guilty of contributory negligence as a matter of law.

The first point briefed by defendants is that the court erred in overruling their motion for directed verdict at the close of the whole case and in overruling their after-trial motion for judgment in accordance with the motion for directed verdict, because plaintiff's decedent was guilty of contributory negligence as a matter of law.

The burden is on defendants to prove that plaintiff's deceased husband was guilty of negligence contributing to his death. The jury could believe or disbelieve defendants' evidence on that issue, even though uncontradicted; therefore, we ignore their evidence to the effect that the crossing was not dangerous or hazardous, that the train's whistle or horm and bell were sounded at a point one-quarter mile north of the crossing and continued to sound from that point through the crossing, and other evidence produced by defendants tending to prove plaintiff's decedent was contributorily negligent. It follows that proof of deceased's negligence must appear from evidence adduced by plaintiff or from evidence which she concedes to be true, or by proof of facts and circumstances by defendants which leave no room for other reasonable inference, or from a combination of them, in order that a court correctly may declare plaintiff's decedent contributorily negligent as a matter of law. Pipes v. Missouri Pacific Railroad Company, Mo., 338 S.W.2d 30, 33(2--4), and cases there cited. We examine the evidence in the light of the above rule.

The following facts are not disputed. The accident occurred at about 12:50 P.M., October 19, 1963, a clear, dry, warm Saturday afternoon, near Brown Station approximately ten miles north of Columbia at a point where a public gravel road crosses the Wabash tracks some fifty-eight feet east of State Route B. The train was due to arrive in Columbia near the noon hour; hence, at the time of the collision it was at least 50 minutes late. In this area the railroad tracks run generally north-south; Route B runs parallel to the tracks and, as indicated, is west of the tracks; the level of the tracks at the crossing is ten or twelve feet higher than the surface of Route B, thus an automobile approaching the crossing from Route B drives up a 15 to 20% grade. The gravel road serves several families living east of the railroad; it begins at Route B, runs east up to and crosses the tracks and then turns to run south for an undisclosed distance before it again turns back east toward the home and farm of plaintiff's family, approximately two miles east of Brown Station. Immediately north of the crossing the tracks run through a shallow 'cut',; south of the crossing the tracks are on a 'fill.' North of the gravel road, between Route B and the tracks, the surface of the ground is uneven and is above the surface of the road; from the top of the 'cut' near the tracks the terrain slopes, unevenly, downward and west toward Route B; on the date of the accident this area was covered with weeds and grass part of which varied in height from three to five feet. The crossing itself is constructed of heavy flat planks or timbers approximately fifteen feet long laid lengthwise with and secured between the rails and one such plank on the outside of each rail. Pictures introduced in evidence show that the two planks next to and on each side of the west rail have deteriorated and begun to break up and break off at one end, apparently due to wear and the elements. The crossing was marked only with the standard railroad crossing sign, commonly known as a 'cross-buck'; there were no other devices to give warning of the tracks or the approach of a train. North of the crossing approximately 350 feet the tracks begin to curve gradually to the northeast. The deceased, Bruce E. Davenport, age 47, was familiar with this crossing, having crossed it almost daily for eighteen years. At the time of the accident Mr. Davenport was en route from Columbia to his home; he was alone in his automobile; he traveled north on Route B, turned to his right (east) onto the gravel road and drove upgrade toward the crossing and into collision with the southbound train. The point of impact on the vehicles was the right front corner of the Wabash engine and the left from corner of the automobile. Three eye-witnesses survived the collision: Charles T. Bagby, the engine fireman sitting at its west window, and Mr. and Mrs. William Timbrook, who were driving south on Route B in a pickup truck, all of whom testified on behalf of defendants.

Plaintiff and defendants introduced into evidence several pictures showing the crossing, the gravel road, and the area and character of the terrain north of the road between Route B and the track. They were received as fairly representative of the situation as it existed at the time of the collision.

The following witnesses testified on behalf of plaintiff.

George Grazier, a member of the Missouri Highway Patrol, investigated the accident at the scene within a few minutes after the collision. His description of the crossing, the surrounding area, and its condition as to the presence of grass and weeds agrees with that above stated, except that he did not know the condition of the planks between and outside the rails. He testified, on direct examination, that taking into consideration the existence of the weeds as described, it was his opinion that a person approaching the crossing up this incline in an automobile like plaintiff's decedent was driving could see a train 350 feet north of the crossing. He testified, on cross-examination, that from a point 350 feet north of the crossing a southbound train would not at any point pass out of the view of a driver of an automobile who has turned onto the gravel road and is driving east up this incline toward the tracks; that the weeds would obstruct the view of only a part of a train, that part '* * * probably * * * the height of the wheels or just a little higher * * *', and '* * * you would still be able to see * * *' the rest of a train. He further testified, on direct examination, that the engineer and fireman told him the train '* * * was whistling * * *' and '* * * the horn and bell were operating * * *.' The witness identified as fairly representing the scene several photographs received in evidence; some of these (defendants' exhibits) show, from different points on the gravel road, a southbound train in plain view at varying distances north of the crossing.

R. A. Dorr, employed as a Railroad Safety Supervisor by the Missouri Public Service Commission, investigated this accident at the scene six days after the accident. His description of the crossing and the surrounding area is essentially the same as that above stated. He testified that the tracks are in '* * * a very slight cut, probably a couple of feet (deep) on the north side * * *' of the crossing; that there is a 'bank of earth' north of the gravel road between the tracks and Route B; that the crossing, as indicated by the planks laid lengthwise with the rails, is fifteen feet wide, but that they have broken off to about thirteen feet; that the crossing '* * * would be awful close for two cars' to pass; that there is a group of trees north and east of the crossing; that there were weeds three or four feet high on the bank north of the gravel road between the tracks and Route B. He further testified, on direct examination, that in his opinion '* * * someone in an automobile approximately 25 feet * * * west of the track going up that incline * * *' could see '* * * a train such as this * * *' 600 or 700 feet north of the crossing; that at 50 feet west of the tracks you could see a...