Davis v. Illinois Terminal R. Co.

• Decision Date: 11 June 1956
• Docket Number: No. 45149,No. 1,45149,1
• Citation: 291 S.W.2d 891
• Parties: Verna E. DAVIS, Administratrix of the Estate of Robert F. Davis, Deceased, Appellant, v. ILLINOIS TERMINAL RAILROAD COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 891

291 S.W.2d 891

Verna E. DAVIS, Administratrix of the Estate of Robert F Davis, Deceased, Appellant, v. ILLINOIS TERMINAL RAILROAD COMPANY, a Corporation, Respondent.

No. 45149.

Supreme Court of Missouri, Division No. 1.

June 11, 1956.

Motion to Modify Opinion and Motion for Rehearing Denied July 9, 1956.

B. Sherman Landau, St. Louis, for appellant.

Norris H. Allen and Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

Robert F. Davis was instantly killed when an automobile operated by him struck the side of defendant's freight train at the crossing of defendant's railroad over Illinois State Highway No. 159, near the City of Edwardsville in the State of Illinois. Plaintiff, Verna E. Davis, as administratrix of the estate of her deceased husband, sued to recover the sum of $20,000 for his wrongful death, alleging due care on the part of decedent and the negligent failure of defendant to keep flasher light signals maintained by it at said crossing in working condition as the proximate cause of the fatality. Trial of that issue and defendant's plea that the death of plaintiff's decedent was caused in whole or in part by his negligence in failing to maintain a lookout for the presence of the train upon the crossing resulted in a verdict and judgment for defendant. Plaintiff his appealed, alleging error: (1) in the giving of defendant's instruction on contributory negligence; (2) in the refusal of plaintiff's Instruction 'A', purporting to declare the legal effect of the non-operation of the aforesaid signalling devices; (3) in the refusal of evidence, proffered by her in rebuttal, that the flasher lights failed to operate on occasions other than the time of the fatality; and (4) in the admission of evidence proffered by defendant. Defendant denies the validity of any of plaintiff's assignments of error and asserts that in any event the appeal must fail because the evidence shows as a matter of law that plaintiff's decedent was not in the exercise of ordinary care for his own safety.

Illinois State Highway No. 159 consists of a two-lane concrete pavement extending in a general north-south direction. It intersects at an approximate right angle defendant's east-west single line of railroad at a point nine-tenths of a mile south of the City of Edwardsville. South of the railroad tracks, the highway is practically straight and level for a distance of 500 to 1000 feet. North of the tracks, it is straight for a distance of about 50 feet and there curves westward. The tracks over the crossing are about two feet higher than what would be the normal grade of the highway on either side. This condition is accommodated by a gradual and barely perceptible incline in the grade and pavement of the highway beginning 50 to 75 feet on either side of the tracks.

Pursuant to an order of the Illinois Commerce Commission made in 1935, defendant installed and since 1963 has maintained flasher light signals on both sides of the crossing, the signal on the north side being immediately west of the pavement and the signal on the south side immediately east of the pavement. Each signal consists of two red lights directed northward and two red lights directed southward along the course of the highway. Each of these lights is equipped with a shade directing its beam toward traffic proceeding along the highway. There is also a white 'bull's-eye' light in each signal directed along the railroad tracks, so that the operators of approaching trains may observe whether it is in operation. The signals are designed to operate by the alternate flashing of each of the red lights on each of the pairs when a train approaches within 800 or 1,000 feet of the crossing and to continue to flash until the train has completely cleared the crossing. A general order of the Commerce Commission requires defendant to keep these signals operative for a full period of 24 hours each day.

Decedent and plaintiff, with their two children, had resided for several years in the City of Edwardsville. Decedent was employed as a truck driver (working exclusively in Illinois) by Stahly Cartage Company in East St. Louis. In going to and from his place of employment in East St. Louis and his home in Edwardsville, decedent regularly drove his own automobile over the highway and crossing here involved. His hours of employment were irregular and he often came home at one or two o'clock in the morning and was thoroughly familiar with the crossing and the operation of the flasher lights there maintained.

On the early morning (1:13 a. m.) of July 19, 1954, a clear, dark night, defendant's regularly scheduled (and on time) freight train, consisting of two diesel engines fulling 32 loaded and 5 empty freight cars, with an over-all length of more than 1800 feet, traveling westward, was run upon this crossing at a speed of 10 to 15 miles per hour so that it could be stopped at a switch located about 500 feet west of the crossing, where a brakeman, after the train had stopped, would throw a switch permitting the train to change to and proceed on a northbound track. In this operation the front end of the train overran the switch a distance of 50 or 60 feet before coming to a stop. This placed the eleventh car from the front of the train on the crossing and the remainder of the train (26 cars) to the east of the crossing. The train had remained in this stopped position for approximately one and one-half minutes, the time required for the brakes to release, before the engineer began to back it up at a rate of two or three miles per hour. It had moved backward 12 to 30 feet when decedent's automobile, headed northward on Highway 159, ran violently into the boxcar obstructing the crossing. The speed of the automobile forced its front end under the boxcar and tore loose the braking equipment affixed to the boxcar, which caused an automatic application of the train's emergency brakes, stopping it within a few feet. The engine of the automobile was torn loose and came to rest beneath the train. A wheel was detached from the automobile, caught on fire, and rolled out onto the highway north of the train. The decedent was thrown from the automobile and a part of it came to rest upon him. The automobile was so broken and torn apart that when the parts were assembled they constituted a pile of junk.

In his opening statement to the jury, counsel for plaintiff said, 'These signals, as the evidence will show, were intermittently going out of order. They were out of order as far as a couple of years before this. They were out of order as close--', at which point counsel for defendant interposed an objection, to which the court responded, '* * * that would be too remote, but if you have evidence that it was off and on and continuously up until the time of the accident, it might go as notice to the company. On that theory, it will be admissible, but if it is just the one instance, the two years, the objection will be sustained.'

Two motorists, William Mayfield and James Bruce, testified in behalf of plaintiff: Immediately prior to the collision, while en route to their homes in Paducah, Kentucky, they were traveling southward toward the crossing on Highway 159 in the rear of a southbound automobile. Shortly before reaching the crossing, the automobile in front of them made a left turn. These witnesses then for the first time saw the boxcars on the crossing. No flasher lights were in operation at the crossing. There was a noise and a flash under the boxcar on the crossing and a burning wheel of an automobile rolled out from under the train to the north side of the highway. These witnesses parked their car, crawled through the train and viewed the wreckage and the body of decedent. The flasher lights still were not working. However, at that time the train moved, which, in turn, moved the automobile, and the flasher lights 'started working'. About 25 minutes after the wreck, a deputy sheriff arrived. These witnesses gave him their names and addresses and resumed their journey.

Defendant's evidence was that the flasher lights were in full and continuous operation from the time the train approached within 800 or 1,000 feet of the crossing until it was removed several hours after the collision. This evidence was adduced through the oral testimony of the trainmen and the depositions of two motorists, Robert H. Bailey and Carl G. Ham, en route to Scott Air Force Base, in Illinois, who had approached and stopped their automobile on the north side of the blocked crossing immediately before the collision. The deputy sheriff also testified that the signals were operating when he arrived. (Plaintiff, for the reasons hereinafter stated and considered, objected to the admission of the depositions of Bailey and Ham.)

Ray Sheppard, signal and communications maintainer for defendant, testified in behalf of defendant on direct examination: The flasher lights at this crossing work on an alternating current that comes in on a wire and, in the event that power fails, they are operated by storage batteries, which are charged from a trickling current. These batteries will maintain all of the flasher lighting required of all of the trains passing over the crossing in question for about two weeks; and, ordinarily, the electric system, if it has become inoperative, is restored to operation within less time than that. The storage batteries can also be charged by a device built into the unit of which they are a part. When a train approaches within 800 or 1,000 feet of the crossing, it reaches an 'insulated rail joint'. The distance of 800 to 1,000 feet is fixed to meet the requirements of a 'standard State rule' to allow an interim of 20 seconds for the approach of the fastest scheduled train after the lights begin to operate. There is also a third system, 'a circuit directly across the road'. It is so wired that if 'something goes wrong' a relay 'makes contact to...