Davis v. Illinois Terminal R. Co.

• Decision Date: 13 July 1959
• Docket Number: No. 1,No. 47172,47172,1
• Citation: Davis v. Illinois Terminal R. Co., 326 S.W.2d 78 (Mo. 1959)
• 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 78

326 S.W.2d 78

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

No. 47172.

Supreme Court of Missouri, Division No. 1.

July 13, 1959.

Sherman Landau, St. Louis, for appellant.

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

HOLMAN, Commissioner.

At about 1:15 a. m. on September 19, 1954, Robert F. Davis was instantly killed when the automobile he was driving ran into one of the cars of defendant's freight train at the railroad crossing maintained by defendant over Illinois State HighwayNo. 159 about a mile south of Edwardsville, Illinois.This action was instituted shortly thereafter by plaintiff as administratrix of the estate of her deceased husband seeking to recover the sum of $20,000 for his wrongful death.The case has been tried three times in the circuit court and this is the third appeal to this court.The first trial resulted in a verdict and judgment for defendant which was reversed upon plaintiff's appeal and the cause was remanded for a new trial.SeeDavis v. Illinois Terminal Railroad Co., Mo.Sup., 291 S.W.2d 891.The second trial resulted in a verdict for plaintiff in the sum of $20,000.Upon appeal by defendant the judgment entered thereon was reversed and the cause remanded because of error in the exclusion of certain evidence.SeeDavis v. Illinois Terminal Railroad Co., Mo.Sup., 307 S.W.2d 395.At the termination of the instant trial the jury returned a verdict for defendant and plaintiff has duly appealed from the ensuing judgment.

At each trial plaintiff has contended that the automatic flashing signal lights maintained by defendant at said crossing were not operating at the time of the collision and that defendant's negligence in failing to keep said signals in operating condition was the proximate cause of the collision between decedent's automobile and the train, which directly resulted in the death of decedent.Defendant has contended at each trial that plaintiff has failed to prove decedent's exercise of due care, as required by the law of Illinois, and that the evidence has shown that decedent was guilty of contributory negligence as a matter of law.

The evidence at the third trial, with the exceptions hereinafter noted, was substantially the same as that offered in the two previous trials.We make reference to the opinion upon the first appeal (291 S.W.2d 891) for a detailed recital of the evidence.We will give a brief summary of the evidence which has been presented at each trial and will state in greater detail certain evidence presented for the first time at the instant trial.

At the intersection in question Illinois State HighwayNo. 159 runs generally north and south and is intersected by defendant's east-west line of railroad tracks.The decedent lived in Edwardsville but was employed in East St. Louis, Illinois, as a truck driver.His hours of work were irregular and he often returned from work during the early hours of the morning.On the occasion in question he was approaching the intersection from the south.The highway is practically straight and level for a distance of 1,000 feet south of the railroad track.North of the tracks it curves westwardly.There is a gradual incline in the grade of the highway beginning about 75 feet on either side of the tracks so that the tracks at the crossing are about two feet higher than the normal level of the highway on each side.

The evidence tended to show that pursuant to an order of the Illinois Commerce Commission, defendant has been required, since 1936, to maintain flasher lights in good working order at said crossing during all hours of the day and night.Those signals were designed to flash red warning lights in each direction when a train approached to within 800 or 1,000 feet of the crossing, and to continue to flash said warning until the train had completely cleared the crossing.

Upon the occasion in question defendant's westbound train consisted of two diesel engines pulling 37 freight cars.The train was required to stop about 500 feet west of the crossing where a brakeman would throw a switch which would permit the train to go onto a northbound track.On the night in question the train overran the switch by 50 or 60 feet before coming to a stop.After waiting a minute or so, the engineer began to back up at a rate of two or three miles per hour, at which time decedent's automobile ran violently into a boxcar on the crossing.It is evident that the speed of the car caused its front portion (including the engine) to be forced under the boxcar and to damage certain of the brake equipment of the train which caused the automatic application of the emergency brakes and stopped the train within a short distance.

There was evidence to indicate that there were two automobiles on the north side of the crossing which were waiting to cross as soon as the train cleared the crossing.The two occupants of one of the automobiles testified as witnesses for the plaintiff that the flasher lights were not in operation prior to the time decedent's automobile struck the boxcar.Their testimony indicated that the flasher lights did not begin to operate until the train crew moved the train in an effort to open the crossing a few minutes after the casualty.The two occupants of the other car were airmen stationed at Scott Field, Illinois.They each testified for defendant that the red warning lights were flashing when they approached the crossing from the north; that after decedent's automobile struck the train they crawled through the train and saw that the flasher was working on the other side.One of these witnesses had had first-aid training and immediately checked the pulse of decedent and found that he was dead.

Defendant also presented the testimony of four members of the train crew, each of whom testified that the flasher signals were operating prior to the time the train went upon the crossing and were in continuous operation from that time until long after the decedent's car struck the train.Defendant also offered the testimony of Ray Sheppard, its signal maintainer, who arrived at the scene of the casualty about an hour and a half or two hours following the casualty.He stated that at the time he arrived a part of the train was still near the crossing and that the flasher lights were then in operation.He stated further that he had been notified of the collision and that it was his duty, upon the happening of such occurrences, to make an inspection of the signals in order to determine whether or not there was anything wrong with them; that he made such an inspection on this occasion and found that all of the relay systems were operating properly.In that connection it should perhaps be stated that plaintiff offered an electrical engineer as an expert witness who testified that he had examined the lights in question and had studied a diagram of the circuits involved, and, in answer to a hypothetical question, expressed an opinion concerning a number of contingencies that could have occurred which would have accounted for the failure of the lights to operate at the time of the instant casualty.He expressed the further opinion that when the train was moved following the collision, the resulting vibration might have caused the lights to then begin functioning in the manner as testified to by certain of plaintiff's witnesses.

The evidence disclosed that approximately 500 feet south of the crossing there was a state highway department sign which indicated a speed limit of 45 miles per hour.The defendant offered expert testimony to the effect that at 45 miles per hour the driver of a 1953 Ford automobile should be able to stop in not more than 154 feet, including reaction time; that at 60 miles per hour, the driver should be able to stop in 270 feet.

There was certain evidence at the instant trial concerning observations and photographs which was not offered at the two previous trials.A short time before the trial counsel for defendant sought to reproduce, as nearly as possible, the exact situation which confronted decedent on the night of the casualty and to take pictures showing what could be observed at certain distances under those circumstances.They obtained a 1953 Ford automobile similar to the one decedent was driving, had the headlights checked and properly focused by a mechanic, and arranged for the train to stop upon the crossing in question at about 1:30 a. m. on a clear but dark night.Railroad workmen placed their coats over the automatic warning signal and the automobile was first placed at a point 202 feet south of the crossing and pictures were taken by a professional photographer with the lights of the car on low beam, and also with the lights on high beam, to disclose the visibility of the boxcar at that distance and under those circumstances.The car was then placed at a point 107 feet south of the crossing and similar pictures were taken.In detailing the facts surrounding the taking of the pictures, the photographer and other witnesses testified that the pictures were a fair representation of what they actually saw there on that occasion.The pictures that were admitted in evidence and the testimony in connection therewith indicate that the boxcar was rather plainly visible at both distances when the headlights were on either the low or high beam.Other evidence will be detailed in connection with the consideration of points which have been briefed upon this appeal.

Before considering the specific points briefed by plaintiff in regard to alleged trial errors we should perhaps mention the contention of the defendant that the judgment should be affirmed because plaintiff failed to make a submissible case, i. e., failed to prove the exercise of due care by decedent and that, as a matter of law, deceased was shown to be...