Elfrink v. Burlington Northern R. Co.
| Decision Date | 08 December 1992 |
| Docket Number | 60553,Nos. 60498,60503 and 60554,s. 60498 |
| Citation | 845 S.W.2d 607 |
| Parties | Tammy Deuser ELFRINK, Plaintiff/Respondent/Cross-Appellant, v. BURLINGTON NORTHERN RAILROAD CO., Defendant/Appellant/Cross-Respondent, and Charles Arthur Campbell, Defendant/Cross-Respondent. Stanley KRUMREY, III, a Minor, by Stanley KRUMREY, Jr. his next friend, Plaintiff/Respondent/Cross-Appellant, v. BURLINGTON NORTHERN RAILROAD CO., Defendant/Appellant/Cross-Respondent, and Charles Arthur Campbell, Defendant/Cross-Respondent. |
| Court | Missouri Court of Appeals |
William Allen Brasher, Daniel M. Buescher, William A. Brasher-Law Offices, St. Louis, for appellant.
Alan G. Kimbrell, St. Louis,
Frank Kimberly Carlson, Carlson & Associates, Union,
John D. Beger, Steelman & Beger, Rolla, for respondent.
This consolidated appeal results from separate actions filed by two automobile passengers against the driver of the automobile and Burlington Northern Railroad Company for injuries sustained when the automobile collided with a Burlington train at a railroad crossing in Robertsville, Missouri. The cases were consolidated for trial in the circuit court of the City of St. Louis. The jury returned verdicts in favor of the passengers, Tammy Deuser Elfrink and Stanley Krumrey, III, and assessed 90% fault to Burlington and 10% fault to the driver, Charles Campbell. The trial court reduced the judgments to reflect insurance payments to the passengers and reduced Elfrink's judgment against Burlington by the 10% fault apportioned to Campbell. Burlington appeals from those judgments, asserting trial error and excessiveness of the verdict. The two passengers cross appeal, claiming that the trial court erred in reducing their judgments by the amount of the payments they received from their own insurance carriers and in reducing Elfrink's judgment against Burlington by the amount of fault apportioned to Campbell. We find the trial court erred in reducing the judgments by the amount of the insurance payments and reducing Elfrink's judgment by the amount of fault apportioned to Campbell. We modify the judgments by reinstating those amounts and affirm the judgments of the trial court as so modified.
On February 16, 1985, Campbell drove Krumrey, age 15, Elfrink, age 18, and Warren Stephens 1 to a store in Robertsville, Missouri to buy food. After they finished shopping, Campbell started to drive them back to the house. Campbell stopped the car at the railroad crossing just north of the store on Montgomery Road. As the car then crossed the railroad tracks, it was struck by a westbound Burlington train. Although the car did not have a radio and the windows were open, Krumrey testified he never heard a train whistle and was not aware of the train until it was about five feet away. Elfrink also testified that she did not hear a train whistle, bell or horn.
On the other hand, witnesses for Burlington testified that the train had sounded a whistle as it approached the Montgomery Road crossing. Various crewmen stated that the train began sounding its whistle at the whistle board and was still sounding it when the train began braking. Three other witnesses corroborated the train crew's testimony that the train had sounded a whistle.
All four occupants of the car were injured in the crash. Elfrink suffered a broken femur, a permanently displaced pelvis and muscle damage to her legs. These injuries affected her lifestyle and caused her continual pain. Krumrey suffered a collapsed lung, broken ribs, a bruised pancreas, a bruised heart, and a fractured pelvis and also had a kidney removed. He testified that he could no longer play contact sports and was rejected for life insurance coverage. Stephens died from injuries sustained in the crash. Campbell was declared incompetent as a witness as a result of his injuries. The case was submitted to the jury on the theory that Burlington was negligent in failing to sound a whistle or ring a bell within the statutory distances as it approached the crossing and failed to keep the crossing reasonably clear of debris which obscured the crossing.
For its first point on appeal, Burlington asserts that the trial court erred by refusing to submit to the jury either of Burlington's withdrawal instructions E and F which sought to remove the issues of speed, crossing design and the extra-hazardous nature of the crossing from the case after the passengers had totally abandoned these issues.
Burlington tendered the two withdrawal instructions to the trial court. Instruction E sought to withdraw from jury consideration evidence of the train's speed and the crossing design. Instruction F sought to withdraw from jury consideration evidence of the train's speed, the crossing design and whether the crossing was extra-hazardous. Burlington argues that these issues were abandoned and that it was therefore entitled to a withdrawal instruction as contemplated by MAI 34.01 [1978 Revision].
We agree that these issues were abandoned as a basis for Burlington's negligence because, although they were pleaded, they were not submitted to the jury. Griffin v. Anderson, 369 S.W.2d 889, 892 (Mo.App.1963). However, if the evidence offered to support an abandoned issue is sought to be withdrawn from the jury's consideration, "care must be taken that such evidence does not also concern an issue still before the jury." MAI 34.01 [1978 Revision]. The trial court may not withdraw evidence if it concerns an issue still before the jury. Earll v. Consolidated Alum. Corp., 714 S.W.2d 932, 937-38 (Mo.App.1986).
In this case, instructions E and F each sought to withdraw the evidence of speed from jury consideration. The case was not submitted to the jury on the ground that the collision was proximately caused by excessive train speed. However, the evidence of train speed was relevant to other issues before the jury. There was undisputed evidence that the train was travelling 49-50 mph. This evidence was used at trial to calculate how long a bell, horn, or whistle would have sounded before the train struck the car if one of those instruments had begun sounding at the statutorily required 80 rods from the crossing. Train speed and automobile speed were also relevant to the driver's ability to keep a lookout and to react if he heard a whistle. Further, train speed was used by Burlington to calculate the train's braking distance and whether the train could have avoided the collision. The trial court did not abuse its discretion in not withdrawing the evidence of train speed from the jury.
We need not consider whether the trial court abused its discretion in not withdrawing the evidence of crossing design and the extra-hazardous nature of the crossing from the jury. The instructions submitted to withdraw these issues also withdrew the issue of speed, which still had relevance to the case. It is not an abuse of discretion to refuse a withdrawal instruction that is too broad. St. Joseph Light & Power Co. v. Ohlhausen, 621 S.W.2d 301, 303 (Mo.App.1981). Moreover, the verdict directing instructions confined the jury's deliberations to the issues of whether a bell or whistle had been properly sounded or whether the crossing had been properly maintained. The trial court did not abuse its discretion in refusing to give Burlington's proposed withdrawal instructions E and F because the instructions were overbroad. Each instruction attempted to withdraw all evidence of speed from the jury. Point I is denied.
For its second point Burlington claims that the trial court erred by submitting the passengers' verdict directing instructions 8, 13 and 21 to the jury. These instructions allowed the jury to find for the passengers if the jury believed that Burlington did not ring its bell or sound its whistle as the train approached and occupied the Montgomery Road crossing. Burlington argues that the passengers failed to present any evidence that Burlington did not ring its bell as it approached the crossing. While Burlington did not specifically object to instructions 8, 13 and 21 at trial, it did specifically object to those instructions in its motion for new trial, thus preserving this issue for our review. Rule 78.07; Rule 70.03.
An instruction must be supported by substantial evidence. Baumgartner v. Bi-State Dev. Agency, 811 S.W.2d 63, 65 (Mo.App.1991). Where an instruction is disjunctive, all submissions must be supported by substantial evidence. Berra v. Union Elec. Co., 803 S.W.2d 188, 190 (Mo.App.1991). Substantial evidence is that evidence which, if true, is probative of the issues and from which the jury can reasonably decide the case. Sheridan v. Sunset Pools of St. Louis, 750 S.W.2d 639, 641 (Mo.App.1988). On review of the submission of an instruction, we must view the evidence and the inferences therefrom in the light most favorable to the instruction, and we disregard any evidence that does not support the instruction. Berra, 803 S.W.2d at 190.
A railroad is required to either continually ring a bell or continually sound a whistle or horn on its locomotives within a distance of 80 rods from any place where the tracks intersect a road. § 389.990 RSMo (1986). Burlington concedes that several witnesses testified that they did not hear a whistle, but maintains that no witness specifically testified to not hearing a bell.
The record reveals that two witnesses testified that they did not hear a bell. A bystander witness to the accident testified as follows:
Q. During that entire one or two minutes did you ever hear a horn or a whistle or a bell or anything from a train?
A. No, I did not.
Burlington claims that the question had four parts and it is unclear which part of the question this witness was answering. We disagree. All four parts of the question ask whether the witness...
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