Foster v. Kansas City Southern Ry. Co., 45888

• Decision Date: 12 November 1957
• Docket Number: No. 1,No. 45888,45888,1
• Citation: 306 S.W.2d 521
• Parties: Golden J. FOSTER, Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Defendant-Respondent
• Court: Missouri Supreme Court

Page 521

306 S.W.2d 521

Golden J. FOSTER, Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation Defendant-Respondent.

No. 45888.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1957.

Don G. Stubbs, R. S. McKenzie, Stubbs, McKenzie, Williams & Merrick, Kansas City, for appellant.

Richard S. Righter, Robert D. Youle, James F. Walsh, Kansas City, for respondent.

VAN OSDOL, Commissioner.

Plaintiff, Golden J. Foster, instituted this action for the wrongful death of her husband, Emery Robert Foster, who lost his life when the tractor-(semi) trailer he was driving was struck by defendant's train. The cause was submitted to a jury upon negligence of defendant under the last clear chance doctrine of Kansas. The jury returned a verdict for plaintiff awarding $15,000 damages. Thereafter, defendant Kansas City Southern Railway Company moved for judgment for defendant in accordance with its motion for a directed verdict and, in the alternative, for a new trial. The trial court sustained the motion, set aside the verdict and judgment for plaintiff, entered judgment for defendant, and alternatively granted a new trial. Plaintiff has appealed.

The decisive question herein upon appeal is whether or not plaintiff made a submissible case of negligence of defendant under the Kansas last clear chance doctrine. In determining this question we must consider the evidence in the light most favorable to plaintiff. We are required to take plaintiff's evidence as true, where it is not entirely unreasonable or opposed to physical laws, and to give plaintiff the benefit of all reasonable inferences arising from all the evidence. Trower v. Missouri-Kansas-Texas R. Co., 347 Mo. 900, 149 S.W.2d 792.

July 8, 1954, the tractor-trailer driven by plaintiff's decedent was struck by the locomotive of defendant's train at a crossing three and one-half miles south of Crestline in Cherokee County, Kansas. Deceased had been driving the combination motor vehicle southwardly on Kansas State Highway No. 26, a north-south highway with concrete pavement twenty feet wide. At the point of collision defendant's southwest-northeast tracks angle across the highway at grade. The highway and tracks are practically level, as is the surrounding terrain, except that when a train approaches the crossing from the southwest it moves a 'little bit' downhill, but the grade levels off ten or fifteen car lengths southwest of the crossing. There are 'cross-buck' railroad crossing signs northwest and southeast of the crossing, twenty-five feet from the center line of the pavement. There was evidence tending to show that, due to the foliage of trees along the fence on the west right-of-way line of the highway, the southbound traveler cannot see a train in its approach from the southwest until the traveler reaches a point on the highway 300 feet north of the crossing--from that point, only the locomotive of the northeast-bound train may be sighted; and a southbound vehicle at that point on the highway cannot be seen from defendant's train until the train is at a point 150 feet southwest of the crossing.

The tractor-trailer was forty to forty-seven feet long. The tractor had two wheels in front and dual wheels at the rear; the trailer had dual wheels on each side at the rear, and was loaded with four automobiles. Defendant's train, consisting of a Diesel locomotive of three units, twenty-two freight cars--twelve 'loads' and ten 'empties'--and a caboose, was moving northeastwardly. The collision occurred in the afternoon a little before six. It was a clear day, fairly hot, and the surface of the highway was dry.

Plaintiff in endeavoring to make out her case was obliged to rely upon the testimony of the fireman and head brakeman of defendant's train, who, with the engineer, were riding at the front of the front or lead unit of the locomotive. They, and deceased, were the only eyewitnesses. The engineer died prior to trial, and his testimony had not been preserved by deposition.

The fireman testified that he first saw the tractor-trailer when it was 300 feet north of the crossing. It was moving at fifty miles per hour. The locomotive of defendant's train was then 100 to 150 feet from the crossing. The train was moving twenty-three miles per hour. The tractor-trailer started to slow down. 'He (deceased) was slowing down. * * * Yes, I would say rapidly.' When the tractor-trailer 'was back 200 feet from that crossing,' the locomotive was 'probably 75 foot, I would say.' When the tractor-trailer was 75 to 100 feet from the crossing, the locomotive was forty to fifty feet from the crossing. At that time, the witness realized there was going to be a collision, and he 'left the fireman's seat * * * and fell to a safety position on the floor' of the cab. He heard the application of the brakes in emergency immediately before the impact.

The head brakeman testified the train had been moving twenty to twenty-three miles per hour; he saw the tractor-trailer when it was 300 feet 'back,' north of the crossing. A collision first became apparent to him when the locomotive was 'approximately 25 feet from the crossing.' The tractor-trailer was at that time 'maybe 30 or 35 feet from the crossing. * * * Well, he was slowing the truck down and I don't know what speed--I would say he was going right then maybe 20 miles an hour, or approximately 20 miles an hour.' When the locomotive was approximately twenty feet from the west edge of the pavement, the witness could see 'that the truck driver wasn't going to get stopped.' He, the witness, 'jumped down' on the floor; he heard the application of brakes 'in emergency' when the train was approximately twenty feet back from the crossing. The bell of the Diesel had been ringing, the headlight burning, and the whistle blowing as the train approached the crossing.

The front of the lead unit of the locomotive struck the tractor-trailer on the right side 'approximately where the trailer hooks onto the tractor.' The tractor came to rest against the 'cross-buck' warning sign southeast of the crossing in a position 'covering a portion of the east part' of the pavement. The trailer remained on the north side of the crossing in a position 'covering the west half' of the pavement. Gasoline spilling from the crumpled gasoline tank on the right side of the tractor ignited, and plaintiff's husband perished in the collision, or in the ensuing fire.

In approaching the crossing the tractor-trailer had made 'skid marks' which commenced 200 feet north of the crossing on the right (west) side of the pavement. The skid marks were continuous down to the rear of the trailer, and, as the marks neared the crossing, they curved somewhat to the eastward so that the right (west) skid mark was at or 'a little' east of the center line of the pavement. There was testimony that the trailer tires 'were in a skid.' It is normal procedure in stopping a tractor-trailer to apply the trailer brakes 'and gear the tractor down to keep it from jackknifing.'

When the train was brought to a stop, the front of the locomotive was 563 feet northeast of the center of the crossing. The two lead units of the locomotive had been derailed.

There was evidence introduced tending to show that, assuming the train was moving at a speed of '22 (sic) to 23 miles an hour' in approaching the crossing, the speed of the train in emergency application of brakes could have been reduced two miles per hour within fifty feet; within the next fifty feet the speed could have been further reduced four or five miles per hour; and within the next fifty feet the train could have been further slowed down five or a little better than five miles per hour. The witness summarized by saying the speed of the train could have been slowed down 'about 11 miles an hour in 150 feet in emergency application.'

The elements essential to applicability of the last clear chance doctrine were stated by the Supreme Court of Kansas in Goodman v. Kansas City, M. & S. R. Co., 137 Kan. 508, 21 P.2d 322, 324, as follows, '(1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence has ceased; (3) that defendant, seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part, had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care; and (5) as a result of such failure plaintiff was injured.' See also, Ross v. Chicago, R. I. & P. Ry. Co., 165 Kan. 279, 194 P.2d...