Griffin v. Kansas City Southern Ry. Co.

• Decision Date: 24 March 1998
• Docket Number: Nos. WD,s. WD
• Citation: 965 S.W.2d 458
• Parties: Mark GRIFFIN, Respondent, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant. 53149, WD 53172.
• Court: Missouri Court of Appeals

Page 458

965 S.W.2d 458

Mark GRIFFIN, Respondent, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.

Nos. WD 53149, WD 53172.

Missouri Court of Appeals,

Western District.

March 24, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 28, 1998.

As Modified April 28, 1998.

Harlan D. Burkhead, Jeffrey P. Ray, Lathrop & Gage, Kansas City, for appellant.

Ronald J. Stites, William C. Hopkins, Connie M. Francis, Stites, Hopkins, Fair & Riederer, Kansas City, for respondent.

Before ELLIS, P.J., and LAURA DENVIR STITH and HOWARD, JJ.

ELLIS, Presiding Judge.

On March 12, 1993, at approximately 6:20 p.m., Jerry Griffin was driving west across the Walnut Street grade railroad crossing in Amsterdam, Missouri, when his automobile was struck by a south-bound freight train operated by the Kansas City Southern Railway Company ("KCS"). Griffin died as a result of this accident. Subsequently, Jerry Griffin's five adult children ("Respondents") filed a wrongful death suit in the Circuit Court of Jackson County pursuant to § 537.080, et seq. ¹

Trial began on March 25, 1996. On April 8, 1996, the jury returned a verdict assessing actual damages at $2,500,000 and finding that KCS was 67% at fault and Griffin was 33% at fault. Thereafter, the trial court entered judgment in accordance with the verdict, awarding Respondents $1,675,000 in actual damages. ² KCS appeals from that judgment.

KCS initially challenges the trial court's use of Instruction # 6, a verdict director submitted by Respondents. That verdict director allowed the jury to find KCS liable if they found either: (1) KCS failed to keep a careful lookout, (2) KCS failed to sound an adequate and timely warning, or (3) KCS failed to slow the speed of its train to provide an adequate visual warning of its approach. ³ KCS challenges each of these submissions. Where, as here, a disjunctive instruction is submitted to the jury, each alternative submitted in the instruction must be supported by evidence which, if true, would support a verdict for the party submitting the instruction. O'Neal v. Pipes Enters., Inc., 930 S.W.2d 416, 424 (Mo.App. W.D.1995).

In its first point, KCS argues that the trial court erred in submitting Respondents' verdict director because the submission relating to the speed of the train was preempted by federal law. It is undisputed that the train was traveling at forty miles per hour as it approached the Walnut Street crossing. Likewise, it is undisputed that the federally mandated speed limit for that stretch of railroad track was forty miles per hour. In Barlett v. Kansas City Southern Ry. Co., 854 S.W.2d 396 (Mo. banc 1993), the Missouri Supreme Court held that while some claims based on dangerous conditions at railroad crossings are permissible, federal law preempts any state common law claim based on excessive speed. Barlett, 854 S.W.2d at 399 (citing CSX Transportation Inc. v. Easterwood, 507 U.S. 658, 664-76, 113 S.Ct. 1732, 1738-44, 123 L.Ed.2d 387 (1993)). The Barlett court stated that a common law claim of excessive train speed is defined as " 'traveling too quickly given the time and place.' " Barlett, 854 S.W.2d at 400 (quoting Easterwood, 507 U.S. at 676 n. 15, 113 S.Ct. 1743 n. 15 (1993)). "Thus, while a railroad may be liable for failure to remedy unsafe conditions, it may not be liable for travelling at an unsafe speed in areas with such conditions." Barlett, 854 S.W.2d at 399.

Barlett held that the submission of a claim in the verdict director, which allowed the jury to find the defendant liable if it found the train was operated at an excessive speed, was preempted by federal law and, thus, filed to state a claim. Barlett, 854 S.W.2d at 399. However, Barlett went on to state that a different submission, requiring a finding (1) that the flashing warning lights were not working, (2) that the train crew knew or should have known that the warning lights were not working, and (3) that the crew failed to slacken the speed of the train in response to this hazard, was not preempted and was properly submitted to the jury. Id. "Where a specific, individual hazard exists, a train has a duty to slow down or stop," and a submission based on that duty is not prohibited by CSX Transportation Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)). Id. Accordingly, a claim that a train failed to slacken its speed in response to a specific hazard is cognizable and does not infringe on federal regulations. Id.

Respondents concede that common law claims of excessive speed are preempted by federal regulations issued pursuant to the Federal Railroad Safety Act, 45 U.S.C. § 434 (1990), and the decision in Barlett. However, they contend that no such claim was submitted to the jury. Respondents argue that the instruction merely allowed the jury to find KCS liable if it found that the train failed to slow down to avoid the impending collision after KCS personnel noticed Griffin's vehicle.

While the claim described by Respondents on appeal resembles the flashing lights submission in Barlett and would clearly have been submissible, the instruction actually submitted in this case failed to instruct the jury accordingly. ⁴ Respondents' verdict director merely states that the "defendant failed to slow the speed of its train to provide an adequate visual warning of its approach." This submission fails to set forth a specific individual hazard, like the failure of the whistle to properly sound or the unwavering approach of Griffin's vehicle, nor does it state that the train crew knew or should have known of such a hazard. In the case at bar, the clear language of the instruction countenanced liability upon a finding that the train was moving too fast for approaching motorists to notice it in time. However, it was not conditioned on the jury first finding a specific individual hazard, such as failure of the whistle or horn to properly sound, and that the crew knew or could have known of such hazard. As written, the instruction permitted the jury to find KCS liable merely for traveling too quickly considering the time and place. This is precisely the type of claim prohibited by Bartlett. Id. Accordingly, the portion of the verdict director relating to the speed of the train was erroneous. Mott v. Missouri Pac. R.R., 926 S.W.2d 81, 85 (Mo.App. W.D.1996). The point is granted, and the judgment must be reversed.

The normal remedy upon finding an erroneous submission to the jury is reversal and remand for a new trial. ⁵ Therefore, it would generally be unnecessary to address other issues raised on appeal. KCS, however, contends "there was no evidential basis for the submission of the other two prongs of the plaintiffs' verdict director, so that the remedy to be granted is outright reversal and judgment for KCS in accordance with the provisions of Rule 84.14 that 'the appellate court shall ... give such judgment as the court ought to give.' " Consequently, we will consider KCS's argument that there was no evidentiary basis for the plaintiffs' to submit on KCS's failure to keep a careful lookout or failure to sound an adequate and timely warning.

As noted, supra, any instructions submitted to a jury must be supported by substantial evidence. Baumgartner v. Bi-State Dev. Agency, 811 S.W.2d 63, 65 (Mo.App. E.D.1991). "Where an instruction is disjunctive, all submissions must be supported by substantial evidence." Elfrink v. Burlington Northern R.R., 845 S.W.2d 607, 611 (Mo.App. E.D.1992). "Substantial evidence is competent evidence from which a trier of fact can reasonably decide the case." Mathis v. Jones Store Co., 952 S.W.2d 360, 366 (Mo.App. W.D.1997). When reviewing the submissibility of an instruction, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the instruction and disregard any evidence or inferences to the contrary. Barlett v. Kansas City Southern Ry., 854 S.W.2d 396, 399 (Mo. banc 1993).

KCS argues Respondents failed to meet their "unavoidable burden of proof to produce evidence from which the jury could conclude or at least reasonably infer that the alleged lack of a whistle warning was a proximate cause of the accident." It contends that there was "no evidence that [Griffin] would have made use of his auditory faculties" and that the only evidence presented at trial tended to support a conclusion that Griffin would not have heard a warning if it had been sounded. In this regard, KCS points to evidence that Griffin's car windows were up and that he was not wearing his hearing aids at the time of the accident.

KCS misconstrues the burden of proof on this issue. By statute, a railroad is required to continually sound a whistle or horn on its locomotives within a distance of 80 rods ⁶ from any place where the tracks intersect a road. Elfrink, 845 S.W.2d at 612 (citing § 389.990 RSMo (1986)). ⁷ Section 389.990 provides that a railroad company shall "be liable for all damages which any person may hereafter sustain at such crossing when such bell shall not be rung or such horn or whistle sounded as required by this section; provided, however, that nothing herein contained shall preclude the [railroad] sued from showing that the failure to ring such bell or sound such horn or whistle was not the cause of such injury." § 389.990. Accordingly, there is a legal presumption that an automobile operator would have heeded the audio warning signals of a train had they been sounded, and the railroad bears the burden of rebutting that presumption. Vandergriff v. Missouri Pac. R.R., 769 S.W.2d 99, 103 (Mo. banc 1989). While evidence was presented at trial that would support a conclusion that Griffin might not have heard the whistle even if it had been sounded, the question of whether KCS overcame the presumption that Griffin would have heard and heeded such a warning was properly left to the jury. Borrson v. Missouri-Kansas-Texas R.R., 351 Mo. 229, 172 S.W.2d...