Hendricks v. Missouri-Kansas-Texas R. Co.

• Decision Date: 31 March 1986
• Docket Number: 13986,Nos. 13974,MISSOURI-KANSAS-TEXAS,s. 13974
• Citation: 709 S.W.2d 483
• Parties: Jackie Jo HENDRICKS, pro ami., Plaintiff (Respondent and Cross-Appellant), and Dixie Lee Hendricks, Intervenor (Respondent), v.RAILROAD COMPANY, Defendant (Appellant and Cross-Respondent).
• Court: Missouri Court of Appeals

Page 483

709 S.W.2d 483

Jackie Jo HENDRICKS, pro ami., Plaintiff (Respondent and Cross-Appellant) and Dixie Lee Hendricks, Intervenor (Respondent), v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Defendant (Appellant and Cross-Respondent).

Nos. 13974, 13986.

Missouri Court of Appeals,

Southern District,

Division Two.

March 31, 1986.

Howard C. Gosnell, Jr., Chris Hoberock, Ewing, Carter, McBeth, Smith, Gosnell, Vickers & Hoberock, Nevada, for defendant (appellant and cross-respondent) Missouri-Kansas-Texas R. Co.

J. Michael Cronan, Cronan, Messick & Gordon, Kansas City, for plaintiff (respondent and cross-appellant) Jackie Jo Hendricks.

CROW, Judge.

About 3:55 p.m., Saturday, December 20, 1980, Jackie Leroy Hendricks ("Jack"), age 36, was driving his 1972 Ford Torino, unaccompanied, westbound on an unpaved county road in Vernon County, some 3 to 3 1/2 miles east of Nevada. Ahead of Jack's Torino, the road intersected a railroad track at a "grade crossing." The track, owned by Missouri-Kansas-Texas Railroad Company ("M-K-T"), ran generally from southwest to northeast, and crossed the road obliquely, so that the angle created where the east rail of the track met the south edge of the road was approximately 135 degrees, while the angle formed by the east rail and the north edge of the road was approximately 45 degrees. This is illustrated by the aerial photograph (Defendant's Exhibit K-1) appended hereto. The building in the photograph lies east of the track in the acute angle formed by the east rail and the north side of the road. The curving highway in the photograph, paralleling the track as it proceeds southwest, is U.S. Highway 54.

Jack, driving west, entered the crossing, at which time his Torino was struck on the driver's side by an M-K-T locomotive. The locomotive, heading northeasterly, was pulling an M-K-T train consisting of four loaded freight cars, five empty freight cars, and a caboose.

The locomotive proceeded 504 feet past the point of impact, pushing the Torino down the track that entire distance, before stopping. Ronald Clyde Rude, a brakeman on the train, was the first person to reach Jack's Torino after it came to rest. Rude observed that Jack was dead.

Jack was survived by one child, Jackie Jo Hendricks ("Jackie Jo"), born August 11, 1976, and by his wife, Dixie Lee Hendricks ("Dixie"), whom Jack had married April 17, 1979.

On December 24, 1981, Jackie Jo, by her next friend (her mother, Joanne Leona Hendricks, whose marriage to Jack had been dissolved in May, 1978), filed a "petition for wrongful death" against M-K-T in the Circuit Court of Vernon County.

On February 5, 1982, Dixie was granted leave to intervene in the action, and she filed a petition of her own seeking damages for Jack's death.

Venue was changed to Barton County, and on June 22, 1984, a four-day trial ended with a jury verdict assessing fault for Jack's death at 40 per cent against M-K-T and 60 per cent against Jack. The jury determined the aggregate damages sustained by Jackie Jo and Dixie as a result of Jack's death to be $500,000. The trial court afterward reduced the damages by 60 per cent--the percentage of fault attributed to Jack--and entered judgment against M-K-T for $200,000, which the trial court apportioned equally between Jackie Jo and Dixie.

At trial, liability was asserted by Jackie Jo and Dixie (hereafter referred to collectively as "plaintiffs") against M-K-T on the theory that the grade crossing was unusually dangerous, and that M-K-T's locomotive engineer, W.M. Journot, operated the train in a negligent manner. ¹

M-K-T appeals, briefing six assignments of error, discussed infra. Jackie Jo cross-appeals, maintaining that the trial court erred in dismissing a count of her petition which undertook to plead a cause of action against M-K-T on the theory of "strict liability in tort."

We deal first with M-K-T's appeal, number 13974. M-K-T's first assignment of error is that the trial court wrongly allowed Michael Paul Massie to testify, over M-K-T's objection, that the grade crossing was "unusually hazardous," in that such testimony "constituted an opinion and legal conclusion of said witness and the opinion and conclusion given by said witness invaded the province of the jury and was not the proper subject of either lay or expert testimony and for the further reason that witness Massie was not competent to render such an opinion." This assignment of error is intertwined with M-K-T's second assignment of error, which asserts that the trial court erred in giving Instruction No. 6 ² "for the reason that there was no substantial evidence properly admitted at the trial which would support a jury finding that the crossing was 'unusually dangerous.' "

Massie, characterizing himself as an "[i]nvestigative consultant as to train handling and operation, and railroad/highway grade crossing accidents," revealed that he was retained by Jackie Jo's attorney November 11, 1982, to investigate the collision. Massie's credentials included "[s]ix years college in design and architecture," and employment from 1967 through 1978 by a railroad (not M-K-T), during which he worked seven years as a switchman and brakeman, and four years as a licensed locomotive engineer. In the latter capacity, Massie operated trains in southeast Missouri and southern Illinois, in both urban and rural areas, and was responsible for training new engineers. On cross-examination, Massie disclosed that during his railroad employment he was "involved in two fatal accidents," and that as a result of the second one the railroad terminated his employment.

Massie visited the collision site on one occasion, June 24, 1983, making photographs while there. At trial, Massie was asked to assume that the train was placed in "emergency brake application" four car lengths southwest of the crossing ³ and that the train stopped 504 feet northeast of the point of impact. Utilizing those assumptions, among others, and applying a formula for calculating train stopping distances Massie opined that the train was going 31 miles per hour "at the time the emergency application was made." Massie also testified that he had reviewed the "speed tape" from M-K-T's locomotive, and that the tape confirmed that the speed of the locomotive at the point of emergency application was 31 miles per hour.

Although engineer Journot testified that the train was going only about 25 miles per hour when he placed it in emergency, M-K-T does not, on appeal, challenge the admissibility of Massie's opinion that the speed was 31. Indeed, an expert for M-K-T, utilizing the speed tape and the results of tests performed on the locomotive's speed recorder after the accident, concluded that the train was going 28.6 miles per hour when it was placed in emergency. The expert revealed, however, that the speedometer at which engineer Journot would have been looking would have indicated a speed of only 25.17 miles per hour.

While the dispute as to speed does not appear significant, it becomes so when we consider M-K-T's contention (point 2) that the evidence was insufficient to support submission to the jury of the issue whether the grade crossing was unusually dangerous.

Jenkins v. Wabash Railroad Co., 322 S.W.2d 788, 793 (Mo.1959), explains that in the country, between stations away from congested populations, it is not negligence for trains to run at rapid speeds over road crossings. However, says Jenkins, whether negligent speed exists depends upon all the surrounding circumstances, and it has been stated that although warning signals are given, where a railroad crossing is dangerous, the railroad company also owes the additional duty to such travelers to pass such crossing at a reasonable rate of speed, proportioned to the danger.

Jenkins, like the instant case, arose from a fatal collision between an automobile and a locomotive at a crossing. Jenkins concluded it was material to determine whether the evidence there was sufficient to authorize a finding by the jury that the crossing was "dangerous" within the meaning ascribed to that term in relation to the operation of trains thereover at a negligent speed, and if so, whether the speed at which the train there was operated (75 to 78 miles per hour) was, under all circumstances, excessive so as to constitute actionable negligence. Id.

The opinion in Jenkins noted that while the crossing was not located in a town, it did lie in a "substantially populated rural area," and was "extensively used by the traveling public." Additionally, the road did not approach the crossing at a right angle to the track, with an unobstructed view. Instead, the view of a motorist approaching the crossing from the north (as did the automobile involved in the accident) was totally obstructed until the motorist was very near the track. Under those circumstances, Jenkins held it was for the jury to determine (a) whether the crossing was dangerous, as that term was used in determining whether the railroad owed a duty to travelers on the highway to pass over the crossing at a reasonable rate of speed, (b) whether, under the circumstances, it was negligence to operate the train at 75 to 78 miles per hour, and (c) if so, whether such negligence was the proximate cause of the fatalities. Id.

Branson v. Atchison, T. & S.F. Ry. Co., 239 S.W.2d 1003, 1004[1, 2] (Mo.App.1951), states that in the country between stations away from congested areas, it is not negligence for passenger trains to run at a rapid speed over railroad crossings, and, at such a crossing, it is a question of what is a reasonable rate of speed under the circumstances, and this in turn rests upon the question of whether the crossing is unusually dangerous or hazardous, and whether a crossing is more than ordinarily hazardous or dangerous depends upon the circumstances surrounding it. In Branson, the crossing was on a county road three miles from town, and the train was going 75 miles per hour...