Hess v. Chicago, R. I. & P. R. Co.

• Decision Date: 10 April 1972
• Docket Number: No. 2,No. 55802,55802,2
• Citation: 479 S.W.2d 425
• Parties: Robert HESS, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Respondent
• Court: Missouri Supreme Court

Page 425

479 S.W.2d 425

Robert HESS, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Respondent.

No. 55802.

Supreme Court of Missouri, Division No. 2.

April 10, 1972.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 8, 1970.

Donald L. James, Daniel T. Rabbitt, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for appellant.

Coburn, Croft, Shepherd & Herzog, John C. Shepherd, John R. Musgrave, St. Louis, for respondent.

HENRY, I. EAGER, Special Commissioner.

Plaintiff here seeks $300,000 for personal injuries suffered in a railroad crossing accident. There was a unanimous verdict for the defendant. The injury occurred on September, 16, 1966, at a crossing of Creve Coeur Mill Road and the Rock Island tracks in St. Louis County; plaintiff was traveling generally south in a Volkswagen and the freight train, with three diesel units and 72 cars, was traveling east at a speed generally agreed to be 35 miles an hour. We shall refer to the crossing as the Mill Road crossing. The road was a two-lane asphalt road, 20 feet wide; the railroad consisted of one track. Plaintiff had negotiated a curve to his left about 100 yards north of the track, from which the road was relatively straight; there was an incline leading up to the track which was 4-5 feet above the level of the road. The train thus came from plaintiff's right; the track from that direction approached the crossing at a somewhat obtuse angle. Much of the controversy develops from evidence concerning vegetation along the road and on the right-of-way supposedly obscuring the vision to the right. The extent of obscurity was perhaps the chief issue. Plaintiff offered and the Court received in evidence 11 photographs, obviously taken from various distances on both sides of the track and including one aerial view. There was a field of standing corn on plaintiff's right, running to or very close to the right-of-way. On the right-of-way there were weeds and brush which were, on conflicting evidence, said to be anywhere from waist high to six or eight feet high. Some weeds extended comparatively close to the track. Plaintiff testified that he stopped at 5-6 feet from the track, looked both ways and listened and could not see or hear a train. No photo was identified as taken from that spot, and no photo was offered with a train or engine on the track. It is virtually impossible to tell from these photos at what point such a train could have been seen from the position where plaintiff says he stopped. Some of them indicate a very considerable obstruction of the view but were obviously taken from positions farther back from the track. (Exhibits 5, 6, 7 and 8 for instance.) Exhibits 9 and 10, looking west along the track, show extensive vegetation on the north side, but it is impossible to tell from them how much this obscured the view at the crossing. The road on the south side of the track ran substantially parallel to the track for some distance and a train could readily be seen from that side. Just south of the crossing the road turned sharply to the right. As plaintiff approached the crossing he passed highway signs indicating a railroad crossing and a curve. These were some distance back. There were wooden 'cross-buck' signs at the crossing on each side of the track, but no other protective device. The train was several hours late. The plaintiff was not really familiar with this road; he had been over it two or three times. He stated that he did know he was approaching a railroad crossing. He was a high school teacher and was on his way from St. Charles to Lindbergh High School.

Plaintiff testified, as stated, that he stopped with the front of his car five or six feet from the track, looked and listened, but saw nothing and heard nothing. He further said on cross-examination that he stopped for 'maybe' a minute or two. He testified that the cornfield ran to within 30-40 feet of the track, that the weeds and other growth beyond were five or six feet high, and that he could not see through them; that he could then see only about a car's length to his right, meaning a Ford car, with the weeds only a few feet from his car; that he then started up, looking straight ahead, and attained a speed of two or three miles an hour, when he saw a 'big blur' and his car was struck. Actually, the left front of his car was struck by the left front of the engine. These points of contact were due to the angle at which the track crossed the road. Plaintiff suffered very substantial injuries, but they are not material on this appeal.

Other witnesses for plaintiff testified: (Buchanan) that the weeds on the right-of-way in September were 6-8 feet high and that there were also some small trees; that he would stop 5-8 feet back from the rails and listen, since he could not see, and if he heard no whistle, he would move on up farther where he could see; (Viefhaus) that there was heavy growth along the right-of-way at this point, and that one had to get to a point 12-15 feet from the tracks before he had any visibility for any distance; (Mrs. Swerlein) that there were 'shrubs' along the tracks, quite tall, and higher than a car; that when you're right up to the track you can see 'quite a distance,' but that at five feet 'you couldn't see too far'; that there were 'lots of shrubs, weeds * * * up to the track.' This last witness, traveling behind plaintiff, did not see the engine before the collision and heard no bell or whistle; but on cross-examination she estimated that from 12-15 feet back from the rails one could see 'fairly good down there, at least to the next crossing * * *.' Her testimony was somewhat inconsistent.

The track was straight for about two miles before reaching the crossing; there was a 'big windshield' on the engine; the crossing could be seen for about half a mile.

The engineer testified: that he saw the car for 'a fraction of a second' before the impact, when the engine was less than 100 feet from it; that he was running at 35 miles an hour; that the brakeman saw the car first and shouted to him; that he applied the emergency brakes but that 23 cars passed the crossing before the train could be stopped; that the bell and whistle had been sounded continuously for a quarter of a mile and also just previously for another crossing; that one had to be 'right up close' to Mill Road crossing to have any vision down the road; that there were some weeds near the crossing, but 'not over waist high.' The brakeman riding on the engine testified: that he had been over the crossing many times; that he was seated on the left and was looking to the left; that he first saw the car when the engine was about 100 feet away, that the car was moving but that he had no idea that it would come on the track; that when he saw that it was not going to stop he 'yelled' at the engineer; he estimated that the car was 60 feet north of the rail when he first saw it; that plaintiff did not bring his car to a stop; that he saw the top of the car first, as it came up the incline; that 'in places' the weeds and shrubs were 'at least' as high as the corn; that the train itself made a 'loud humming sound.'

One witness for defendant, Mr. Lenck, was driving north and stopped at the crossing just as the train reached it; he had seen the train for some distance since his part of the road was parallel to and substantially lower than the tracks; he testified: he heard the train whistle; that he did not see any car stopped on the other side and did not know of the accident until the train stopped; that the elevation of the track was such that he could not really see across the track; that he had traveled south across the same crossing around that date and did not believe that the weeds obscured his view 'because of the relative height of the train to the weeds.'

There was a metal, diamond shaped speed sign on the south side of the track, with '30' above and '25' below; this was located several hundred feet west of the Mill Road crossing. The conductor testified that the regular speed in this area was 35 miles, that the sign was an 'approach' sign and meant that the speed of a freight train should be reduced to 25 miles an hour at a point 4,000 feet from the sign; in other words, that there was no violation of the speed zone at this crossing. The evidence fairly shows that there was a substantial amount of travel on Mill Creek Road; by one witness it was described as 'relatively heavy' at that time; by another as 'terribly heavy' before Highway 244 was opened, as 'dead' for awhile thereafter, and as 'considerable' at time of trial in February 1970. We do not know when Highway 244 was opened. There were four cars on the road in the general neighborhood of this crossing at the time of this accident about 8:15 a.m. The place was essentially a rural area but not far from more populated areas. There were cornfields on both sides of the road as plaintiff approached this crossing and an exhibit shows open fields across the track to the south. Further facts and rulings on evidence will be developed in the discussion of certain evidentiary points.

Plaintiff pleaded sundry assignments of negligence. He submitted two: 'First, defendant either: drove its train at an excessive speed, or failed to warn of the approach of its train * * *.' His Instruction 'C' was refused by the Court. It was as follows: 'Your verdict must be for plaintiff if you believe: First, the railroad crossing in question was much traveled and customarily used by vehicular traffic and the public in general, which defendant knew or by the exercise of ordinary care could have known, and

'Second, under all the circumstances shown by the evidence said crossing was unusually dangerous for public use, which defendant knew or by the exercise of ordinary care could have known, and, Third, under all the circumstances shown by the evidence defendant should have in the exercise of ordinary care...