Hickey v. Kansas City Southern Ry. Co.

• Decision Date: 09 April 1956
• Docket Number: No. 1,No. 44812,44812,1
• Citation: 290 S.W.2d 58
• Parties: Helen HICKEY, Respondent, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 58

290 S.W.2d 58

Helen HICKEY, Respondent, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Appellant.

No. 44812.

Supreme Court of Missouri, Division No. 1.

April 9, 1956.

Rehearing Denied May 14, 1956.

Jos. R. Brown, C. H. Rimann, Kansas City, Bond, Bond & Buehner, Joplin, for appellant.

Henry Warten, Emerson Foulke, Joplin, Lyman Mikel, Fort Smith, for respondent.

HOLLINGSWORTH, Judge.

Plaintiff recovered judgment in the sum of $13,000 for personal injuries sustained when an automobile driven southward by her on Wheeler Avenue in the City of Fort Smith, Arkansas, was wrecked as it passed over an allegedly rough and defective crossing maintained by defendant over its railroad track intersecting Wheeler Avenue. Defendant has appealed on grounds of error in the admission of evidence as to repairs made by defendant at the crossing subsequent to plaintiff's injuries, in the giving of plaintiff's Instruction PP-1, and in the refusal of defendant's Instruction D-1.

Wheeler Avenue extends north and south. It is 40 feet 6 inches, wide within its curbings. It was paved in the 'horse and buggy days', in 1912, with a slab of concrete 36 feet, 2 inches, in width, leaving a gutter on each side of the paving 2 feet, 2 inches, in width between the edge of the pavement and the curb. The paving had a crown of 12 inches at its center. Defendant's witness says the crown is four times higher than the crown of modern paving and that it was constructed in that manner 'to wash the manure off into the gutters'. The result is that a motorist is required to maintain a constant leftward pressure on the steering wheel of his vehicle to keep it from veering to the right, toward and into the gutter. Defendant's track (a spur), laid in 1919, crosses over Wheeler Avenue in a slightly curving but, for all practical purposes of this opinion, at a right angle. The track was so constructed that the rails rested on top of the curbs. Photographs placed in evidence by plaintiff and testimony of defendant's witnesses show that in constructing the crossing defendant, by the use of asphalt, raised the level of the paving over the crossing to the top of the rails so as to facilitate the approach to and passage over its track, but it did not fill in the gutter, which left the rails, as they extended from the edges of the concrete paving to and over the curbs, exposed and (judging from the photographs) about 12 inches above the bottom of the gutter. The photographs also show that the asphalt had been beveled or slanted downward from a short distance within the outer edges of the paving to the bottom of the gutter. According to defendant's evidence, Wheeler Avenue is one of the widest north-south traffic arteries in the city and, in the summer of 1953, carried an average of 300 cars per hour during the peak hours of 6:45 a. m. to 9:00 a. m. There were three other streets that carried a comparable volume of traffic.

The petition alleged that defendant 'negligently failed to keep the roadway of Wheeler Avenue in a reasonably safe condition' for motorists driving thereon 'so that they would not become injured by any defects'. The answer denied that allegation and pleaded negligence of plaintiff.

In his opening statement, defendant's counsel stated that he thought the testimony would show that when the track was constructed 'they laid it flush with the top of the pavement so it was all even and smooth and level with that some 36 feet of pavement, the evidence will show, but when you get to the gutter--I think the gutter is some 2 feet, 2 inches wide; when you get to the gutter, you drop off of the great big mound which represents Wheeler Avenue, the rail is exposed. It has to go across the gutter--you can't fill up the gutter, because that is the way the rain drains off into the storm sewers when it rains.'

At the beginning of the trial, plaintiff's witness, Arthur Hillhouse, a taxicab driver who had known the crossing for many years and who had witnessed the accident, identified and the court admitted in evidence five photographs of the crossing as it existed when plaintiff was injured on June 1, 1953, and had so existed for many years. Plaintiff then produced three photographs of the crossing showing that subsequent to June 1, 1953, the gutter had been filled with asphalt from the paving to the outer edge of the curb between the track rails and for a considerable distance on either side thereof, so that the street was paved and brought to the level of the top of the tracks from curb to curb within that area. At the request of defendant, counsel were heard by the court as to the admissibility of the latter three photographs outside the hearing of the jury. After the witness identified them as true pictures of the crossing following the changes above described, plaintiff offered them in evidence on the ground that the above quoted extract from the opening statement of counsel for defendant had made them competent. Counsel for defendant objected on the ground they showed Wheeler Avenue had been altered and, as altered, defendant had made certain improvements to the crossing; that the only purpose of the proffered evidence was to prove defendant's negligence by subsequent alterations, which made the evidence inadmissible; and further stated: 'We have admitted responsibility in regard to the tracks in the pleadings. * * * We admit it is our duty to maintain the crossing.' The court considered the opening statement of counsel for defendant, the objections made to the introduction of the photographs, examined one of them, announced that it appeared from it that the gutter was narrowed 'by filling it up * * * sort-of even with this pavement', and held it competent evidence by virtue of the opening statement of defendant's counsel as above quoted. Hillhouse then testified that the changes in the crossing, as reflected in the photographs, were that the old gutter 'has been filled in there' and a new gutter 'cut around'. Counsel for defendant renewed their objection on the grounds theretofore stated. Upon inquiry from the court, defendant's counsel stated defendant would 'like an instruction limiting the purpose for which they were admitted.' The court stated it would be given 'when the instructions are presented'. The pictures were then exhibited to the jury.

Plaintiff's testimony was: She and her husband were and had been for about three months employed at different business establishments in Fort Smith on the date she was injured, to wit: June 1, 1953. On that day, which was clear and dry, at about the hour of 7:00 a. m., in accordance with custom, she, with her husband and their three children, rode in their jeep station wagon to her husband's place of employment in the 500 block of Wheeler Avenue. She then drove the car southward on Wheeler, with the three children, then aged 11, 6 and past 2 years, riding in the back seat, for the purpose of leaving them at her husband's mother's home for the day, and driving thence to her own place of employment at a furniture factory. As she drove southward on Wheeler and approached the crossing in question, she was driving midway of the west half of the concrete paving at a speed of 20 to 25 miles per hour. When she was about 20 feet north of the crossing, she heard her youngest child scream, looked over her right shoulder, saw that the child had fallen to the floor of the car but was not injured, and returned her attention to the highway. The direction of her car had changed from the south to the southwest. Almost immediately her car 'hit the railroad track'; 'hit a hole there and then it just throwed me over'. The hole which her car first hit was not at the 'naked' rails, but was in a hole between the tracks. (She indicated a point on one of the photographs somewhat to the left of the exposed rails.) When she hit the hole, her car turned to the right and then 'flipped' over the tracks onto its left side. The whole episode occurred within about a second. The car bounced across the track and was turned over on its left side. Plaintiff was severely injured and shocked, the children were screaming and plaintiff was worrying about them and trying to get the youngest child out of the car.

Hillhouse, with passengers in his taxicab, was driving northward on Wheeler Avenue and came to the crossing at almost the same moment plaintiff came. He testified: His rear wheel had crossed when her front wheel hit the track. He...