Honeycutt v. Missouri Pac. R. Co., 53769

• Decision Date: 14 April 1969
• Docket Number: No. 53769,No. 2,53769,2
• Parties: Raymond HONEYCUTT and Bertha Honeycutt, Respondents, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

Page 481

440 S.W.2d 481

Raymond HONEYCUTT and Bertha Honeycutt, Respondents, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 53769.

Supreme Court of Missouri, Division No. 2.

April 14, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 12, 1969.

Wesner, Wesner & Meyer, Robert L. Wesner, Sedalia, for respondents.

Charles H. Howard, Hendren & Andrae, Jefferson City, William K. Gibson, Martin, Gibson & Gardner, Sedalia, for appellant.

BARRETT, Commissioner.

Raymond Honeycutt, a farm laborer, and his wife, Bertha, have been awarded $21,500.00 damages against the Missouri Pacific Railroad for his personal injuries and her loss of services. Ray was employed by the TP Company and on June 15, 1966, was engaged together with Niles Forbes in harvesting the oat crop on the Cloney farm 2.3 miles north of Sedalia. Forbes was operating the combine and Ray was hauling the threshed grain to storage in a wagon attached to a farm tractor. The railroad's Lexington Branch, since abandoned, runs through the Cloney farm and affording access to the separated tracts is a private road and a crossing built and maintained by the railroad. About 3 o'clock in the afternoon, with his 3rd or 4th load, as Ray proceeded on his way to the granary from the east field to the west field down the private road and over the crossing his tractor was struck by the Missouri Pacific's northbound 'one-a-day' train and he was so injured that he had no recollection of the train. He said, however, that as he approached the crossing he looked and listened but did not see or hear a train. Thereafter he changed gears and at a speed of one to one and a half miles an hour traveled 35 to 40 feet upgrade to the crossing without stopping. There was no signal by the oncoming train. He said that by reason of trees, weeds, brush and black-berry vines he could see '(j)ust a little, but not very darn much' to the north. He said that at the crossing the brush and weeds were within 12 to 14 feet of the ends of the ties and only in the middle of the track could one see down the track a quarter of a mile to a curve. Ray said that because of the brush and trees he could not see anything 'until you get out to the track.'

Forbes said that he saw the train coming at a speed of 40 miles an hour, stepped off his combine and waving a handkerchief attempted to warn the train crew, 'I was aiming to stop him,' the engineer waved back but did not heed the warning. Forbes also described the trees and brush and said that Ray 'couldn't see nothing until he drove on the track.' As to whether the engineer could see Ray, he said, 'I don't see how he could have where he was coming.' He too said that the train gave no signal and as to its noise said, 'I would say it didn't have the power on for it didn't make enough racket.' And then he heard a 'Big bang. I knew then what happened.'

Ray and Forbes were corroborated in large measure by the engineer who said that the track was downgrade from the curve a quarter of a mile and he was probably coasting and saw the tractor 'just moments before' it was hit, 'I just seen the front end approaching from behind the brush there.' He said that he could not see more because of the 'brush and weeds there,' he said the tractor was but 3 to 4 feet from the rail when he first saw it. He said of the surroundings, 'It was brushy and straight downhill' and if one 'stuck' his head out of the locomotive he would 'probably get hit maybe. Sometime or other. Through limbs sticking out.' The track was straight for a quarter of a mile, the engineer could see the roadbed ahead but 'on account of the brush' he could not see the crossing. He said that he last sounded the whistle at the U.S. 65 Highway crossing about one-third of a mile from the farm crossing. When he finally saw the tractor 'I bent to my emergency,' the tractor was then but 50 feet away and at a speed of 20 to 25 miles an hour he could not stop the train before it struck the tractor. The train traveled 'about fourteen cars,' about 1000 feet, before stopping and at that point because of the 'cars, brush and stuff' he could not seek back to the crossing. In describing the roadbed the engineer said, '(i)t was a rough piece of track.'

The appellant railroad contends that the court erred in not sustaining its motions for judgment for the reasons that Ray was guilty of contributory negligence as a matter of law, and that plaintiffs 'failed to plead and submit a cause of action against defendant, as defendant was not under a duty to keep its right of way clear of vegetation.' In any event the railroad contends that it is entitled to a new trial because Instructions 2 and 3 violate Civil Rule 70.01, V.A.M.R. and erroneously submit 'an issue of general negligence' and 'failed to make a causal requirement between the charged negligence and the collision.' It is not necessary to examine each of these claims in detail or to further set forth the facts and circumstances. It should be noted in passing that appellant does not argue that in no event do plaintiffs have a cause of action, the specific assignment by which it is bound is that there was 'no duty to keep its right of way clear of vegetation.' In support of its basic contention of no duty to keep its right-of-way clear the railroad relies on a Kentucky case and two cases from Alabama. These cases, particularly in view of numerous relevant Missouri decisions, are less than helpful and have served only to obscure fundamental problems. To illustrate, the rationale of the Kentucky case, Spalding v. Louisville and N.R. Co., 281 Ky. 357, 136 S.W.2d 1, is that private ways and crossings 'when otherwise not qualified by contract or obligatory terms in their creation, impose no duty upon the servient estate to maintain them in a safe traveling condition. On the contrary, such duty is imposed upon the dominant estate,' therefore there was as to the plaintiff, a total stranger to the private road, no duty on the railroad to maintain 'the safety of the private passway for travel.' (Emphasis supplied.) In the earlier Alabama case, Atlantic Coast Line R. Co. v. Carter, 214 Ala. 252, 107 So. 218, there was in the first place 'a contract in writing, into which the defendant company and the landowner entered in 1916,' but basically the rationale of the case is twofold; one, the rule in that jurisdiction is that 'the only duty resting upon defendant's engineer was to avoid injuring intestate after becoming aware of his presence and peril' and, second, as to weeds and other obstructions deceased 'was a mere licensee, he took the crossing as he found it.' The second Alabama case, Alabama Great Southern R. Co. v. Johnston, 281 Ala. 140, 199 So.2d 840, as appellant points out in distinguishing respondents' cases involved an instance of 'driving an automobile into a moving train on a public crossing.' And even there, citing the Carter case, the court made a distinction as to 'unnecessary obstructions such as trees, bushes, and tall grass' as a circumstance.

The one Missouri case relied on by the railroad, Wright v. St. L.-S. F. Ry. Co., 327 Mo. 557, 37 S.W.2d 591, all but completely refutes its claim that Ray was guilty of contributory negligence as a matter of law in driving onto the crossing. There the obstruction was boxcars on a siding and the court said, in all the circumstances, 'it cannot be held that his failure to look at the time and place was negligence as a matter of law.' And see, in addition, on contributory negligence as a jury question, Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64; Zumault v. Wabash R. Co., Mo., 302 S.W.2d 861; and Rent-frow v. Thompson, 348 Mo. 970, 156 S.W.2d 700, 703: 'It is not, however, ordinarily necessary for him to leave his automobile and to go ahead and reconnoiter.' This line of cases is be contrasted with the recent case of Davenport v. Wabash R. Co., Mo., 435 S.W.2d 641, applying the rule, inapplicable to the present circumstances, indicated by the last headnote: 'Where it would not have been possible for motorist to have failed to see southbound train if he had looked to north from almost any point as he was driving toward railroad crossing, his failure to look constituted negligence and his widow was not entitled to recover from railroad in wrongful death action.'

On the other hand, the statutes (RSMo 1959, §§ 389.650 and 389.660, V.A.M.S.) and cases relied on by the respondents also miss the mark. The instances of obstructions on private crossings, a fallen telephone wire in which a mule colt became entangled (Stewart v. Quincy, O. & K.C.R. Co., 142 Mo.App. 322, 126 S.W. 1003), or a grindstone on the brush-covered right-of-way scaring a lady's horse (McGolderick v. Wabash R. Co., 200 Mo.App. 436, 200 S.W. 74), or a case governed by the law of Kansas even though it involved high weeds and a failure to give a statutory signal (Van Buskirk v. Missouri-K.-T. R. Co., Mo., 349 S.W.2d 68) are not helpful to a resolution of the fundamental question involved in this appeal.

Upon the essential merits of the cause the authoritative, if elusive, authorities are the Missouri cases dealing with similar factual situations and the rules to be distilled as they relate to obstructions and vehicular collisions on private roads and so-called private railroad crossings. In this connection it is not necessary to repeat the noted essential factual circumstances and demonstrate in each instance the precise meaning and bearing of each decision. Starting with the earliest case (1905) all unearthed after considerable research, Ayers v. Wabash R. Co., 190 Mo. 228, 88 S.W. 608, involving an intoxicated pedestrian who is using a 'footpath' sat down on the end of a crosstie and 'there all consciousness ceased and his memory of events ended.' While a verdict was there properly directed for the railroad, these observations by the court are pertinent:

'There is no statute requiring the defendant to give a signal by bell...