Houghton v. Atchison, T. & S. F. R. Co., 53049

• Decision Date: 27 October 1969
• Docket Number: No. 53049,53049
• Citation: 446 S.W.2d 406
• Parties: Richard Lee HOUGHTON, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

Page 406

446 S.W.2d 406

Richard Lee HOUGHTON, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, a Corporation Appellant.

No. 53049.

Supreme Court of Missouri, En Banc.

Oct. 27, 1969.

Thaine Q. Blumer, Kansas City, Blumer, Wright, Bittiker & Rocha, Kansas City, of counsel, for plaintiff-respondent.

George L. Gordon, Sam D. Parker, Jack W. R. Headley, Joseph E. Stevens, Jr., Kansas City, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel, for defendant-appellant.

DONNELLY, Judge.

In this jury-tried action for damages resulting from an automobile-train collision in Clay County, Missouri, plaintiff received a verdict in the amount of $50,000. Defendant appeals.

The collision occurred where defendant's railroad track crosses Route D near Lawson, Missouri. Route D extends east and west. The track extends northwest and southeast and intersects the highway at a rather severe angle. The highway is two-lane blacktop and is straight and level west of the crossing.

The collision in controversy occurred at approximately 9:00 P.M., October 26, 1965. Plaintiff was driving a 1953 Chevrolet automobile with brakes and lights in good condition. Defendant's train consisted of two diesel engines, nine freight cars, and a combination passenger-baggage car on the rear.

Prior to the collision in controversy, as the train was approaching the crossing from the northwest, a westbound automobile came to the crossing and was turned by its operator into the ditch north of the highway and northeast of the track with its left rear protruding onto the track. The left rear of the automobile was struck by the front engine of the train. The train stopped with the two engines blocking the highway. The two engines were uncoupled from the balance of the train and the two engines were moved southeast of the crossing, leaving the freight cars and combination car northwest of the crossing and the highway clear. At this time, the conductor and rear brakeman flagged highway traffic at the crossing, one west of the crossing and one east of the crossing. After four or five minutes the engines backed across the crossing and coupled onto the freight cars and combination car. Three or four automobiles stopped east of the crossing. The conductor, who was flagging west of the crossing, boarded the engine, instructed the engineer to proceed to the southeast, and returned to the ground east of the crossing. The train started forward. The conductor and rear brakeman boarded the train from the east side of the rear car of the train as it left the crossing. From the time the train started forward there was nobody flagging traffic on the west side of the crossing.

In the meantime, plaintiff, not knowing of the above occurrences, was approaching the crossing from the west. He was following an automobile operated by Flack Helm of Lawson, Missouri, in an easterly direction. When Flack Helm, 'going about 35 to 40 miles an hour,' 'got pretty close to the railroad (he) happened to see an object moving.' He 'seen then what it was,' 'put on' the right-hand directional signal, 'put on the brake,' pulled to the south shoulder of the highway, and stopped.

Plaintiff testified as follows:

'Q. As you were going east on 'D' you then were behind Mr. Helm's car? A. That is right.

Q. Can you tell us your best estimate or judgment about what distance you were behind his car as you drove along there before the accident happened?

A. To the best of my knowledge I would say probably 70 feet behind him or so.

Q. Do you know what his speed was and what yours was?

A. Well, the last time I looked at my speedometer I was sitting right on just about 40 miles an hour, between 35 and 40.

Q. Between 35 and 40? A. Yes.

Q. All right. Now, as you approached this railroad crossing--oh, can you tell us what was the condition of the road at that time? A. The road was dry.

Q. And the weather? A. It was a dark night but no moisture whatsoever, the weather was okay then.

Q. The weather was okay? A. Right.

Q. All right. Then what, if anything, did you notice about Mr. Helm's car as you drove along there following him just before the accident occurred?

A. He was driving all right as far as I could tell.

Q. What part of the highway was he in and what part of the highway were you in?

A. We both were in the south lane going east.

Q. That would be this lane here then, is that correct?

A. That is right, Sir.

Q. Going this direction along in here?

A. Yes, sir.

Q. Then what happened? Tell us what took place.

A. Well, as we was traveling east all of a sudden I just seen the red lights on his car come on.

Q. You are talking about the taillight now?

A. Yes, sir. And he just turned to the right real fast and I just kind of pulled to the left and just went on around him. I don't remember seeing anything after his brake light come on.

Q. Do you have any memory what happened at all after the time that you started around Mr. Helm's car?

A. I have none whatsoever.'

Plaintiff's automobile struck the right rear of the rear car of defendant's train as it was leaving the crossing at a speed of four or five miles per hour. Plaintiff's automobile came to rest at the crossing in the middle of the eastbound lane of the highway.

Defendant contends the trial court erred in overruling its motion for a directed verdict at the close of all the evidence. It asserts that there was no evidence that it was negligent.

In State ex rel. Thompson v. Cave, 358 Mo. 414, 417, 418, 215 S.W.2d 435, 436, this Court, en Banc, said:

'In this jurisdiction it is established law that a railroad is not guilty of negligence in blocking a public road crossing without providing warnings or signals, unless there are special circumstances which make the crossing peculiarly hazardous, and the burden is on one seeking damages to prove such special circumstances. * * *'

Plaintiff contends that 'defendant's crossing of the train across the highway created an unusually dangerous and hazardous crossing for public use, which was either known to defendant, or should have been known, and that defendant was thereby negligent in failing to warn plaintiff.' We must determine whether a submissible case was made against defendant on the grounds asserted by plaintiff.

'* * * In determining that question we consider the evidence in the light most favorable to those contentions, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to plaintiff the benefit of all favorable inferences that reasonably may be drawn from such evidence. * * * But, of course, the case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissibility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. * * * The question of whether the evidence in a given case is substantial is one of law for the court. * * *' Probst v. Seyer, Mo.Sup., 353 S.W.2d 798, 802, 91 A.L.R.2d 1252.

Plaintiff's position is stated as follows:

'The evidence in this case which created a jury issue as to whether or not 'under the circumstances and conditions shown by the evidence, the crossing of defendant's train across the highway created an unusually dangerous and hazardous crossing for public use' of which 'defendant knew or should have known' and of which 'defendant failed to use ordinary care to warn' is that the crossing was in an urban area. The outskirts of a town of 700 people when there were numerous houses and some places of business and over a highway heavily travelled by automobiles from several other towns and an Army base, which road was the main artery to U.S. Highway 69 and which had sufficient traffic at the time of plaintiff's collision so that at least five automobiles were at the accident scene during the three-minute period immediately preceding the collision. In addition, the train was moving without lights on the rear car and had been stopped at the crossing some ten minutes because of another accident. While stopped and while recoupling the engine to the train, the crewmen acted as flagmen to stop automobiles moving over the highway and at that time had flagmen on each side of the tracks. When the train started forward the crewmen acting as flagman on the west side of the tracks (from which side plaintiff was approaching the train) moved to the east side where a flagman stopped at least three cars moving westbound while the train moved across the highway. The physical construction of the crossing was that the highway ran east and west with the railroad tracks crossing at a severe angle from northwest to southeast. The train travelled 96 feet in crossing a 22 foot highway but there were no mechanical signals at the crossing and no crossbuck facing eastbound traffic.'

Plaintiff cites Jenkins v. Wabash R. Co., Mo.Sup., 322 S.W.2d 788; Coffman v. St. Louis-San Francisco Ry. Co., Mo.Sup., 378 S.W.2d 583; and Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134. These cases do not assist our determination of the issues in this case. The collision of an automobile with the side of a moving train was not involved in either the Jenkins case or the Coffman case. In both cases the leading diesel unit of the train struck the right rear of the automobile. The following conditions, present in the Carson case, are not present in this case: (1) only the narrow edge of the platform of a flatcar was visible to persons coming along the...