Jenkins v. Wabash R. Co., s. 46233

• Decision Date: 09 March 1959
• Docket Number: Nos. 46233,46232,No. 2,s. 46233,2
• Citation: 322 S.W.2d 788
• Parties: Robert L. JENKINS, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, and Herman J. Klein, Administrator of the Estate of Ruby Klein, Deceased, Appellants. William B. HUTCHERSON, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, and Herman J. Klein, Administrator of the Estate of Ruby Klein, Deceased, Appellants
• Court: Missouri Supreme Court

Page 788

322 S.W.2d 788

Robert L. JENKINS, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, and Herman J. Klein,

Administrator of the Estate of Ruby Klein,

Deceased, Appellants.

William B. HUTCHERSON, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, and Herman J. Klein,

Administrator of the Estate of Ruby Klein,

Deceased, Appellants.

Nos. 46233, 46232.

Supreme Court of Missouri, Division No. 2.

March 9, 1959.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 13, 1959.

Ely & Voorhees, Alphonso H. Voorhees, St. Louis, for Wabash R. Co., (Defendant) Appellant, John L. Davidson, Jr., St. Louis, of counsel.

Doris J. Banta, Byron A. Roche, St. Louis, for appellant, Herman J. Klein, Carter, Bull & Baer, St. Louis, of counsel.

N. Murry Edwards, Ninian M. Edwards, St. Louis, for respondent, Robert L. Jenkins.

Hale W. Brown, Kirkwood, for respondent William B. Hutcherson.

STOCKARD, Commissioner.

Robert L. Jenkins and William B. Hutcherson each brought suit against Wabash Railroad Company and Herman J. Klein, administrator of the estate of Ruby Klein, for the wrongful death of their respective wives. The cases were consolidated for trial, and the defendants have appealed from judgments entered in favor of Robert L. Jenkins in the amount of $25,000 and in favor of William B. Hutcherson in the amount of $20,000.

On Saturday, December 17, 1955, at about 1 o'clock in the afternoon Mrs. Ruby Klein, her daughter Mrs. Allene Jenkins, and her sister Mrs. Goldie Hutcherson, left the Hutcherson residence in St. Charles County to drive to Wentzville, Missouri. Mrs. Klein drove over what is referred to as the Josephville road to where it crossed the tracks of the Wabash Railroad about 900 feet west of the Gilmore station. They intended to cross the tracks and go to Old Highway 40, just south of the tracks, and then to Wentzville. However, as they crossed the railroad tracks the automobile was struck by the diesel engine of a Wabash passenger train, and all three occupants were instantly killed.

Each case was submitted to the jury on the negligence of Mrs. Klein in that she failed 'to keep a watch to the right or west as she drove her said automobile onto the railroad track,' and on the negligence of Wabash in that the train was operated at excessive speed over a dangerous crossing.

Wabash first contends that the trial court erred in overruling its motion for a directed verdict and for judgment notwithstanding the verdict because the evidence does not show that the speed of the train was excessive or that it was the proximate cause of the collision. These contentions necessitate a more detailed statement of the evidence, and in determining whether plaintiffs made submissible cases for the jury, we must consider all of the evidence in a light most favorable to plaintiffs' contentions. Dunn v. Terminal Railroad Association of St. Louis, Mo.Sup., 285 S.W.2d 701. 'The cause may not be withdrawn from the jury unless the facts in evidence and the legitimate reasonable inferences which may be drawn therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ.' Holmes v. NcNeil, 356 Mo. 763, 203 S.W.2d 665, 668.

The Josephville road approaches the Wabash tracks from the north. When it reaches the area of the tracks it turns westward and runs parallel with the tracks for a little more than 300 feet. It then turns to the left or southward and crosses the tracks. The level of the Josephville road, as it runs parallel with the tracks, is substantially lower than the level of the tracks in varying distances up to 12.9 feet. As the road approaches to within approximately 200 feet of the crossing it rises, at first gradually but more steeply as the crossing is neared, until it is almost level with the tracks. At the turn toward the tracks the road is banked with the outside part of the curve or western part of the road being two and one-half feet higher than the inside of the curve. An automobile must be within eight to twelve feet of the north rail before it is substantially level with the tracks, and at this location it would be headed south and would be approaching the tracks at approximately a right angle. The view to the west is then unobstructed for almost one-half mile except for the limited obstruction by a post nine feet tall located about sixteen feet north of the tracks and a few feet west of the road and having the usual crossed boards at the top denoting a railroad crossing. Because of the rise in elevation of the Josephville road and the bank of the road in the curve, the front bumper of an automobile would have to be approximately eighteen and one-half feet from the north rail of the track before the driver could see down the tracks to the west. The crossing itself is narrower than the road and not wide enough for cars to pass safely on it. Mrs. Hutcherson lived about two and one-quarter miles from the crossing and was familiar with it. Mrs. Klein and Mrs. Jenkins both lived in St. Louis but had been over the crossing on several occasions. There were no automatic signals at the crossing.

The Wabash train was a passenger train consisting of a diesel engine and seven cars. As it approached the crossing it was traveling eastward between 75 and 78 miles an hour. The track immediately to the west of the crossing where the collision occurred was perfectly straight, but about 300 feet west of the crossing it began to curve to the southwest. The fireman, who was seated on the left side of the engine, was the only eyewitness of the collision who testified. His testimony was indefinite whether the Klein automobile was standing still or approaching the crossing when he first saw it. But in either event, according to the fireman, the automobile was stopped or came to a stop before it reached the crossing, and at that time it was 'sitting in the clear;' he could see the full length of it and to the best of his recollection it was approximately level; and it then pulled out in front of the train when the train was 'right on top of it.' He could see the passenger in the front seat of the car, but could not see the driver or the passenger in the rear seat. After the automobile moved onto the track it stopped with its rear wheels about at the 'center of the track.' The fireman could not remember if the train slowed any before the impact, but it had gone into an 'emergency stop.' The whistle of the train was blown at the whistle post and it was continually blown as the train approached the crossing. The bell was ringing at the time of the impact.

In addition to the above physical aspects of the crossing plaintiffs offered evidence to show the use of the crossing by the public. While there is no evidence that the crossing was located in a town, it is in or very near to a community known as Gilmore which is located north of the crossing. In one of the photographs introduced in evidence there can be seen eleven buildings, most of them houses, located in the neighborhood of the crossing. The school bus is driven over the crossing on the average of six times each day. Eight roads north of the crossing connect with Josephville road, and the people living in the small communities of Josephville, Gilmore and St. Paul frequently use the crossing to go to and from Wentzville or St. Charles, the only nearby large communities. There are between 100 and 125 families in St. Paul and over 80 families in Josephville. Two or three automobiles use the crossing every ten minutes, and when traffic is stopped for about ten minutes for a freight train as many as five automobiles would be stopped on each side waiting to cross. Most of the neighboring residents are farmers, but some of them have members of their families who commute each day to places of employment and use the crossing.

It has been stated that 'in the country, between stations away from congested populations, it is not negligence for passenger trains to run at a rapid speed over road crossings.' Burge v. Wabash R. Co., 244 Mo. 76, 148 S.W. 925, 932; McGee v. Wabash R. Co., 214 Mo. 530, 114 S.W. 33; Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660, 665. But, whether negligent speed exists depends upon all the surrounding circumstances, Montague v. Missouri & K. I. Ry. Co., 305 Mo. 269, 264 S.W. 813, 816; Toeneboehn v. St. Louis-San Francisco Ry. Co., 317 Mo. 1096, 298 S.W. 795, 801, 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.'' Pentecost v. St. Louis Merchants' Bridge Terminal R. R. Co., 334 Mo. 572, 66 S.W.2d 533, 536; Herrell v. St. Louis-San Francisco Ry. Co., 322 Mo. 551, 18 S.W.2d 481; Graves v. Atchison, T. & S. F. Ry. Co., supra. Therefore, it is material in this case to determine whether the evidence is sufficient to authorize a finding by the jury that the crossing where this accident occurred 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 was operated was, under all the circumstances, excessive so as to constitute actionable negligence.

Although the crossing in this case was not in a thickly populated area, it was not the seldom-used crossing in a country area referred to in such cases as Burge v. Wabash R. Co., supra, and Graves v. Atchison, T. & S. F. Ry. Co., supra. Also, the public road does not approach the crossing from the north at right angles to the railroad track with an unobstructed view as in the Graves case. The evidence indicates that the crossing is located in a substantially populated rural area, as distinguished from an urban area or country area, and that it is extensively used by the traveling public. Also, the view of the tracks to a person...