Koehler v. Burlington Northern, Inc.

• Decision Date: 24 January 1978
• Docket Number: No. 38259,38259
• Citation: 573 S.W.2d 938
• Parties: Goldie KOEHLER et al., Respondent (Plaintiffs), v. BURLINGTON NORTHERN, INC., Appellant (Defendant). . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 938

573 S.W.2d 938

Goldie KOEHLER et al., Respondent (Plaintiffs), v. BURLINGTON NORTHERN, INC., Appellant (Defendant).

No. 38259.

Missouri Court of Appeals, St. Louis District, Division Three.

Jan. 24, 1978.

Motion for Rehearing and/or Transfer Denied March 10, 1978.

Application to Transfer Denied June 20, 1978.

Lucas & Murphy, Joseph A. Murphy, St. Louis, for appellant (defendant).

Charles E. Gray, Gray & Ritter, St. Louis, for respondents (plaintiffs).

GUNN, Judge.

This appeal arises from a suit by plaintiffs, Goldie and Curtis Koehler, against defendant, Burlington Northern, Inc., for injuries sustained as a result of a collision between plaintiffs' van and defendant's freight train. The jury verdict was for plaintiffs in the amount of $605,000. On appeal defendant contends that plaintiffs' verdict directing instructions were erroneous in several respects. It further contends that the jury's largess in its award of damages was so grossly excessive as to indicate its verdict was the product of bias and prejudice. Defendant argues that the amount was unjustified under the evidence in light of awards in other cases involving similar injuries and that a remittitur is required.

We affirm.

The collision occurred in Lincoln County, north of Elsberry, as plaintiffs were returning from a July 4 family outing in Clarksville in celebration of a relative's return from military service. Plaintiff Curtis Koehler was driving the van and was proceeding south on Highway 79 to its intersection with Highway P. At the intersection, Mr. Koehler came to a complete stop, then turned left onto Highway P and at a speed of 8-15 m.p.h., drove toward defendant's railroad crossing which was 75-100 feet east of Highway P. As he approached the crossing, Mr. Koehler decreased his speed until he came to a momentary stop within five feet of the tracks. He described his stop as a "rolling St. Louis stop." Both he and his stepson, Ed Forrester, who was riding next to him in the front passenger's seat, looked up and down the track to see if a train was coming. Neither saw nor heard the approaching train. After his momentary stop, Mr. Koehler continued across the tracks. The van was almost completely across when Mr. Koehler first heard the oncoming locomotive. He turned to look just as the train crashed into the van 6-8 inches from the rear on the passenger side. The van was spun clockwise 270 degrees and dragged 15-20 feet up the track. Goldie Koehler, who was riding in the second to last seat, was thrown from the van and landed unconscious near a railroad crossbuck sign. Apparently no one other than Mrs. Koehler was seriously injured, though at least one of the Koehlers' children was also thrown from the van.

At the time of the collision, the van's windows were closed and the air conditioner was on. Mr. Koehler testified that he had previously driven the van under similar conditions and had been able to hear train bells and whistles when sounded. Both Mr. Koehler and his stepson Ed testified that the train had failed to sound any warning signal prior to its approach. Two other eyewitnesses testified that they did not recall hearing any warning signal by the train, but both admitted on cross examination that they could not state positively that none was sounded. Mrs. Koehler had no recollection of the events surrounding the collision.

Witnesses for the railroad testified that the train approached the Highway P crossing at a speed of 25 miles per hour. Approximately 200 feet from the crossing, the train's brakeman first noticed plaintiffs' van moving towards the crossing. Nothing appeared unusual to the brakeman as the van slowed its approach and came to a stop near the crossing. When the train had approached to within 50 to 75 feet of the crossing, the brakeman saw the van accelerate and realized it was attempting to cross the tracks ahead of the train. He immediately alerted the engineer who activated the emergency braking system. The train did not come to a stop until its caboose was over 100 feet beyond the crossing. The engineer maintained that he had begun sounding the standard two long, one short, one long, blasts of the locomotive's whistle at the whistling post, 480 feet before the crossing. He stated that he ceased his warning signals only when it became necessary to do so in order to apply the emergency brakes. The brakeman corroborated the engineer's testimony that the train's whistle had been sounded from the whistling post. Whether the train's bell had been sounded, in addition to the whistle, was not known by the engineer.

Koehler's inability to see the approaching train was attributed to the high brush and weeds which were allowed to flourish on the railroad's right-of-way. Both Mr. Koehler and his stepson Ed testified that when stopped at the tracks, they had looked in the direction of the on-coming train, but did not see it because of the high weeds. In addition to this testimony, several witnesses testified that the weeds and brush were 6-8 feet tall at the time and that they were allowed to grow so close to the track that drivers attempting to cross had to pull almost onto the tracks to see if a train was coming. Defendant's witnesses testified that on the day of the accident the weeds were no more than 3 feet high. Witnesses for both parties agreed that shortly after the accident the weeds and brush were cut.

The Highway P crossing was marked by crossbucks to indicate the presence of a railroad crossing. No mechanical warning device or crossing gate had been installed even though evidence showed that Highway P was heavily travelled throughout the summer months by persons seeking access to Mississippi River recreational areas.

Immediately after the collision, an ambulance was summoned for Mrs. Koehler who was unconscious. She was first taken to a local hospital, but because of the seriousness of her injuries was transported to St. Joseph's Hospital in Kirkwood. When she arrived she was in extremely critical condition and remained so for several days. We will detail Mrs. Koehler's injuries in our discussion of the points raised concerning the alleged excessiveness of the verdict. It is sufficient here to say that she produced evidence of severe injuries to many of her limbs and internal organs, resulting in permanent scarring, disfunction and disability.

At the conclusion of the evidence the jury returned verdicts in favor of the plaintiffs. They awarded Mr. Koehler $4,000 damages for injuries to his wife and $1,000 for damages to his property. Mrs. Koehler was awarded $600,000 in damages resulting from her injuries. The railroad appeals both awards.

Defendant first argues that plaintiffs' verdict directing instructions were defective in that they did not submit plaintiffs' theory of negligence as pleaded; that they erroneously stated the law regarding defendant's duty to warn the public of its approach to a crossing; and that they failed to submit the ultimate issue of fact. The instruction complained of was submitted as follows:

"Your verdict must be for plaintiff Goldie Koehler if you believe:

First, defendant failed to give an adequate and timely warning, and

Second, defendant was thereby negligent, and

Third, such negligence directly caused or directly contributed to cause damage to plaintiff Goldie Koehler.

The term 'negligence' as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances. " ¹

Defendant's first attack on the verdict directing instructions is that plaintiffs did not plead the inadequacy or the untimeliness of the warning given but only that no warning was given at all. ² Plaintiffs rely on the following allegation contained in their petition as the basis for the instruction given.

"3. The aforesaid collision and the resulting injuries and damages sustained by plaintiff were directly and proximately caused by the negligence of defendant in the following respects, to-wit: . . . .

c) It failed, through its employees and the negligence of its employees, to sound a warning of the approach of said train to said crossing as required by the laws of the State of Missouri."

Instructions must be within the general scope of the pleadings. Price v. Seidler, 408 S.W.2d 815 (Mo.1966). An instruction which is broader than the pleadings i. e., one that allows the jury to find for plaintiffs on a basis different than that pleaded and proved, is erroneous. Faught v. St. Louis-San Francisco Ry. Co., 325 S.W.2d 776 (Mo.1959); Benham v. McCoy,213 S.W.2d 914 (Mo.1948). Here, plaintiffs' pleadings contained an allegation that the defendant was negligent in failing to sound a warning as required by the laws of this state. Such an allegation is broad enough to encompass the common law and decisional law in addition to the statutory law. Thus, if the law under any of these sources requires defendant to give adequate and timely warning, the instruction given is within the scope of the pleadings.

Holding as we do on the breadth of plaintiffs' pleadings, we reach defendant's second point regarding the verdict directing instructions. We indite the law of this state governing a railroad's duty to signal its approach at a public crossing and examine the instructions to determine if they embody the law. By statute a railroad is required to ring its bell or sound its whistle from a point no less than 80 rods from the crossing. Failure to sound one or the other of the prescribed signals results in liability by the railroad for all damages proximately caused by its omission. § 389.990 RSMo.1969. This statutory warning is not coextensive with the railroad's duty to warn of its approach under the common law as interpreted by the courts of this state. Doolin v. Swain, 524 S.W.2d 877 (Mo. banc 1975); Sisk v. Chicago, B. & O. Ry. Co., 67 S.W.2d 830 (Mo.App.1934). Under the common law, the railroad has a duty...