Lohmann v. Wabash R. Co.
| Citation | 364 Mo. 910,269 S.W.2d 885 |
| Decision Date | 12 July 1954 |
| Docket Number | No. 1,No. 43878,43878,1 |
| Parties | LOHMANN v. WABASH R. CO. et al |
| Court | United States State Supreme Court of Missouri |
Walter Wehrle, Forrest Boecker, Clayton, for appellant.
Albert E. Schoenbeck, St. Louis, for defendant-respondent Wabash R. Co.
Sievers, Reagan & Schwartz, St. Louis. for respondent J. E. Latta const. co.
Martha Naomi Lohmann, plaintiff-appellant, in her action for damages for the alleged wrongful death of her husband, had a verdict of the jury and the ensuing judgment thereon for $15,000 against defendants Wabash Railroad Company and J. E. and Claudia Latta, doing business as J. E. Latta Construction Company. Upon defendants' timely motions therefor the trial court thereafter set aside the judgment entered upon the jury's verdict, and entered judgment in favor of defendants in accordance with defendants' separate motions for a directed verdict filed at the close of all the evidence in the case. The plaintiff thereupon appealed to this Court.
Plaintiff's husband, Jacob D. Lohmann, was killed when the southbound truck he was driving was struck by an eastbound Wabash mail train at about 8:30 a. m., on December 26, 1951, at the Eva Avenue public grade crossing in St. Louis County, Missouri. The train was pulled by a Diesel locomotive. The length of the entire train was 'upwards of seven hundred and fifty feet.' It was running at about 60 miles an hour. From the Eva Avenue crossing the railroad track was straight to the west for at least two miles. The day was fair and clear. The case was submitted upon primary negligence.
As against defendant Wabash, plaintiff's instruction No. 1 submitted her case to the jury upon the theory that a 'grease shack' was located upon defendant's right-of-way west of the crossing and north of the railroad track; that the grease shack obstructed the vision of plaintiff's decedent to the west along the track while he was on Eva Avenue, and continued to obstruct his view of the approaching eastbound train as he approached the railroad track until the front of his truck was on the north rail of the railroad track; that 'such obstruction to vision' rendered the crossing unusually hazardous to plaintiff's husband; that under the above circumstances 'the sounding of a bell and whistel (on the Diesel locomotive) was not adequate to warn' deceased of the train's approach from the west; that Wabash could have known of such 'unusually hazardous condition' in time thereafter to have 'provided adequate means of warning' to persons using the crossing, to enable such persons to remain clear of the tracks when trains approached, but that Wabash negligently failed to do so.
As against defendants J. E. and Claudia Latta, plaintiff's instruction No. 2 submitted her case to the jury upon the theory that such defendants caused the 'grease shack' to be placed on the Wabash right-of-way at the place above alleged; that that shack obstructed Lohmann's vision as above noted; that Latta knew the shack would so obstruct vision as above; that the vision of plaintiff's decedent was obstructed as above 'so that he could not stop in a place of safety for the purpose of looking out for approaching trains'; that Latta was negligent in permitting the shack to be so placed and to so remain; and that such negligence of these defendants proximately caused the death of plaintiff's deceased husband.
On the morning of his fatal injury plaintiff's husband was a truck driver in the employment of Grantwood Construction Company. That company was engaged in trucking in and out of the 'Atomic Energy Grounds,' a restricted and fenced area lying north of and about 500 feet west of the Eva Avenue railroad crossing. When Lohmann's truck was checked out of the east gate of the 'Atomic Energy Grounds,' for the trip in question, he then drove it east on the Brown road to Eva Avenue. Brown road lay about 60 feet north of and paralleled the Wabash track. Lohmann then turned the truck off of Brown road to his right and south into Eva Avenue, turning just to the north and east of a certain telegraph pole which pole, by steel tape measurement, was located 52 feet north of the railroad track and just west of Eva Avenue. Entering onto Eva Avenue, Lohmann drove the truck south toward and onto the railroad track where his truck was struck by the eastbound Wabash train. At the west edge of Eva Avenue and 10 feet north of the north rail there was a standard railroad crossing sign with wooden crossed arms, upon which was painted in large letters the words, 'Railroad Crossing.' For several weeks prior to December 26, 1951, Lohmann had driven the truck over the same route and over the same railroad crossing from fifteen to twenty times each day. The approach to the track on Eva Avenue from the north was slightly upgrade.
Defendants J. E. and Claudia Latta had been engaged in some road work under construction near the 'Atomic Energy Grounds.' These defendants owned and had placed the above mentioned 'grease shack' on the Wabash right-of-way north of the track during the first week in October, 1951. It was there at the time of this occurrence. The grease shack contained grease and oil, was kept locked, and its contents were used by Latta as needed to lubricate caterpillar and road grading machinery used nearby. The shack was eight feet wide from north to south, ten feet long from east to west, about 12 feet high, and was on wheels so it could be moved from one construction job to another. It was a part of Latta's general equipment in doing road jobs with large machinery. At the time of the occurrence in question the south side of the grease shack was 23 feet and 7 inches north of the north rail of the railroad track and the east end of the grease shack was 147 feet west of Eva Avenue.
It appears from the testimony of one of plaintiff's witnesses, Mr. Barbour, a Civil Engineer who made measurements with a steel tape, and who made observations as to visibility and measured such distances, that when a southbound truck driver approached the track on the Eva Avenue crossing, the vision to the west along the railroad track is clear, i. e., the south-bound truck driver could see an eastbound train, west of the crossing and south of the grease shack, as follows: when the front of the truck was 50 feet north of the north rail, the train could have been seen 290 feet west of the crossing; when the truck was 40 feet north of the north rail, the train could have been seen 375 feet west of the crossing; when the truck was 35 feet north of the north rail, the train could have been seen 475 feet west of the crossing; when the truck was 30 feet north of the north rail, the train could have been seen 750 feet west of the crossing; when the truck was 25 feet north of the north rail, the train could have seen 3800 feet west of the crossing; when the truck was 15 feet north of the north rail, the train could have been seen two miles west of the crossing; when the truck was 10 feet north of the north rail, the train could be seen two miles west of the crossing; when the truck was five feet north of the north rail, the train could be seen two miles west of the crossing; and that when the truck reached the north rail, the train could be seen two miles west of the crossing.
Photographic exhibits introduced in evidence and filed here confirm beyond all doubt the just above testimony of the engineer witness. The following attached photographic exhibit 2, taken with the camera on Eva Avenue pointed west along the railroad track, and with the camera located 23 feet north of the north rail, and with the grease shack in the exact location it stood at the time of the occurrence, may aid in an understanding of the situation for the exhibit demonstrates the visibility south of the grease shack and west along the track over which the train approached the crossing.
One of plaintiff's witnesses, Arthur Smith, had checked Lohmann out of the east gate of the Atomic Energy Grounds just shortly before this collision. Smith was at his post of duty 500 or more feet west and north of the Eva Avenue crossing and saw the eastbound train approaching the crossing. Smith testified, The collision then occurred. Smith did not go down to the scene of the collision. Smith also testified that he had used the crossing in question to drive to and from his work at the Atomic grounds, and that the 'grease shack' obscured the view of a person driving south toward and approaching the Eva Avenue railroad crossing until 'you were on the track.' Smith also further testified:
* * *
'
[Emphasis ours.]
Another of plaintiff's witnesses, Mr. Barkey,...
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