Mahan v. Missouri Pacific R. Co.

• Decision Date: 27 September 1988
• Docket Number: No. 53678,53678
• Parties: Linda G. MAHAN, Administratrix of the Estate of Samuel P. Mahan, Deceased, Plaintiff/Appellant, v. MISSOURI PACIFIC RAILROAD CO., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 510

760 S.W.2d 510

Linda G. MAHAN, Administratrix of the Estate of Samuel P Mahan, Deceased, Plaintiff/Appellant, v. MISSOURI PACIFIC RAILROAD CO., Defendant/Respondent.

No. 53678.

Missouri Court of Appeals,

Eastern District,

Division Five.

Sept. 27, 1988.

Application to Transfer Denied Dec. 13, 1988.

Ernest G. Trakas, Joseph L. Walsh, II, Joseph L. Walsh, III, St. Louis, for plaintiff/appellant.

Patrick J. Hagerty, Michael D. O'Keefe, St. Louis, for defendant/respondent.

SATZ, Presiding Judge.

Samuel Mahan (Mahan) was employed by defendant, Missouri Pacific Railroad Company. While in the engine of a train owned by defendant, Mahan was killed when the train collided with another train owned by defendant. Mahan's widow, administratrix of Mahan's estate and plaintiff here, sued defendant for damages. Plaintiff appeals. We affirm.

Plaintiff sued defendant in four counts. Count I bases liability on res ipsa loquitur. Count II alleges a breach of a duty to warn. Count III alleges a malfunction of train brakes in violation of the Safety Appliance Act, 45 U.S.C. § 1 (1982). Count IV alleges the malfunction of the brake sanding system of Mahan's train in violation of the Boiler Inspection Act, 45 U.S.C. § 23 (1982). At the close of all the evidence, the trial court directed verdicts in favor of defendant on Counts I, II, and IV. Plaintiff moved to amend her pleadings to conform to the evidence, by pleading another claim against defendant based upon defendant's alleged failure to follow one of its own operational rules. Plaintiff's motion was denied. The court submitted the case to the jury on Count III--the alleged malfunction of the train brakes. The jury returned a verdict for defendant. This appeal followed.

Plaintiff attacks two of the directed verdicts, contending she made a submissible case on failure to warn and on res ipsa loquitur. We disagree.

To determine submissibility, we view the evidence in the light most favorable to plaintiff. Morgan v. Toomey, 719 S.W.2d 129, 130-31 (Mo.App.1986).

On October 3, 1982, Mahan was the assigned engineer on defendant's train UMS-02 headed south from Cotter, Arkansas to Memphis, Tennessee. A second crew, referred to as a dead-head crew, boarded the train in Cotter for the ride to Newport, Arkansas, a city north of Memphis. At Mahan's request, the engineer of the dead-head crew operated UMS-02 until the dead-head crew disembarked in Newport. The dead-head engineer testified he had trouble the first time he slowed the train but that the trouble did not reoccur.

After Newport, Mahan and the crew assigned to UMS-02 took over control of the train. The train was then on a portion of track consisting of a single track. This track turns into double tracks at Southbridge Junction south of Newport. UMS-02 proceeded south through Southbridge Junction on the eastern portion of the double tracks. These tracks converge into a single track further south at Glaise Junction. The train could switch from the eastern to the western track at a point about seven miles north of Glaise Junction.

As the front engine of southbound UMS-02 approached Glaise Junction, it passed train SMU-02 which was headed north on the western track. The fireman of the northbound SMU-02 testified that about thirty-five cars of his 70 to 80 car train had passed the Glaise Junction switch and entered onto the double track portion of the track when his engine passed the engine of southbound UMS-02. The northbound fireman heard the emergency brakes being applied on southbound UMS-02 as the two engines passed each other. However, southbound UMS-02 did not stop in time to avoid colliding with that portion of northbound SMU-02 which had not yet traversed the switch onto the double tracks. Mahan and other crew members in the lead engine of southbound UMS-02 died in the crash.

In support of her failure to warn theory, plaintiff contends that defendant's dispatcher knew or should have known the trains were going to collide in time to communicate appropriate warnings. Plaintiff, however, fails to cite evidentiary facts to support this contention.

Plaintiff's evidence showed: Defendant's dispatcher monitored the movement of the trains by lights on an electrical board; the lights were triggered by the trains' movements over specific points on the track; the dispatcher could communicate with each train by phone or radio; and the dispatcher did not communicate any warnings to either train. The trains are directed to slow, stop, or proceed by signal lights along the track. Some signals are set to automatically give a stop signal if there is a signal to proceed for a train travelling in the opposite direction. For a southbound train approaching Glaise Junction from the north, as UMS-02 was, there was an approach signal 2 3/4 miles from the junction and an "absolute" stop signal 100 feet from the junction. Similar signals controlled the movement of a northbound train.

Viewing all the evidence most favorably to plaintiff, the record simply does not show that any of the switch signals were malfunctioning, nor does it show the dispatcher should have been aware of a malfunction if one existed, and it certainly does not show the dispatcher was made aware of a malfunctioning signal in time to communicate the danger of a collision and prevent it. Thus, plaintiff simply did not show how the dispatcher knew or should have known southbound UMS-02 would collide with northbound SMU-02. See Fowler v. Gulf, Mobile & Ohio R.R. Co., 286 S.W.2d 404, 409 (Mo.App.1956); see also Elliott v. St. Louis Southwestern Ry. Co., 487 S.W.2d 7, 14 (Mo.1972).

Plaintiff also follows another tack to support her argument. During cross-examination, an assistant train manager testified that defendant had an operational rule providing that trains on double tracks should be routed on the right-hand track. Plaintiff's evidence showed southbound UMS-02 was on the east-track and northbound SMU-02 was on the west-track of the double tracks in evidence here. The trains, thus, were routed in a left-hand direction, in violation, plaintiff argues, of defendant's so called "right-hand" rule. This routing, plaintiff contends, imposed "a greater duty to warn" on defendant. Plaintiff, however, does not explain what this "greater duty" was. We assume plaintiff means the alleged rule violation is a fact which should have made defendant exercise more caution than defendant would be required to exercise if the alleged violation had not occurred.

To support this argument, plaintiff relies on Southern Ry. Co. v. McGuin, 240 F. 649 (4th Cir.1917), cert. denied 244 U.S. 654, 37 S.Ct. 652, 61 L.Ed. 1373 (1917). McGuin involved the death of a railroad employee who sought to avoid a northbound train by stepping onto the southbound track. However, because of a broken rail, the train was traveling on the southbound track. The court observed:

Running a north-bound train on the south-bound track is not evidence of negligence, and all employes [sic] of the railroad must take notice of the occasional necessity to make the change. Nevertheless as that is not the usual method of running, the railroad company must take notice that their employes [sic] will naturally be somewhat less on guard against a north-bound train running on a south-bound track, and due care requires greater precautions. Id. at 651.

Plaintiff's reliance on McGuin is misplaced. In McGuin, there was evidence the accident was the result of the northbound train running on the southbound track. Here, plaintiff did not show the routing of the trains was the cause of the collision. Plaintiff's evidence did show the distance at which the crew of southbound UMS-02 could see the Glaise Junction "absolute" stop signal was reduced to 923 feet. However, without the evidence of what the sight distance would have been had the trains been on the other tracks, there is no factual basis to conclude the routing of the trains caused or contributed to the cause of the collision.

Plaintiff next contends she made a submissible case under the doctrine of res ipsa loquitur. We disagree.

Res ipsa loquitur is a doctrine based upon circumstantial evidence. The doctrine permits a jury to infer negligence without proof of specific negligent conduct on the part of the defendant. In Missouri, we apply the doctrine and, thus, permit the inference when (1) the incident resulting in injury is of the kind which ordinarily does not occur without someone's negligence; (2) the incident is caused by an instrumentality under the control of the defendant; and (3) the defendant has superior knowledge about the cause of the incident. E.g. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559 (Mo. banc 1932); McClintock v. Terminal R.R. Ass'n. of St. Louis, 257 S.W.2d 180, 184 (Mo.App.1953). The second element--control--focuses on the defendant as the possible negligent actor. As in any case of negligence, in order to make a submissible case, the plaintiff must show that it was more probable than not that the defendant was the cause of the negligence. See McCloskey v. Koplar, supra at 563. If the plaintiff shows the defendant was in exclusive control of the instrumentality which caused the accident, he has inferentially focused negligence upon defendant. If the plaintiff does not show the defendant's exclusive control of the instrumentality, he still may fix the defendant with responsibility for the negligence by showing the defendant had the right or power to control the instrumentality and the opportunity to exercise it. See e.g., McCloskey v. Koplar, supra at 560. However, if the plaintiff merely shows this constructive control by the defendant, the inference that the defendant's negligence caused the accident does not necessarily follow. The plaintiff must, therefore, adduce additional evidence to show the defendant's responsibility. See Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 511 (1938). The plaintiff...