Missouri Pacific R. Co. v. Mackey, 88-90

• Decision Date: 21 November 1988
• Docket Number: No. 88-90,88-90
• Citation: 760 S.W.2d 59,297 Ark. 137
• Parties: MISSOURI PACIFIC RAILROAD COMPANY and Union Pacific Railroad Company, Appellants, v. Betty L. MACKEY, Executrix of the Estate of Cleo Franklin Mackey, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 59

760 S.W.2d 59

297 Ark. 137

MISSOURI PACIFIC RAILROAD COMPANY and Union Pacific Railroad Company, Appellants, v. Betty L. MACKEY, Executrix of the Estate of Cleo Franklin Mackey, Deceased, Appellee.

No. 88-90.

Supreme Court of Arkansas.

Nov. 21, 1988.

Herschel H. Friday, Michael G. Thompson, Elizabeth J. Robben, Little Rock, for appellants.

Bill Walters, Greenwood, for appellee.

PURTLE, Justice.

This is an appeal from a jury verdict and judgment in a wrongful death case. The death resulted from a pickup truck and train collision at a railroad and highway intersection. The verdict and judgment in favor of the appellee totaled $550,000.00. The appellant argues seven points for reversal: (1) the trial court erred in refusing to direct a verdict in favor of the defendants on the issue of causation; (2) the trial court erred in submitting the whistle and bell issue to the jury; (3) the trial court erred in submitting the issue of conscious pain and suffering to the jury; (4) the trial court erred in submitting the issue of punitive damages to to the jury; (5) the Arkansas vegetation statute is preempted by federal law and the trial court erred in instructing the jury on the statute; (6) the trial court erred in its evidentiary rulings; and (7) Union Pacific railroad company should have been dismissed as a defendant. Although the case is reversed and remanded, it is necessary to discuss all of the points raised to provide guidance at the second trial.

Cleo Mackey was driving his pickup truck south on Highway 41 in Franklin County, Arkansas, about 1:50 p.m., on July 27, 1984, when it collided with an eastbound Missouri Pacific train. Mackey died shortly thereafter as a result of injuries received in the collision. There was testimony to the effect that the truck was traveling south at a speed between 20 and 40 miles per hour immediately prior to the collision. The uncontradicted testimony was that the engineer blew the whistle and sounded the bell when the train was somewhere between 250 and 1500 feet west of the intersection of the railroad and Highway 41.

The pickup left 38 feet of skid marks prior to stopping, with the front end of the truck in the center of the railroad tracks. Expert testimony indicated that the pickup was driving between 20 and 30 miles per hour when the brakes were applied. Also, expert testimony indicated that the truck would have stopped prior to reaching the track if it had not been for loose gravel on the highway. The highway had been treated with hot asphalt and loose gravel on the date of the collision.

Evidence reveals that the railroad had allowed trees and underbrush to grow on the railroad right-of-way near this highway and railroad crossing. The exact distance at which a train could be observed from the highway was not established. Of course, as a vehicle approached the track, the driver could see farther down the tracks and the converse is true as it relates to the engineer operating the train.

A model built at the appellee's request and introduced at the trial portrayed the railroad right-of-way as being heavily overgrown with shrubs and trees. Also, ground level and area photographs of the scene were introduced into evidence. An eyewitness to the occurrence observed the vehicle approaching from the north several hundred feet before it reached the intersection. At the same time, he heard the train whistle and observed the train some 250 feet west of the intersection. He was the first person to the scene and observed the decedent as he was immediately after the occurrence. He was at the vehicle within seconds after the collision and observed the decedent lying partly in the floorboard and partly in the seat of the truck. He could not see the injured party's eyes but his arms were jumping and he was shaking a little bit. He was making a noise when he breathed through his mouth and when he breathed through his nose. The witness stated: "He could not get enough air one way and would try another because he would make two different sounds." The vital signs of the decedent apparently stopped on the way to the hospital, and he was resuscitated. The emergency room doctor, who pronounced him dead in the emergency room, stated that it was "most unlikely" that the decedent experienced any conscious pain and suffering.

I. THE TRIAL COURT ERRED IN REFUSING TO DIRECT A VERDICT IN FAVOR OF THE DEFENDANTS ON THE ISSUE OF CAUSATION.

The appellant argues that the "sole proximate cause of the accident" was the presence of the loose gravel on the highway. There was strong evidence, both expert and otherwise, that the vehicle would have stopped prior to the collision had it not been for the loose gravel. However, the fact that he did not apply his brakes sooner, thereby being able to stop in spite of the loose gravel, may have been the result of an obstructed view caused by the growth on the railroad right-of-way. There was evidence from which the jury may well have found that the undergrowth prevented the decedent from observing the train at an earlier time and place. The burden of proving an independent intervening factor is with the party asserting it. Kelley v. Wiggins, 291 Ark. 280, 724 S.W.2d 443 (1987). Intervening negligence which bars recovery of the original wrongdoer has been discussed by this court in Bashlin v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), and Gatlin v. Cooper Tire and Rubber Company, 252 Ark. 839, 481 S.W.2d 338 (1972). We held in Bashlin that an intervening act of negligence is no defense unless it is the sole proximate cause of the injury or damages and that a party may recover from the original actor if the negligence of the original actor was still a contributing factor. An independent intervening cause has been held to bar recovery from the original tortfeasor in the case of Cowart, Adm'x. v. Jones, 250 Ark. 881, 467 S.W.2d 710 (1971). See also, Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). The growth on the railroad right-of-way was substantial evidence to allow the jury to find that it was a proximate cause of this occurrence. Whether both or either the negligence of the railroad or the highway department were proximate causes of the damage and injuries in this case were matters to be decided by the jury. Hergeth v. Green, 293 Ark. 119, 733 S.W.2d 409 (1987). When reviewing the denial of a directed verdict, we view the evidence in light most favorable to the appellee. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). The trial court did not err in refusing to grant a directed verdict on causation.

II. THE TRIAL COURT ERRED IN SUBMITTING THE WHISTLE AND BELL ISSUE TO THE JURY.

The engineer testified that he started sounding the whistle and bell when he was some fourteen to fifteen hundred feet from the intersection. He stated that he knew that he did so for at least thirteen hundred and twenty feet, which he knew was a quarter of a mile. Two independent witnesses testified that they heard the train whistle sounding before the occurrence. One of these witnesses never saw the train but the other witness witnessed the actual impact. This witness said the train whistle sounded while he was watching the pickup and when he looked toward the train it was about two hundred and fifty feet from the intersection. There was no testimony or evidence introduced to indicate that the whistle or bell did not sound. We recently decided a similar case in Missouri Pacific Railroad Company v. Biddle, 293 Ark. 142, 737 S.W.2d 625 (1987) (Opinion on rehearing). In Biddle we held that in the absence of any evidence that the bell was not sounded the matter should not have been presented to the jury. Since the trial court presented the issue to the jury, we reversed and dismissed because there was no other issue remaining. The testimony of the engineer and the witnesses in the present case was not contradicted. Therefore, it was error to present this matter to the jury. We held it was error to give an inapplicable instruction in Hunter v. McDaniel, 274 Ark. 178, 623 S.W.2d 196 (1981), and CRT, Inc. v. Dunn, 248 Ark. 197, 451 S.W.2d 215 (1970). Since the jury may have found that the train did not ring the bell or sound the whistle, thereby establishing proximate cause, we find prejudicial error.

III. THE TRIAL COURT ERRED IN SUBMITTING THE ISSUE OF CONSCIOUS PAIN AND SUFFERING TO THE JURY.

Witness Gerald Clayton observed the accident and immediately went to the scene. Although he could not see the driver's eyes, he did see him making twisting and jerking movements and heard him making different noises through his mouth and nose. He indicated that when it would become more difficult for the victim to breathe through the mouth, he would change to the nose and when that became difficult, he switched back to breathing through his mouth. There is some evidence, from the witness's observation, that the deceased was conscious. The emergency room doctor testified that it would have been "most unlikely" that Mr. Mackey experienced any conscious pain and suffering. The doctor's statement does not rule out the possibility that the decedent actually suffered conscious pain. Therefore, viewing the evidence in the light most favorable to the appellee, we cannot say that there was no substantial evidence supporting this instruction and that it should not have been presented to the jury. This is one of those issues which may not develop exactly the same at a second trial. Although the evidence in the matter was "very meager," we think it rose to the level of that found in the case of Ashcraft v. Jerome Hardwood Lumber Company, 173 Ark. 135, 292 S.W. 386 (1927). Our cases have dealt with the facts and circumstances of each case and relied heavily on the nature and extent of the injuries when determining whether conscious pain and suffering are recoverable. A question for the jury was established in this case.

IV. THE TRIAL COURT...