Myers v. Bi-State Development Agency

• Decision Date: 15 June 1978
• Docket Number: BI-STATE,No. 60358,60358
• Parties: Carl Edward MYERS and Movelda Myers, Plaintiffs-Respondents, v.DEVELOPMENT AGENCY, Defendant-Appellant, and Norfolk and Western Railway Company, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 638

567 S.W.2d 638

Carl Edward MYERS and Movelda Myers, Plaintiffs-Respondents, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant, and Norfolk and Western Railway Company, Defendant-Respondent.

No. 60358.

Supreme Court of Missouri,En Banc.

June 15, 1978.

Rehearing Denied July 24, 1978.

James E. Hullverson, Stephen Ringkamp, St. Louis, Mo., for plaintiffs-respondents.

John D. Schneider, St. Louis, Mo., for defendant-appellant.

Albert E. Schoenbeck, Stephen M. Schoenbeck, St. Louis, Mo., for defendant-respondent.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal on transfer by order of the Supreme Court after opinion by the Court of Appeals (Rule 83.03), from verdicts and judgments in favor of Carl Edward and Movelda Myers against Bi-State Development Agency on his claim for damages for personal injuries and her claim for damages for loss of consortium against Bi-State and Norfolk and Western Railway Company. The questions (Rule 83.09) are whether the court erred in giving plaintiffs' verdict-directing instructions against Bi-State, in ruling on plaintiffs' cross-examination of Bi-State's doctor, in exclusion of evidence relating to brakes proffered by Bi-State, in allowing plaintiffs' evidence and argument relative to use of sick leave compensation accumulated by Carl Myers, and in admission of a St. Louis ordinance relative sounding of train whistles on behalf of NW. Affirmed.

Plaintiffs' action arose from a collision December 11, 1973, at the intersection of Goodfellow Avenue and NW tracks in the City of St. Louis between a southbound Bi-State bus and an eastbound NW train. The intersection is guarded by railroad crossing signals, one located in each of the northwest and southeast quadrants. Each signal consists of circle cross-buck signs mounted atop a pole standard. One arm of each cross-buck says "RAILROAD," the other "CROSSING." Below the cross-buck on each standard are four red flasher lights, two showing to the north and two to the south. The lights flash alternately when electrically activated by a train on the track within one-fourth mile of the crossing. Below the flasher lights on the face of each standard is a square sign which says "STOP ON RED SIGNAL." A southbound motorist on Goodfellow approaching the crossing would be faced with the crossing signal and two of its flasher lights in the northwest quadrant to his right, and with two of the flasher lights on the crossing signal in the southeast quadrant on his left.

Prior to the collision, Bi-State's bus had been traveling south on Goodfellow and had stopped one block north of the railroad crossing. As the driver left that stop, he saw the red lights flashing on the railroad crossing signals. He began to apply his brakes when between 60 and 100 feet from the crossing. He saw the train when he was between 30 and 50 feet from the crossing and continued to slow his bus. After nearly stopping at about 10 feet from the crossing, the driver accelerated the bus to beat the train across the intersection. He failed in his attempt and the bus was struck in its right rear quarter by the train. The driver said he accelerated because his brakes did not seem to be working right and he thought he could not stop the bus in time. The brakes had been working properly prior to that time, and tests performed after the collision revealed no mechanical malfunction. As the train approached the Goodfellow crossing, it was being slowed by its regular brakes. When the bus accelerated, the engineer, upon warning from his student engineer and brakeman, set the emergency brakes which further slowed but did not stop the train. Testimony conflicted on warnings sounded by the train.

Carl Myers was thrown from his seat in the bus by the collision and received injuries to his ribs and lungs. He was off work for several months and used some 500 hours of accumulated sick leave. While at home he was cared for by his wife Movelda. The medical evidence conflicted on permanent injuries, particularly permanent partial lung dysfunction.

Plaintiffs' claims against Bi-State were submitted by Instructions 3 and 4, identical except for names:

"Your verdict must be for plaintiff Carl Myers against defendant Bi-State Development Agency if you believe:

"First,

defendant Bi-State Development Agency either: failed to keep a careful lookout, or violated the railroad crossing signals, and

"Second,

defendant Bi-State Development Agency's conduct, in any one or more of the respects submitted in paragraph First, was negligent, and

"Third,

such negligence directly caused or directly contributed to cause damage to plaintiff Carl Myers.

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

"M.A.I. 17.02 modified; 11.02. Offered by Plaintiffs."

The jury's verdicts were against plaintiffs and in favor of NW; and for plaintiffs and against Bi-State for $62,500 for Carl Myers and $5,000 for Movelda Myers. Judgments were entered accordingly.

Appellant charges the court erred (I) in giving plaintiffs' verdict-directing instructions against Bi-State "because this Not-in-MAI instruction improperly creates a duty contrary to law in an argumentative and inflammatory form inferring that failure to heed a (the) warning was a punishable and inherently illegal act giving a privately erected warning device the appearance of the force of law." Appellant argues that the instructions submitted an issue which does not exist under the law because such signals do not carry the force of law, were not established by the State or its political subdivision, and that there is no statute or ordinance which makes it a crime or offense to pass through such a privately erected warning device. Appellant suggests that plaintiffs' claims would have been properly submitted on failure to stop after danger of collision was apparent in form MAI 17.04.

The difficulty in this contention is that plaintiffs' submissions against Bi-State conform to Missouri's scheme for the instruction of juries under Rule 70.

The evidence may have warranted other submissions; however, plaintiffs were entitled to submit their claims as they saw fit within limitations imposed by the evidence. Instructions 3 and 4, supported by evidence, are MAI 17.02, mandated for submission of multiple negligent acts, and they include as one of two negligent acts "violated the railroad crossing signals" as authorized by and in the language of MAI 17.01, for submission of "violated the traffic signal," together with the requisite definition of "negligence" of MAI 11.02. Nothing in MAI limits use of MAI 17.01 to situations involving "statutory" traffic controls. A "traffic signal" is an electrically operated signal such as a system of colored lights for warning and controlling traffic. Brittain v. Clark, 462 S.W.2d 153, 156 (Mo.App.1970). See also Silvey v. Missouri Pacific Railroad Co., 445 S.W.2d 354 (Mo.1969), for approval of submission of plaintiff's contributory negligence in a truck and train crossing collision by use of "failed to heed the electric flasher warning signals." Note that among meanings ascribed to "violate," Webster's Third New International Dictionary defines the term as "to fail to keep: BREAK, DISREGARD"; and that one can "violate the standard of ordinary care," Miller v. F. W. Woolworth Co., 328 S.W.2d 684, 689 (Mo. banc 1959).

Instructions 3 and 4 did not equate "violated the railroad crossing signals" with "violated the law." They instructed the jury that if it believed that Bi-State "violated the railroad crossing signals," i. e., that Bi-State failed to heed or disregarded such signals, and that such was negligence as defined, and, if so, that such negligence caused damage to plaintiffs, then the jury was to find for plaintiffs.

Nor did Instructions 3 and 4 submit negligence per se. See MAI 17.17 and 17.18 for submissions of per se negligence; and note again that paragraph Second of Instructions 3 and 4 required a finding that "violated the railroad crossing signals" was negligence before the jury could return verdicts for plaintiffs.

Appellant charges the court erred (II) in failing to sustain objection to a cross-examination question put to Bi-State's doctor relative a pulmonary function test of Carl Myers "because that question assumed a fact not in evidence and thereby denied (Bi-State) a fair trial on the issue of whether the plaintiff had a permanent loss of lung function."

Dr. A. J. Steiner had treated Carl Myers and his family for a number of years. In his opinion, Mr. Myers had lost 35% of the use of his right lung as a result of injuries received in the Bi-State and NW collision. Part of the basis for his conclusion was two breathing tests which he performed, one in March 1974, which showed decreased ability to take air, and an exercise ability test in September 1974. Bi-State cross-examined Dr. Steiner with respect to performance of a "pulmonary function test" referred to later by Bi-State's doctor, Belmont R. Thiele, M.D. Dr. Thiele stated that the best way to measure loss of lung function was to use a pulmonary lung machine producing a graph and chart of lung capacity. In Dr. Thiele's opinion, Carl Myers had suffered no loss of use of his right lung. Dr. Thiele was cross-examined by plaintiffs; and from this background, appellant, in support of his contention, asserts "the following is the pertinent record":

"Q (By Mr. Hullverson) You knew the final test, if there is a pulmonary disorder, is to take the pulmonary tests? A Not in a case like this. Q Were you looking for lung damage, you could have known what the lung damage was in his case, you could have sent him down the street? A I could have. Q Do you know they were made by Dr. Steiner? MR. SCHNEIDER: That is not true. MR. HULLVERSON: That is what Dr. Steiner testified. MR. SCHNEIDER: That is not what he testified to. THE COURT:...