Reames v. St. Louis-San Francisco Ry. Co., LOUIS-SAN
| Decision Date | 20 June 1962 |
| Docket Number | 8041,Nos. 8040,LOUIS-SAN,s. 8040 |
| Citation | 359 S.W.2d 230 |
| Parties | Arlene REAMES, Plaintiff-Appellant, v. ST.FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Respondent. Ariene REAMES, Plaintiff-Respondent, v. ST.FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Jones & Jones, Langdon R. Jones, Robert H. Jones, Kennett, for Reames.
Ward & Reeves, Caruthersville, for St. Louis-San Francisco R. Co.
Arlene Reames, plaintiff-appellant, brought this action in the Circuit Court of Dunklin County, Missouri, against defendant, St. Louis-San Francisco Railway Company, a corporation, for damages in the sum of $25,000.00 for the wrongful death of her husband, Homer Reames, killed January 4, 1960, on Highway EE, being the north by-pass, in the city of Kennett, when deceased's automobile crashed into the side of defendant's diesel engine momentarily stopped on the railroad crossing.
The cause was tried by jury and a verdict and judgment rendered for plaintiff for $12,500. Both parties appealed. Since the appeals are by opposing parties from the same judgment, they are consolidated in this court for opinion.
Plaintiff's appeal is case No. 8040. The issue presented is limited to damages only.
Defendant's appeal is case No. 8041, and involves the sole question of whether or not plaintiff made a submissible humanitarian negligence case against defendant based upon the failure of defendant to sound a warning signal as deceased Reames' automobile approached defendant's engine.
Plaintiff's petition is in conventional form, both primary and humanitarian negligence are charged.
The answer admitted the formal allegations of the petition but denied all other allegations of negligence, both primary and humanitarian.
In the trial plaintiff abandoned acts of primary negligence and submitted her case on humanitarian negligence.
The jury found the issues for plaintiff and assessed her damages at $12,500. On this verdict the court entered judgment.
Defendant's motions for directed verdict at the close of plaintiff's case and at the close of the whole case and its after-trial motion for judgment in accordance with its motion for directed verdict were overruled.
Motions for new trial were filed by both plaintiff and defendant and both parties appealed.
The evidence necessary to determine the issues involved in plaintiff's appeal, case No. 8040, is as follows: By stipulation it is agreed that at the time of the death of Homer Reames he was in good health, 58 years of age at his next birthday and earning $6,540.00 per year before taxes. It was admitted that according to the American Experience Table of Mortality the prospective life of a man 58 years old is 15.39 years; that deceased, Homer Reames, was a man of good habits.
Plaintiff testified she was the age of 55 years and at the time of trial was a saleswoman; that the deceased paid the expenses of the home; that at the time of his death the only members of the household were plaintiff and deceased; that he helped her on Saturday afternoons and Sundays, took care of the car, mowed the lawn, cleaned the stove and refrigerator, paid all the bills, did grocery shopping and drove the family automobile. She stated her health was good. By stipulation it was admitted that according to the American Experience Table of Mortality, the life expectancy of a woman 55 years of age is 17.40 years; that at the time of the death of deceased he was manager of the Arkansas-Missouri Power Company at Kennett.
The case in appeal No. 8041 was submitted solely on humanitarian negligence for alleged failure of engineer Ryan to sound a warning signal as the Reames automobile approached the diesel engine standing across the highway. The issue presented is whether a jury case was made on this theory. We will state the facts shown by plaintiff's evidence from the viewpoint most favorable to her.
Highway EE, being the north by-pass in Kennett, runs generally north and south through the western edge thereof and circles northeasterly around the north side. Defendant's railroad runs generally east and west and crosses this highway. There are two industries served by the railroad in this part of the city, one about 600 feet east of the highway and the other immediately west of the highway and just south of the tracks. On the night of January 4, 1960, the local freight train switcher of defendant had done switching at the industry some 600 feet east of the by-pass after which the diesel engine, with two box cars attached, proceeded west for the purpose of dropping a car at the industry immediately west of the by-pass. The switch stand for this industry was just west of the by-pass. The engine pulled on and across the by-pass at a slow rate of speed with the front end of the engine some 7 to 20 feet beyond the west edge of the pavement so the trainmen could ascertain if there was room to spot the car on the spur serving the industry as there were other cars already on the spur track. The rear of the engine was near the east edge of the pavement. The engine is approximately 55 feet long and 14 feet high.
At the time the engine approached and stopped on the highway, the engineer was on the fireman's side on the south side of the engine and the fireman was the acting engineer on the north side. The two brakemen rode the front of the engine. When the train stopped Bob Clippard, the head brakeman, got off the engine and stood on the crossing on the north side with his lantern to flag traffic coming from the north. He testified that the other fireman, Smiley, got off and walked ahead of the engine; that no one was flagging the south side of the engine. There was no traffic approaching the crossing on Highway EE from either direction.
The evidence is that as the train approached the crossing whistle signals were given but none were given after the engine stopped. The whistle signal could be sounded by either the fireman or engineer without moving from their seats.
The diesel engine had been stationary on the by-pass crossing from 12 to 25 seconds when deceased crashed into the south side of it near the steps on the rear thereof, about 7:32 P.M.
Clippard testified that he did not see the plaintiff's automobile but heard the impact when it struck the engine; that when he went around the front of the engine the headlights on the Reames car were not burning. He stated the headlight on the engine was not shining on the highway during the 15 to 25 seconds that the engine was stationary on the crossing.
The width of the by-pass highway was 19.6 feet and practically level at the crossing. The highway is straight for a distance of 375 feet south of the crossing where a slight curve begins, but the sight distance along the highway to the south from the crossing is 1496.50 feet. There is a highway railroad crossing sign south on the east side of the by-pass 549 feet south of the crossing. The crossing was also protected by cross-arms. The evidence is that there was a white house on the west side of the by-pass, south of the crossing, 788.6 feet and a red brick house south of the crossing on the west side of the highway 1004.4 feet.
The diesel engine was painted a dark color with large yellow stripes on its sides which illuminates when lights shine on it. During the 12 to 25 seconds the engine was on the crossing, prior to the collision, the headlight was burning, and the number lights on the south side and near each end of the engine were burning, as well as a light near the cab and these lights can be seen for a distance of 200 feet.
The diesel engine on the crossing was plainly visible to deceased when he was at the first white house on the west side of the by-pass and south of the crossing, a distance of 788.6 feet. On the night in question it was cloudy and cold but visibility was good.
No member of the train crew saw the Reames automobile until almost the instant of impact at which time engineer, Ryan, heard the 'squeal on the pavement'. He then turned his head and saw the Reames car. The deceased had attended a stag dinner and was returning home on the by-pass. His hearing and eyesight were good, the headlights on his automobile were burning before the collision. His car skidded on the east lane of blacktop by-pass for 66 feet before it struck the diesel. He was traveling at the time he crashed into the engine 65 miles per hour. He was well acquainted with the by-pass and the railroad crossing. Under the city ordinance, in evidence, the speed of a motor vehicle on this by-pass is limited to 40 miles per hour.
By agreement exhibits 1 through 14 were offered by defendant and exhibit (A) was offered by plaintiff. Exhibits 1, 2, 3, 4, 6 through 14 are photographs. Exhibit 5 is a rough plat of the scene of the accident. Plaintiff's exhibit (A) is a large plat of the scene of the accident and Highway EE prepared by a civil engineer.
Plaintiff principally relied upon members of the train crew as her witnesses. Highway Patrolman, Frank Sheible, was called by defendant. He arrived at the scene of accident a few minutes after the collision.
This appeal is limited to the sole question of the alleged error of the trial court in failing to direct a verdict in favor of defendant and in failing to sustain defendant's after-trial motion for a judgment notwithstanding the verdict.
Witnesses Bill Meredith and his wife testified that they are residents of Kennett; that on the night Homer Reames was killed they were driving south in a pickup truck on Highway EE and crossed the railroad tracks as defendant's train was approaching the crossing. Mr. Meredith was driving and his wife was sitting in the front seat on the right side. Meredith testified that as they crossed the tracks the...
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