Roy v. MO Pacific Railroad Co.

• Decision Date: 30 January 2001
• Citation: Roy v. MO Pacific Railroad Co., 43 S.W.3d 351 (Mo. App. 2001)
• Parties: (Mo.App. W.D. 2001) . George N. and Shirley Roy, Appellants v. Missouri Pacific Railroad Co., Union Pacific Railroad Company, and Stephen Wheeler, Respondents. WD57597 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

43 S.W.3d 351 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

George N. and Shirley Roy, Appellants v. Missouri Pacific Railroad Co., Union Pacific Railroad Company, and Stephen Wheeler, Respondents.

WD57597

Missouri Court of Appeals Western District

Handdown Date: 01/30/2001

Appeal From: Circuit Court of Johnson County, Hon. Mary Ellen Trimiar Young

Counsel for Appellant: Andrew J. Gelbach

Counsel for Respondent: Michael B. Buser

Opinion Summary: George Roy was struck by a train while driving his vehicle across a grade crossing. Roy sued Missouri Pacific Railroad, Union Pacific Railroad and the train engineer, Stephen Wheeler. A jury rendered a verdict in favor of the defendants, finding Roy 100% at fault.

AFFIRMED.

Court holds: Following a review of the entire record, including determining if the trial court abused its discretion in admitting certain evidence and allowing the submission of a particular jury instruction, the Court affirms.

Opinion Author: Thomas H. Newton, Judge

Opinion Vote: Holliger and Lowenstein, JJ., concur.

Opinion:

Factual and Procedural Background

On June 26, 1993, George Roy was driving his 1986 Ford pickup truck through a railroad grade crossing when a Union Pacific Railroad train struck his truck. Stephen Wheeler, the train engineer, was operating the train at the time of the accident. The train consisted of three locomotives and 113 empty coal cars. Matt Carson, the train conductor, was also on the train. Union Pacific owned the railroad tracks, Missouri Pacific Railroad, and a fifty-foot right of way on both sides of the track.

At this particular crossing, the railroad tracks run east and west, while the gravel road runs north and south. As a motorist approaches the crossing, a yellow advanced warning sign is located 300 feet before the crossing. A stop sign and cross bucks are located approximately eighteen feet in front of the tracks. The speed limit on this county road was fifty-five miles per hour. The maximum allowable train speed, according to Union Pacific's rules, was fifty miles per hour, and as per the Federal Railroad Administration, the maximum was sixty miles per hour.

Mr. Roy testified that he stopped at the stop sign, looked both ways and proceeded to the crossing. Just then, he saw the train and applied his brakes, while allegedly traveling approximately four miles per hour. Consequently, he testified that he slid ten to fourteen feet. His truck stopped on the first rail and the train collided with his truck, knocking it sideways and off of the gravel roadway.

A whistle post placed approximately 1,844 feet from the subject grade crossing tells the engineer when to start sounding the horn. The horn notifies pedestrians and drivers that the train is approaching the crossing. Mr. Roy claims he did not hear the train's whistle blowing when he stopped at the stop sign. Mr. Wheeler testified that he did not begin to blow the horn at the whistle post, but began sounding the horn approximately two to four seconds before the collision when he noticed Mr. Roy's truck near the tracks.

Trooper Dale Stewart responded to the accident approximately twenty minutes after the collision, but Mr. Roy was taken by ambulance from the scene prior to Trooper Stewart's arrival. Trooper Stewart filed a report and testified at trial. In his report, he recorded twenty-eight feet of slide marks at the scene, which started about ten feet before the stop sign and continued past the stop sign up to the first rail of the railroad track. He testified to this at trial. He admitted that he could only speculate that the slide marks came from Mr. Roy's truck because he did not measure the skid marks against Mr. Roy's tires, and he saw no slide deviation marks when the train struck Mr. Roy's truck knocking it from the road. On a diagram admitted into evidence, it showed the twenty-eight feet of slide marks with a "#1" on top of them. In the report, the trooper designated vehicle #1 as Mr. Roy's truck. Mr. Roy objected to this diagram and to Trooper Stewart's testimony regarding the connection between the slide marks and Mr. Roy' truck.

The respondents also called expert witness Mr. Jay Pfeifer, an accident reconstructionist, to testify regarding several measurement and technical engineering analyses conducted with regard to the accident. Mr. Roy objected to several points of his testimony.

Mr. Roy suffered injuries to his right and left forearm, multiple left rib fractures, left pulmonary contusion, collapsed lungs, nasal fracture, chest injuries, multiple contusions and abrasions. He incurred medical expenses exceeding $51,000 and lost income of approximately $20,000. After a five-day trial, a jury returned a verdict in favor of the respondents finding Mr. Roy 100 percent at fault. He timely filed his motion for judgment notwithstanding the verdict or in the Alternative for a New Trial. The trial court denied the motion. This appeal followed.

Mr. Roy raises seven points on appeal. First, he alleges that the trial court erred by allowing Trooper Stewart to testify that Mr. Roy's truck left twenty-eight feet of slide marks because he failed to lay the proper foundation or offer competent evidence to show that Mr. Roy's truck left that specific twenty-eight feet of slide marks for the reason that the trooper admitted his conclusion was based on speculation and conjecture. Then upon sustaining Mr. Roy's objection to this testimony, the court erred by denying his motion for new trial. Furthermore, the evidence showed that there were no side deviation marks from the straight slide marks at the point where the train struck the truck and knocked it off the roadway, and therefore, the twenty-eight feet of slide marks could not have come from Mr. Roy's truck. Moreover, Mr. Roy claims that Trooper Stewart was not a qualified expert to testify to such a matter, prejudicing Mr. Roy as indicated by the jury's verdict.

Second, Mr. Roy claims that it was in error for the trial court to allow a not-to-scale diagram of the twenty-eight feet of slide marks with the reference to vehicle "#1" contained in Trooper Stewart's report into evidence and allowing the jury to have the exhibit during deliberation because it was highly prejudicial and misled the jury. His third point addresses an alleged error in the submission of a jury instruction. He contends that there was not competent or substantial evidence to submit Instruction No. 9, it misstated the law, and constituted a roving commission. Instruction No. 9 requested the jury to assess fault to Mr. Roy if it found that he failed to stop at the stop sign, failed to keep a careful lookout, should have known that there was a reasonable likelihood of a collision in time to have avoided it but that he failed to do so, or that the Mr. Wheeler sounded the horn sufficiently in advance and Mr. Roy failed to heed the warning.

Points four, five, and six all allege error in allowing the railroad's expert witness, Mr. Jay Pfeifer, to testify to certain subjects Mr. Roy claims were based on speculation, conjecture, and without proper foundation. Mr. Roy's claims of error address the following subjects of testimony from Mr. Pfeifer: (1) testimony regarding Mr. Roy's "emergency perception reaction;" (2) testimony that a vehicle traveling four miles per hour on this gravel road and applying his brakes would slide less than one foot; and (3) testimony that a motorist could get across this particular crossing in 4.15 seconds.

Mr. Roy's final point on appeal involves Exhibit 215, which was the Manual on Uniform Traffic Control Devices (MUTCD) concerning the use of stop signs at railroad grade crossings and under what circumstances the placement of stop signs at grade crossings are appropriate. Mr. Roy contends that the trial court erred by refusing to admit exhibit 215 into evidence because it was relevant to test Mr. Pfeifer's qualifications, particularly when the railroad was allowed to use the information when cross examining Mr. Roy's expert witness, Mr. John Glennon.

Legal Analysis

I. Testimony of Lay Witness

We will address points one and two together since the testimony complained of is derived from Trooper Stewart's police report, which contained the diagram about which the trooper testified. Mr. Roy argues that the trial court erred in allowing Trooper Stewart to testify, over his objections, that Mr. Roy's truck skid twenty-eight feet beginning ten feet behind the stop sign and continuing up to the railroad tracks. The trooper's testimony was based on a diagram he constructed upon arriving at the scene of the accident. Furthermore, Mr. Roy contends that the trooper's testimony was based on speculation without competent evidence or any foundation. The scope and extent of cross-examination are within the discretion of the trial court.¹ We will not disturb the trial court's decision unless abuse of that discretion can be clearly demonstrated.²

During direct examination Trooper Stewart testified that there was a set of skid marks that measured twenty-eight feet in length that began approximately ten feet before the stop sign and ended at the first railroad track. He also testified that it would be speculation on his part to say what vehicle left the twenty-eight feet of slide marks and when the marks were made. Further, he testified that he did not measure the width of the tire slide marks against either of Mr. Roy's truck tires, nor did he measure the wheelbase of the truck tires. The slide marks were straight without any side deviations, which, the trooper testified, was exceptional in this type of collision. The side deviations would have occurred when the train struck Mr. Roy's truck pushing it sideways and down the tracks. The trooper testified that he did not see any marks indicating how Mr. Roy's truck slid upon impact.

On cross-examination, Mr. Roy complains that the...