Scoville v. Missouri Pacific Railroad Company, 71-1129

• Decision Date: 12 April 1972
• Docket Number: No. 71-1129,71-1130.,71-1129
• Parties: Mary Ellen SCOVILLE, Administratrix of the Estate of Thomas W. Scoville, Jr., Deceased, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant. Robert KING, Administrator of the Estate of Angela King, Deceased, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

458 F.2d 639 (1972)

Mary Ellen SCOVILLE, Administratrix of the Estate of Thomas W. Scoville, Jr., Deceased, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

Robert KING, Administrator of the Estate of Angela King, Deceased, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

Nos. 71-1129, 71-1130.

United States Court of Appeals, Eighth Circuit.

Submitted October 20, 1971.

Decided April 12, 1972.

COPYRIGHT MATERIAL OMITTED

Boyce Love, Little Rock, Ark., W. J. Smith, Little Rock, Ark., for appellant.

Henry Woods, Little Rock, Ark., Sidney S. McMath, H. Allen Dishongh, Little Rock, Ark., for appellees.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Thomas W. Scoville, Jr., age 18, and Angela King, age 8, were killed when a Volkswagen automobile driven by Thomas, in which Angela was a passenger, was struck by the left front portion of a diesel locomotive owned and operated by the Missouri Pacific Railroad Company. The Scoville and King families instituted separate diversity actions in the United States District Court for the Eastern District of Arkansas seeking to recover damages for the wrongful deaths of their respective decedents. The cases were consolidated for trial to a jury. The railway appeals from judgments entered pursuant to verdicts of $60,000 in favor of Mary Ellen Scoville, Thomas' mother; of $12,500 in favor of Linda Scoville Smith, Thomas' sister; of $50,000 in favor of Mr. and Mrs. Robert King, the parents of Angela; of $7,500 each in favor of Robert King, Jr. and Tammy King, Angela's brother and sister; and of smaller amounts in favor of the estates of Thomas and Angela.

The accident took place at 5:00 p. m. the afternoon of May 29, 1968, at a public crossing three and one-half miles south of Little Rock, Arkansas. The crossing marks the point at which Missouri Pacific's main line intersects Vimy Ridge Road. The paved two-lane road is straight and level and runs generally north and south. The road is one which "feeds" into an interstate highway at some point north of the crossing. The defendant's four tracks, also straight and level, cross Vimy Ridge Road in generally an easterly-westerly direction. The tracks thus intersect the road at an angle of approximately ninety degrees.

The crossing is extensively used. The record discloses that it serves 1356 cars and 17 trains daily. It is guarded only by the standard cross-buck sign on the north and by a red stop sign on the south. The sign is said to be "occasionally up and occasionally down."¹

A train approaching the crossing from the east, as this one was, comes out of a curve which ends some 2400 feet east of the crossing and then proceeds in generally a straight line across Vimy Ridge Road. Motorists approaching the crossing from the south, as Thomas was, must contend with certain obstructions and other conditions which are said to impair visibility both to the east and to the west, but perhaps more so to the west. These stem principally from two sources. First, pine and oak trees, weeds, high grass, and underbrush growing close to the tracks combine to form a grove, the effect of which is to complicate normal visibility. Second, the effect of the sun upon the vision of northbound drivers emerging from the grove is said to render detection of trains more difficult than usual. If the sun is shining from the west, as it was on the afternoon of the accident, a driver first looking in that direction experiences some difficulty in retaining normal focus on looking to the east. Additionally, there is a chain link fence on the east side of Vimy Ridge Road which parallels the road for a short distance not far from the crossing. There is testimony to the effect that the sun reflects against the fence in such a manner as to make it necessary for northbound motorists to continually blink in order to maintain normal focus.

The day of the accident was bright and clear. Thomas and Angela had been swimming that afternoon at the King's motel. They left the motel for Thomas' home so that he could dress for a baseball game in which he was to participate later that same day. Shortly thereafter, the record reveals that Thomas approached the tracks from the south at an approximate speed of 30 to 35 miles per hour and came to a firm stop very close to the southernmost rail about 10 seconds prior to impact; that Angela was looking to the east; that Thomas turned his head to the east; that the train, consisting of one diesel locomotive drawing eight empty cars, approached the crossing from the east at a speed of about 55 miles per hour;² that the locomotive engineer was seated on the north side of the engine cab with a clear view to the north but with no view whatsoever to the south and to the place at which Thomas had stopped his automobile; that at a point approximately 100 feet east of the crossing the fireman, positioned to the left of the engineer, exclaimed "automobile"; that the engineer then placed the train in "emergency position"; that the engine of the train struck the Volkswagen, causing it "to go into a spin and explode"; and that the engine proceeded 1716 feet past the crossing before coming to a stop. The collision was made possible because Thomas had "fouled" the tracks in permitting the front portion of his automobile to come to rest within two and one-half feet from the nearest rail.³ There was evidence that the railroad failed to warn of the approach of its train as required by Arkansas statute.⁴

The railroad's motions for directed verdicts, made at the close of the plaintiffs' case and, again, at the close of all the evidence, were denied by the court.⁵ The case was submitted to the jury on two specifications of primary negligence: (1) failure to sound the statutory warning, and (2) maintenance of an extrahazardous crossing. The issue of Thomas' contributory negligence also was submitted to the jury. After verdict the railroad filed its timely motions for judgment notwithstanding the verdicts and for a new trial. Both motions were denied.⁶ The railroad urges here (1) that the trial court erred in submitting the case to the jury; (2) that Thomas' stop so close to the tracks must, as a matter of law, be deemed the proximate cause of the accident; and (3) that the several verdicts are excessive. We turn to these issues, having in mind that in such a case as this

"We are required to determine whether there is any substantial evidence upon which the verdicts for the plaintiffs could properly be based. For the decision of that question, we must assume as established all the facts that the evidence supporting the plaintiffs\' claims reasonably tends to prove and that there should be drawn in the plaintiffs\' favor all the inferences fairly deducible from such facts. * * * We must also give effect to the rule that issues that depend upon the credibility of witnesses, and the effect or weight of evidence are to be decided by the jury." Elzig v. Gudwangen, 91 F.2d 434, 439 (CA8 1937).

I

We initially consider the contention that the evidence was insufficient to take the questions of the railroad's negligence to the jury.

1. Failure to sound the statutory warning. The railroad argues that the trial court erred in refusing to instruct the jury that

"When the presence of a train approaching or occupying a crossing is readily discoverable by means other than lights, signals or flag men, then the failure to have crossing lights, crossing signals or a flag man at the crossing and the failure of the train men to ring the bell or blow the whistle are not relevant factors for your consideration." (Emphasis supplied).

The theory upon which the railroad rests this claim of error is that a jury question as to the absence of the statutory signal was not presented; that this is so because the evidence establishes without room for argument that Thomas was fully cognizant of the approach of the train, with the consequence that, under appropriate Arkansas decisional law, the matter of signals does not become a legitimate jury consideration.

It is true that the Arkansas courts more than once have said that

"The purpose of requiring a railroad to give signals is to warn the traveler of the approach of a train . . . and when the traveler otherwise has knowledge of the approach of the train, warning signals cease to be factors. Under those circumstances the failure to give the signals cannot be a proximate cause of the collision." Koch v. Missouri Pacific Railroad Company, Ark., 455 S.W.2d 858, 860 (1970).

But, as the dissent of Justice Fogleman in Koch points out, this rule has found application only in those cases where it can be said with assurance either (1) that the crossing was blocked by the train or, (2) that the injured party otherwise knew or must have known of the train's approach within sufficient time to act. 455 S.W.2d, at 860-861, and cases there cited. This, it seems to us, is but another manner of saying that it is only where the evidence affirmatively and clearly reveals that the ringing of the bell or the blowing of the whistle would not have produced a different result that the issue of signals is not a matter for the jury.⁷

The railroad insists that a conclusion that Thomas knew or must have known of the approach of the train is required from eye-witness testimony that his head was turned toward the direction from which the train was coming shortly before impact. We disagree. There is evidence from which the jury was entitled to infer that the approach to this crossing was made deceptive by reason of the foliage and underbrush growing closely thereto and, as well, because of the effect of the sun upon the vision of approaching motorists. The record also contains uncontradicted testimony to the effect that, for northbound motorists who approach the tracks in a Volkswagen, it is necessary, because of the underbrush and other conditions obscuring visibility, to stop at a point somewhat closer...