Silvey v. Missouri Pac. R. Co., 53907

• Decision Date: 08 September 1969
• Docket Number: No. 53907,No. 2,53907,2
• Citation: 445 S.W.2d 354
• Parties: John L. SILVEY, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corp., Appellant
• Court: Missouri Supreme Court

Page 354

445 S.W.2d 354

John L. SILVEY, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corp., Appellant.

No. 53907.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1969.

Rehearing Denied Oct. 13, 1969.

Murphy & Schlapprizzi, Donald L. Schlapprizzi, St. Louis, for respondent, John L. Silvey.

James A. Hesse, Charles P. Lippert, St. Louis, for appellant, Missouri Pacific Railroad Company.

HENRY I. EAGER, Special Commissioner.

Plaintiff was injured when he drove his tractor-trailer into the side of a diesel operated train at the crossing of State Highway 34 and the Missouri Pacific tracks in Wayne County. This occurred on May 29, 1963. His prayer was for $100,000; the jury returned a 9-man verdict for the defendant. On a previous trial plaintiff recovered a verdict of $30,000 and the court set it aside as against the weight of the evidence. Following the present trial the court granted plaintiff a new trial for error in giving defendant's contributory negligence Instruction No. 6; the order adopted four reasons or grounds from plaintiff's motion. Defendant duly appealed. Since defendant contends that plaintiff was guilty of contributory negligence as a matter of law, we shall state the facts in some detail. No point is made here on the pleadings; the amended petition charged negligence in several particulars but the case was submitted only upon the theory that defendant's flasher lights at the crossing 'were in an inoperative condition and did not warn plaintiff of the train's approach' and further that defendant knew or should have known of such condition and was negligent. Defendant charged plaintiff with sundry forms of contributory negligence; it also pleaded in its amended answer the violation by plaintiff of Rule 43C of General Order 33--D of the Missouri Public Service Commission, which was and is in part as follows: 'Every motor vehicle shall, upon approaching a railroad grade crossing, reduce speed to a rate that shall enable an immediate stop to be made before reaching the nearest rail of such crossing and shall proceed to cross only after due caution has been taken to ascertain that the course is clear.' Plaintiff moved to strike this part of the answer but the motion was overruled, and the rule was later read into evidence. There has been much controversy over it.

Plaintiff's automobile transport trailer was loaded with 2 Ford cars and a truck chassis; his total gross weight was approximately 32,000 pounds and the unit was 45--50 feet long. Highway 34, as plaintiff approached the railroad crossing from the east, was level and so far as our facts are concerned it was straight. It was of asphalt or blacktop, approximately 20 feet wide, with the center a little higher than the edges. The collision occurred on a clear, dry day at about 1:30 p.m. Plaintiff could not recall traveling there before, but he had been driving similar units for many years and had crossed 'thousands' of railroads. He testified that he could and did see 'flasher light heads' on the crossing when 500 feet away, and when he was traveling at approximately 50 miles an hour; on cross-examination he testified that he was aware of the railroad track for at least one thousand feet to the east. He testified positively that the flasher signals were not operating at any time, even after the collision; also that he was familiar with such signals and knew that when a train was coming the lights flash and a horn blows. A considerable battle waged here over the view that plaintiff had, or should have had, to the south (his left) as he approached the crossing. The many photographs offered and received are confusing in that they show such widely divergent views or sight distances. We shall mention some later, but we do not feel that any of them rise to the dignity of 'physical facts' (Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885). Plaintiff testified: that as he approached the track there was a hill and a 'screen of tall trees' on his left; that at 500 feet from the crossing he could see only about 80 feet down the track, and at 150 feet from the crossing the view had not improved; that it was only when he was about 80 feet from the crossing that he got a clear view to the south; that he began to slow at about 400 feet to be ready to change gears for the crossing; this reduced his speed to about 42 miles an hour; that he listened, as well as looked, for a train but heard no horn or bell; that he last looked to the south at about 150 feet, then looked to his right and back to the flasher signals; that when he was approximately 80 feet from the crossing he heard, for the first time, the horn of the engine and saw the train; at that instant he was still traveling approximately 42 miles an hour. He immediately applied all brakes and swerved to his left, apparently hoping that he could swerve off the road and down the ditch, but he hit the concrete instrument control box (approximately 10 feet east of the track and 12--15 feet south of the pavement), broke it off, lost control of his tractor, and struck the first car behind the two diesel units. His gas tanks exploded but he managed to get out of the cab; the fuel set some of the cars on fire as well as the plaintiff and the tractor was apparently a complete wreck. The train stopped with the rear of its 10 cars some 800--1200 feet beyond the crossing. That distance, as well as the speed of the train, was in dispute. Plaintiff, burned as he was, crossed the tracks and there met James Darnell, a telephone company employee, who put him in his truck and took him to a doctor in Piedmont. Darnell had driven up from the west immediately after the collision. When Darnell reached plaintiff, the latter said, apparently not in response to any question,--'If the lights had been working and they had blowed their horn sooner, I would have saw it.' Plaintiff also testified that he told the 'railroad people' before he left the scene that 'their flasher lights were out.'

Two witnesses testified for plaintiff that they had been over this same crossing eleven days previously and that the flasher signals did not operate at any time, although a train came from the south immediately after they crossed. These same two witnesses corroborated to some extent plaintiff's testimony about the obstruction of the view to the south as one comes west on 34, until he reaches a point 75--80 feet from the crossing. It was shown by answers to interrogatories that defendant had made no repairs on the flasher lights within 30 days prior to the collision. It was also shown that there were 96 feet of skidmarks from plaintiff's vehicle, starting at about the center of the road, 79 feet of which were on the pavement and 18 feet on the shoulder. It was not shown by which wheels these were made. Plaintiff's own witness, an engineer, testified that at 42 miles an hour it would have taken plaintiff 195 feet to stop, and at 50 miles, 275 feet.

Defendant first offered in evidence (over objection) the rule of the Public Service Commission already quoted. The train dispatcher of defendant testified, somewhat vaguely, that there was no malfunction indicated by his lights at the time in question and that if the flasher lights had not been operating there would have been an indication of trouble on his board. The testimony of the crew of the train was of little significance except for that of the engineer and the fireman; they testified in substance that they could see (through a 2-inch peephole in the flasher head) that the flasher lights were working, that the horn and bell were sounded from a point 1320 feet east (the whistle post), that the headlight was burning, that they had seen plaintiff and assumed that he was going to stop; that he was still 150 feet east when the diesels reached the crossing. There is some indication that the tractor went 'out of view' after they first saw it, presumably because of trees or brush. Apparently the engineer did not attempt to watch plaintiff after he was last seen 150 feet east of the crossing (although this may be immaterial). The engineer did not set the brakes until after he passed the crossing, if at all, but the impact broke some mechanism which automatically set the brakes. The speed tape of the engine, about which considerable question was raised for supposed lack of identification, showed that the train was traveling at 50--51 miles an hour.

There was much evidence from defendant which tended to indicate that the flasher lights were operating and that a malfunction would have been most improbable. That testimony is impressive but there is substantial evidence that the lights were not operating, and as a fact question that ends the matter.

We need say little more regarding the photographic exhibits. Generally the plaintiff's photographs taken from 150 feet east, 80 feet east and 40--45 feet east, show a very considerable obscuring of the view to the south by trees, until one passes the 80-foot point. The testimony does not show the height from which these photographs were taken. Defendant's photographs A, B & C were taken on June 3, 1963, by a reporter-photographer from Poplar Bluff from points 150 (A & B) and 100 (C) feet east of the crossing and supposedly about 5 feet above the surface of the road. They show a considerably greater view down the tracks to the south than do plaintiff's exhibits. It would appear that in these the camera was 'looking' over the tops of some of the trees and brush which obscure the vision in plaintiff's photos. The disparity is confusing. The contrast is again shown in defendant's exhibits J and K, which show a considerable view down the track, but again seem to 'look' over the tops of the trees on the south side of the highway which are closest to the track. The defendant's claim agent directed the taking of exhibits A-E inclusive. Each of those exhibits was made by taking 3 different exposures, at different angles, but from the same point;...