St. Louis Southwestern Ry. Co. v. Pennington

• Decision Date: 23 May 1977
• Docket Number: No. 76-155,76-155
• Citation: 261 Ark. 650,553 S.W.2d 436
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY CO., Appellant, v. William M. PENNINGTON, Administrator of the Estate of Brenda Taylor, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 436

553 S.W.2d 436

261 Ark. 650

ST. LOUIS SOUTHWESTERN RAILWAY CO., Appellant, v. William M. PENNINGTON, Administrator of the Estate of Brenda Taylor, Deceased, Appellee.

No. 76-155.

Supreme Court of Arkansas, In Banc.

May 23, 1977.

Coleman, Gantt, Ramsay & Cox, Pine Bluff, for appellant.

Gaughan, Barnes, Roberts, Harrell & Laney, Camden, for appellee.

FOGLEMAN, Justice.

This appeal was taken from a judgment for a total of $50,000 in a wrongful death action. It was rendered on a complaint by the personal representative of Brenda Taylor, who was killed in a railroad crossing collision between appellant's local freight train and a pickup truck occupied by Mrs. Taylor and her husband, Robert Lee Taylor. The collision occurred at approximately 8:45 p. m. on September 29, 1973, in Thornton at the intersection of Locust Street and appellant's railroad tracks. Both Mr. and Mrs. Taylor were killed instantly and separate wrongful death actions were instituted on behalf of their respective estates and next of kin.

When the Taylors were killed they were returning to their own residence after having attended a birthday party at the home of her sister, who lived two blocks from the fatal crossing. They were traveling westerly ¹ on Locust Street which crossed appellant's main line and spur siding tracks at a right angle. The tracks ran parallel, generally in a north-south direction. The center of the main line track was 14.8 feet west of the center of the spur siding track. The elevation of the main track was approximately one-half foot higher than the spur track.

Appellant asserts the following points for reversal:

I

THE TRIAL COURT ERRED IN SUBMITTING AN INSTRUCTION REGARDING SPEED OF THE TRAIN TO THE JURY.

II

THE TRIAL COURT ERRED IN SUBMITTING AMI 1802 (LOOKOUT) TO THE JURY.

III

THE TRIAL COURT ERRED IN REFUSING TO GIVE APPELLANT'S OFFERED INSTRUCTION 14.

IV

THE TRIAL COURT ERRED IN OVERRULING DEFENDANTS' MOTIONS FOR DIRECTED VERDICT.

V

THE TRIAL COURT ABUSED ITS DISCRETION BY UNCONSOLIDATING THE CASES FOR TRIAL.

VI

THE VERDICT OF THE JURY WAS EXCESSIVE AND THE COURT ERRED IN SUBMITTING AN INSTRUCTION ALLOWING THE JURY TO FIND DAMAGES FOR MENTAL ANGUISH.

I

Appellant objected to the giving of the following jury instruction:

It is the duty of a railroad to operate its train at a speed no greater than is reasonable and prudent under all circumstances.

A failure to meet this standard of conduct is negligence.

Appellant's argument that the giving of this instruction was error is two-pronged, i. e., there was no evidence on which to base a finding that there was negligence in operating the train at its speed of 40 to 45 miles per hour; the speed of the train could not have been the proximate cause of the injury. We find no error.

Basically, appellant's argument that there was no negligence in the speed of the train is that it is well known that the demands of modern transportation require high-speed operation which makes control difficult and that railroad crossings are, in themselves, danger signals; furthermore, the action of the engineer in lowering the speed of the train to 45 miles per hour was reasonable and prudent.

We recognize that it is a rare case when the speed of a train is an issue for the jury in a crossing collision case. See, Comment, AMI 1803, AMI, Civil, 2d Ed. But there are such cases, usually when the crossing is in a town, and there are obstructions to a motorist's or pedestrian's view of the tracks in the direction of the train's approach, or of the train crew's view of those approaching the crossing. See Davis v. Scott, 151 Ark. 34, 235 S.W. 407; Zaloudek v. Missouri Pac. R. Co., 193 Ark. 344, 99 S.W.2d 567.

This is one of those rare cases. The collision occurred in Thornton, population about 750. There are two streets crossing appellant's double-track line through Thornton. At the time of the collision the train, consisting of only the engine and a caboose, was proceeding south returning to Camden from Fordyce after having completed switching operations along the line between Camden and Fordyce. It was being operated by fireman Hagan, who was then in a training program to qualify as an engineer. Engineer Hall and brakeman Sparks were also in the cab of the engine, which was actually moving backward. The train had travelled the six miles from Fordyce to the scene of the collision in ten minutes. The spur track commenced about one-half mile north of Locust Street. A train of 122 empty cars, with engine and caboose, had been spotted on the spur track in Thornton a short time before the arrival of the remnant of this local freight train, but the crew was aware of its presence through radio communication. The train on the spur track was split into three parts in order to clear the crossings. The car spotted nearest the crossing was a flatcar located 93 feet 10 inches south of Locust Street. The first car north of the crossing was a boxcar 119 feet away. There were nine boxcars, each 54 feet 4 inches long and 15 feet 3 inches high between Locust and Highway 167. Part of the cars of this train were north of Highway 167. As the train approached the Locust Street crossing, it first crossed Highway 167 only one block, but 719 feet, from Locust. Fireman Hagan had reduced the speed of the train to 45 miles per hour (or 66 feet per second) as he approached Thornton, because of the presence of the train parked on the spur track. Hagan, who was in the engineer's seat, was unable to see the approaching Taylor truck until the engine was approximately 146 feet from the Locust Street crossing. It would have been impossible for him to have stopped the train in that distance. The fireman applied the emergency brakes when he first saw the Taylor truck moving very slowly on the passing track. He was then approximately 120 feet north of the Locust Street crossing, but the train did not come to a stop until it was at least 750 feet north of the crossing.

The daily traffic average at the Highway 167 crossing was between 1,100 and 1,200 vehicles per day and at the Locust Street crossing, it was 150 to 200. An average of 22 trains per day pass through Thornton on appellant's tracks. The highway crossing is protected by an automatic gate which blocks the crossing when a train is passing through it and by flashing electric signal lights and bells. The Locust Street crossing is unprotected except for the conventional railroad crossing signs and stop signs. As a result of the spotting of the empty freight cars, the protective devices on Highway 167 had been in operation for over an hour before the collision and appellant's dispatcher had been advised of this condition and a signal maintainer had been sent to clear that crossing. He cleared the crossing just seconds prior to the collision. So for at least an hour the Locust Street crossing was the only crossing open in Thornton.

The testimony was conflicting as to a vehicle driver's visibility of the main track to the north. There was evidence that his view was obstructed until the front wheels of the vehicle were on the main track. Other evidence indicated that he could have seen a train to the north on the main track as soon as his vehicle had passed over the spur track. There was testimony indicating that the rear of the engine, which was moving backwards, collided with the right front of the pickup truck. Obstruction of the train crew's view of persons approaching a railroad crossing in the town or city and of the view of the approaching train by those approaching the crossing by the spotting of cars on a sidetrack was a factor to be considered along with the speed of the train in determining whether there was negligence in the operation of the train. Zaloudek v. Missouri Pac. R. Co., supra, 193 Ark. 344, 99 S.W.2d 567.

The moment the signal maintainer cleared the highway crossing, he saw this engine and caboose approaching from the north and gave it a "highball" or "go ahead" signal right after it passed him. It is not clear whether this witness saw the headlights of the automobile approaching the Locust Street crossing from the east at the time he gave the signal or immediately thereafter. The headlights of the car were visible to him under the passing train and under the railroad cars spotted on the spur track. The "highball" signal meant that there was no danger to the passing train from the dead freight on the spur and that the train could proceed at its normal, regular speed.

The speed regulator or speedometer on the engine was broken. The speeds were estimated by the train crew, although the fireman said he had checked the speed by his watch and the mile posts. The fireman's reason for decreasing the speed was to allow him to blow the horn longer in approaching the crossings. A witness who lived near the crossing saw the collision. He could see the headlights of the Taylor pickup truck and could tell that it stopped at the intersection of Locust and South First Streets at a point about 200 feet east of the main track. He said that he could hear the train approaching the highway crossing at that time. The pickup truck, according to him, proceeded toward the crossing at approximately 20 miles per hour but slowed down about one-half way to the spur track, and virtually stopped at that track and then barely moved across this track onto the main track. He saw the brake lights of the truck just as it reached the main track and then it was struck by the train almost immediately. He said that the train was only 50 feet from the crossing when its brakes were applied. The Taylor truck was pushed or "swept" into the end of the flatcar south of the crossing. Mr. Taylor's body was pinned under the truck which came to rest between the spur track and the main line, but pinned against the flat car. Mrs. Taylor's body was found some 20 feet further south.

While we have viewed the evidence in the light most favorable to appellee, as we must in...