Wilson v. Missouri-Kansas-Texas R. Co.

• Decision Date: 29 January 1980
• Docket Number: No. 11107,MISSOURI-KANSAS-TEXAS,11107
• Parties: Richard F. WILSON, Plaintiff-Appellant, v.RAILROAD COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 41

595 S.W.2d 41

Richard F. WILSON, Plaintiff-Appellant, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a corporation,

Defendant-Respondent.

No. 11107.

Missouri Court of Appeals, Southern District, Division One.

Jan. 29, 1980.

Edward J. Hershewe, The Law Offices of Robert W. Richart, Joplin, for plaintiff-appellant.

Laurence H. Flanigan, Flanigan & McCanse, Carthage, for defendant-respondent.

PREWITT, Judge.

Plaintiff received a favorable jury verdict in this personal injury action and the trial court entered a judgment in accordance with the verdict. Thereafter, pursuant to defendant's after-trial motions, the court set aside the judgment and entered a judgment in favor of defendant. The court further ordered that in the event the latter judgment be reversed, defendant's motion for new trial be sustained on the ground that the verdict was against the weight of the evidence and that plaintiff's submission instruction was erroneous.

Plaintiff was injured in Joplin, Missouri, during the early morning hours of September 19, 1970, after having consumed alcoholic beverages at several establishments in Joplin. He was wearing jeans and a short sleeve shirt, predominantly white in color. After the bars closed about 1:30 a. m., plaintiff left to go to his brother's home. He decided to take a "short cut" down or along defendant's spur track near Second and Winfield Street. At trial plaintiff testified he walked approximately 100 to 200 feet northwest of the intersection on the tracks, stumbled and fell, became sick and blacked out or went to sleep. This occurred at approximately 1:45 a. m. He did not hear or see a train before he fell asleep. Shortly after 2:25 a. m., a train crew delivered two boxcars southeast of where plaintiff fell. A locomotive pushing two cars passed over the track in the area where plaintiff fell. A conductor was at the top of the front boxcar with a lantern and two fusees (described as red flarelike lights). Plaintiff offered evidence that with these the conductor could see at least 30 to 35 feet in front. With the lantern he could have signaled the engineer within normal reaction time. The train traveled at 2 to 3 miles an hour. There was evidence that it could have been stopped in 2 to 6 feet with safety to the crew. After passing the area where plaintiff said he fell, the crew dropped off the boxcars and was returning by backing up the locomotive. They then saw plaintiff lying on the outside of the rail and stopped the engine before they reached him. His leg was severed and inside the rail.

Plaintiff submitted his case on the humanitarian doctrine. Under a humanitarian submission, the plaintiff must establish: (1) plaintiff was in a position of peril; (2) defendant had notice of the peril or if defendant had a duty of lookout, should have been aware of plaintiff's peril; (3) after defendant saw, or should have seen, plaintiff in a position of peril, defendant had the means to avert the injury without injury to himself or others; (4) defendant failed to exercise the requisite care to avert the injury; and (5) by reason thereof, the plaintiff was injured. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484 (banc 1924); Wiseman v. Missouri Pacific Railroad Company, 575 S.W.2d 742, 745 (Mo.App.1978) . Defendant contends that plaintiff failed to make a submissible case because: (A) plaintiff's testimony was contradictory and so conflicting with his deposition that it lacked probative value and cannot be considered to determine if he made a case; (B) defendant did not have a duty to maintain a lookout for plaintiff as he was a trespasser and no public use such as he was making was shown in the evidence; and (C) even if plaintiff's trial testimony had probative force, it did not establish that he was in imminent peril at a time when defendant's employees could have avoided injuring him.

To determine if the plaintiff made a submissible case and if the court erred in setting aside the judgment and entering a judgment for defendant, we view the evidence and reasonable inferences most favorable to plaintiff. Ogden v. Toth, 542 S.W.2d 17, 19 (Mo.App.1976).

Before considering if the evidence shows the necessary humanitarian elements, we should decide if plaintiff's testimony at trial can be used in determining if plaintiff made a submissible case. It appears that if his testimony has no probative value, a humanitarian case is not made. Plaintiff's testimony at trial varied considerably from his deposition. When his deposition was taken in 1974, he stated he did not intend to walk down the spur track or right of way, but to stay on the street, and that he was walking when hit by the train. At the trial he testified that he walked down the track and was lying down unconscious when struck. Defendant contends that under such holdings as Steele v. Kansas City Southern Ry. Co., 265 Mo. 97, 175 S.W. 177 (1915), and 302 Mo. 207, 257 S.W. 756 (banc 1924), that plaintiff's testimony is so contradictory and conflicting as to prevent it from having any probative value. We don't feel that Steele is controlling here. There one version was given by plaintiff and after an overnight recess, a different version without a reasonable explanation. Defendant contends that the situation here is the same as in the first Steele opinion because plaintiff incorporated his deposition testimony into the trial by saying it was true. He said his deposition testimony was true and then later appeared to have clarified his meaning by saying it was true at the time but not now, but that he wasn't lying. The jury could find that by his statement that it was true he meant that he was not lying at the time. He acknowledged that his trial testimony had changed. He claimed that his deposition version was due to a psychological reaction caused by his injury. This caused him not to want to talk about the incident and to attempt to block it out of his mind. Plaintiff said that he was so bothered by the accident and the pain that he couldn't cope with it until he was helped by a psychologist. Plaintiff and his psychologist testified that after receiving psychological help he was able to relate the true facts. The jury could have believed that due to this help he was now able to discuss the occurrence and truthfully tell how it happened. We believe it is for the jury to determine if he was telling the truth at trial. Contradictory testimony at trial, without other explanation, does not by itself make a prima facie submission, but a statement by a party prior to the trial, although admissible as impeachment, does not destroy the trial testimony as proof. Welch v. Hyatt, 578 S.W.2d 905, 913 (Mo. banc 1979). Contradictions between plaintiff's court testimony and his previous deposition are matters for the jury to assess. Welch v. Hyatt, supra, 578 S.W.2d at 913; Atkinson v. Be-Mac Transport, Inc., (No. 40533, Mo.App. Eastern District 1980). Plaintiff's trial testimony, though inconsistent with his deposition, must be considered to determine if a submissible case was made.

We next consider if the defendant's employees had a duty of lookout for persons such as plaintiff on the tracks. If the duty exists, the evidence was sufficient to show that with the position of the trainmen and the lights available to them, plaintiff could have been seen, if he was on or near the track, when the train was 30 to 35 feet away. They did not see him until after the injury. A railroad track is private property and the trainmen have no duty of lookout except at public crossings or at other places where there is actual or constructive knowledge of the habitual use of its tracks by the public. Coonce v. Missouri Pacific Railroad Co., 358 S.W.2d 852, 854 (Mo.1962). A railroad's knowledge of public user is not generally established by direct evidence but inferred from other facts such as long acquiescence in the extensive use of its tracks as a footway. Id. There was evidence that this occurred in a populated residential area of Joplin, Missouri. There were no signs prohibiting the use of the tracks and right of way and no fences. The evidence showed a path along and up the tracks and that for many years it was frequently used as a shortcut both day and night.

Both parties cite numerous cases involving the duties of railway employees to look for persons on or near railroad tracks. It would be difficult to reconcile all of the language in the cases. However, they can be distinguished on their facts. So as to not unduly lengthen this opinion, we will not discuss many of the cases cited. Defendant contends that the statements in Coonce v. Missouri Pacific Railroad Co., supra, saying that the defendant's use must be shown to be within the use proven, prevents plaintiff's recovery, as there was no evidence to establish the use of the tracks for lying down. It contends that there was no duty to lookout for or see someone lying down and that at the time of the injury plaintiff was outside the rails and not within the area used. In Coonce, the area was not populated, and the court felt that the evidence of user there did not place a duty upon defendant to keep a lookout to discover a man sitting on the tracks. The opinion noted, 358 S.W.2d at 858, that the rule of waiver of the right to expect a clear track has always been applied to areas where there is considerable population as in cities or towns. Here we have a spur track infrequently used by the railroad but frequently used by pedestrians. It is in a populated area with residences nearby. There is a duty on a railroad to notice that a person may...