*1 legal wrong which there This is a a remedy.
should be
I have found no case on similar facts but covered well situation should be provides liability in cases rule which deposits negligently
where a user
foreign substances and obstructions
highways. respectfully
For dissent. these reasons HOUGHTON, Respondent, Lee
Richard
ATCHISON, RAIL- TOPEKA & SANTA FE COMPANY, Corpora- ROAD tion, Appellant.
No. 53049.
Supreme Missouri, Court of
En Banc.
Oct. *2 protruding left rear onto the track.
its left struck The rear of the automobile was engine the train. train front The stopped blocking the engines with the two engines uncoupled highway. The were two from the the two balance of trаin and the engines cross- of were southeast the moved ing, leaving freight the and cars combina- and the tion car northwest of the time, the highway clear. At this conductor flagged highway and traffic rear brakeman Blumer, crossing, the at the of City, one west Blumer, Q. Thaine Kansas and four Rocha, City, crossing. one east of After Wright, Kansas Bittiker & engines across or five minutes the backed counsel, plaintiff-respondent. for coupled freight onto the Gordon, Parker, George Sam D. L. Jack four and combination car. Three or Stevens, Jr., Headley, Joseph R.W. E. crossing. automobiles east of & City, Lathrop, Righter, Gordon Kansas conductor, The whо was west counsel, Parker, de- City, Kansas engine, boarded the instructed fendant-appellant. southeast, engineer proceed ground and returned east of the DONNELLY, Judge. crossing. The train started forward. The conductor rear brakeman boarded jury-tried damages action for train from east side of resulting from an collision automobile-train train as crossing. it left the From Missouri, Clay County, received the time the started forward there $50,000. De- a verdict in the amount of nobody on the west flagging traffic appeals. fendant side of the The collision occurred where defendant’s meantime, plaintiff, knowing D near Law- railroad track crosses Route son, occurrences, approaching of the above D extends Missouri. Route east west. The track extends northwest follow- from west. He was at a intersects the southeast and operated by Helm an Flack automobile is two- angle. rather severe Lawson, Missouri, easterly direc- an strаight blacktop lane and level Helm, “going tion. Flack about hour,” pretty an close to “got to 40 miles object happened see railroad [he] controversy occurred The collision in was,” moving.” He what “seen then P.M., 26, 1965. approximately 9:00 October “put signal, right-hand on” the directional driving a 1953 Chevrolet Plaintiff wаs brake,” “put pulled to the south lights good with brakes automobile consisted Defendant’s train highway, stopped. condition. shoulder cars, and engines, freight nine diesel two as follows: Plaintiff testified car on passenger-baggage combination rear. you “Q. youAs east on ‘D’ going were controversy, as Prior the collision then behind Helm’s car? Mr. approaching right. A. That is northwest, a automobile westbound you Q. your tell us best estimate Can turned and was came to distance judgment about what operator the ditch north of into its you you car as the track with were behind his and northeast of drove along- Q. there before the acci- You are talking about the taillight dent happened? now? Yes, A. just sir. And he turned to the
A. my To the best knowledge right real just fast and I kind of say probably would 70 feet behind *3 pulled to the left just went on him or so. around I him. don’t remember Q. you Do speed know what his was seeing anything after his brake yours and what was ? light come on. Well, A. the last my I looked at Q. you Do mеmory what speedometer I sitting right was happened at all after the time that just hour, about miles an between you started around Mr. Helm’s car ? 35 and 40. A. I have none whatsoever.” Q. Between 35 and 40? A. Yes. Plaintiff’s automobile right struck the Q. Now, All right. you approach- rear car of defendant’s train ed crossing oh, this railroad can as it leaving was speed at a —
you tell us what was the condition of per four or five miles hour. Plaintiff’s road at that time? A. The automobile came to rest dry. road was the middle of the eastbound lane highway. Q. And the weather? It A. was Defendant contends the trial court erred night dark but no moisture whatso- in overruling its for a motion directed ver- ever, okay the weather was then. dict close all the evidence. Q. okay The weather A. Right. was ? asserts that there was evidence that it no negligent. was Q. what, All right. Then if anything, you did notice about Mr. Helm’s Thompson Cave, State ex rel. you car as drove there follow- 414, 417, 418, Mo. 435, 436, 215 S.W.2d ing just him before the accident Bаnc, Court, this en said: occurred ? “In jurisdiction it is established law driving A. He right was all as far as that a guilty is negligence railroad not I could tell. blocking public road without providing warnings signals, unless there or part Q. highway he What circumstances which make the part in and what crossing peculiarly hazardous, and the bur- you were in? den seeking is on damages prove A. ” both south lane We * * * special circumstances. going east. Plaintiff contends that “defendant’s cross- then, Q. That would be this lane here train across created is that correct? dangerous and hazardous use, which was either right, A. That is sir. defendant, known to or should have been along in here? Q. Going this direction known, and thereby that defendant was Yes, negligent A. sir. in failing plaintiff.” to warn We must determine whether a submissible happened? Tell us Q. Then what case against was made defendant on place. what took grounds by plaintiff. asserted all Well, traveling east as we was A. “ ** * red just seen the determining of a sudden question on. we lights on his come consider the
4Q9 contentions, flagmen on side of tracks. each to those most favorable light entirely the train forward the crew- started is not all that accepting true side of acting flagman on the west facts man contrary physical unreasonable plaintiff (from the tracks which side giving natural laws train) tо the east approaching moved inferences all benefit of favorable flagman stopped side where a at least three such evi reasonably may be drawn from * * * the train But, course, the is westbound while dence. every highway. physical moved each unless be submitted upon construction of the liability predicated fact essential to ran east and west with rail- Neither legal and evidence. substantial crossing at a submissibility in tracks severe any fact essential evi- northwest to southeast. The trav- absence of substantial ferred *4 words, liability crossing highway feet in a 22 elled 96 foot dentiary basis. other signals or but there were nо mechanical at conjecture upon guesswork, rest cannot reasonably facing the and no crossbuck east- beyond inferences speculation * * * traffic.” bound the evidence. be drawn from to in a evidence whether question of The Co., Plaintiff cites v. Wabash R. Jenkins of for law case is substantial given ” Mo.Sup., 788; 322 * S.W.2d Coffman v. * St. * Seyer, Mo. Probst the court. Ry. Co., Mo.Sup., Francisco Louis-San 378 802, 798, A.L.R.2d 91 Sup., 353 S.W.2d 583; Baldwin, and S.W.2d Carson v. 346 1252. 984, 144 Mo. S.W.2d These cases do as follows: position is stated Plaintiff’s not assist our determination of the issues in this case. The collision anof automobile created in this case which “The evidence moving with side aof train was not nоt ‘under to whether or jury a issue as involved either case or the Jenkins by the and shown leading Coffman case. In both cases evidence, defendant’s diesel unit of the train the right struck an created highway rear following of the automobile. The con- crossing for and ditions, present case, in the Carson are not knew оr should which ‘defendant use’ of present in (1) only this case: the narrow ‘defendant failed and of which known’ edge platform a flatcar was visi- ordinary care is that to warn’ to street; persons ble coming to out- in an area. The crossing was urban motion; (2) the a was not in box- people when skirts of a town standing adjoining аn track blocked on places houses some numerous and view; (4) the surface street heavily over a business and not level with the a crossing; several other travelled automobiles light fog visibility or mist reduced to a Army base, road was which towns and an slight degree. artery Highway U. S. the main traffic at time which sufficient In Dimond v. R. R. Ass’n of Terminal at least five so that plaintiff’s collision Louis, 333,348, 789, St. 346 Mo. 141 S.W.2d scene at the accident automobiles were 796, a involving a collision of immediately period during three-minute train, moving automobile with the side of a addition, the collision. preceding the this Court said: on moving lights without cross- stopped at the not there evidеnce had been “Whether or car and appellant’s failing of negligence part, of another because some ten minutes re- provide warnings, depends while additional accident. While crew- upon circumstances shown engine to the facts and coupling the particular stop automobiles the record with reference flagmen to as men acted required at A railroad is not to have moving over brakeman, gate Co., main- flagman or or to R. 930. The 181 Mo. 79 S.W. R. every signals lights tain at uncontroverted evidence is as places at highway, but at such automobile was least 2999 feet west necessary reasonably regarded started for- when the train protection travelers. What ward to leave the and the that, reasonably necessarily ceased. neces- follows might be considered crossing plaintiff approached at one the train sary protection for such prior wholly and un- was needless aсross might be deemed another, depend- necessary prior flagging in each case collision and are not relevant duty upon travel a consideration to warn ing upon the amount of trains frequency urged plaintiff. with which highway, the it, which could passed upon the view over they approached trains as be obtained of prior collision it, upon crossing, moved over con prior flagging are eliminated from an issue of conditions. Whether other sideration, question in this the essential jury depends on the fact is made for the particular narrowed fact situation is ” * * * case. rail angle which the the severe whether highway ren road track intersected the There is evidence peculiarly hazardous. dered the *5 traveled, that the heavily sometimes highway was decline hold. The We so to in that it train was an unscheduled the con straight believe and level. We frequently passed over railroad could that the ditions were such high rаilroad track intersected crossing occupation that assume However, the cross way angle. at a severe visible train would be by the cars of its high highway. ing was level with stop to him a motorist in to allow to way straight and level being crossing. This reaching before block nothing to crossing. There was give to true, required was not the railroad aof motorist’s view an eastbound obstruct failed warnings plaintiff additional do not passing We train over case. make a submissible pre general that believe unusually crossing were so
vailing with and remanded The case is reversed should that the railroad defendant. judgment for direction enter prеsence the mere anticipated that crossing would train with directions. remanded Reversed and approach adequately warn a motorist highway. the west on ing from DONNELLY, FINCH, HENLEY, J.,C. however, “of contends, that Plaintiff STORCKMAN, JJ., concur. of whether importance the issue great of an at this danger
there was MORGAN, separate dis- dissents in J., apprecia- nature is the hazardous opinion filed. senting by the crew danger unusual tion of this by the fact that train” as evidenced until the they flagged HOLMAN, JJ., dissent SEILER leave the started forward to opinion dissenting separate concur in MORGAN, J. weakness A fatal from no evidence that there is position is MORGAN, Judge (dissenting). that may found which prior flagging of, upon, cognizant relied true, crew, respectfully dissent—not because as was part of the
on the pronounced Mo. Pac. rules of law Montgomery example, in
4H states, as it limited its consideration opinion, manner but because of the e., fact, angle i. “whether the severe applied been which such rules have track intersected facts of this which the railroad case. peculiarly rendered the pertaining From the multitude of cases evidence, as hazardous.” In fairness to accidents, Mo.Dig., to railroad record, following reflected in the Railroads, 24A, estab- 24 and it is well Vols. significant should hаve con- facts lished: sidered: (1) That blocking public (a) The severe at which the tracks railroad, stand- required the crossed ing alone, negligence, is not an act of train to travel feet to cross duty there is no to warn the roadway. angle, foot At this than the traveling other mere practically rear of presence of the train. traveling plaintiff’s lane of as truck or motor travel special may That circumstances exist might. fact vehicle denies changes which create additional that logic of the that “mere contention crossing peculiarly make the hazard- presence train,” standing ous, such instаnces is a alone, warning, was a sufficient resulting duty traveling to warn the reasoning only justified public by warnings what, where one had a view of signals. or mechanical fact, a train. looked like That (b) There were no lights on flow the train. temporary in nature well *6 that fixed and from those are It (c) train. unscheduled
permanent. оnly speed (d) The special That where such circum- per hour; or miles a fact made permanent, knowledge of stances are only important, because their is existence the railroad extreme presumed; generally where such but lights. absence temporary suddenly or created appreciation by the train crew (e) The crossing, it is being made of the wreck, uncoupling and prior proof incumbent there be created, coupling the had knowledge, railroad had or should peculiarly haz- temporarily, a least had, peculiarly a hazard- crossing calling addition- ardous ous existed that momеnt. warnings. fact is al brushed opinion vir- majority aside that a That after it is determined plain- being tue there no hazardous, peculiarly this additional tiff had relied on temporary, permanent whether there warning. statement With this question remains —did however, that argument, can be no care to the railroad use on evidenсe was available same warning to the provide a sufficient controlling issue vital traveling public? peculiar- a as to or not whether ly crossing existed. The hazardous crossing was determining whether the the rail- experienced employees of on the not or was it undoubtedly thought did. accident, opinion, night aр- had cars (f) The crew
proaching from the east. would OF COLLEGE DISTRICT JUNIOR charge it with not he unreasonable to CITY, Mis KANSAS METROPOLITAN souri, Stephens, James W. L. Cas William knowing that as as this lane soon sell, Lyons, Kenagy, Jr., Reed B. P. Robert clear, would travel was Wasson, Wells, Gwendolyn Anna K. M. temporarily proceed blind west Coulson, Plaintiffs-Respondents, Linda L. seeing unlightеd plaintiff from slowly traveled MAYSE, Jr., Mayse, along plaintiffs lane of travel. Betty Harold B. M. Haz Miller, Buckley, el F. Cora C. E. Esther signs were cross-buck (g) The usual Brown, Margaret Yonke, Edythe J. P. missing. Lynn, Ramirez, Victoria and Albert B. Thaxter, Defendants-Appellants. on the west flagman (h) One No. 25205. from which (the side side and one approached) City Appеals. Kansas Court of prior At a time side. east on Missouri. flagman on departure, 2, June 1969. side, regardless went east ap- saw cars the crew fact Supreme Motion for Transfer to Court and which proaching from the west Denied Oct. reasonably find included jury could though car. Even task of this assumed abandonment the original relevant
might classifica- proper
question as to sig- highly it is
tion of not the warn-
nificant whether of due met the demands given
care.
Obviously, the evidence could sustain existing
finding defendant knew of the and that its abortive effort
warn failure to was indicative existing care under the circum- issue,
stances. On the contested reasonable
minds could differ to whether
crossing, perhaps ordinarily not extra hazardous, of it under
made so defendant’s use existing. Clearly conditions there
jury issue created and it been has plaintiff.
resolved its verdict extended dissent has
quotations authority each or citations of existing
summarized law version precedents subject with the consistent opinion.
cited in the sub- made a would hold case on the issue defendant’s
missible
negligence.