This аppeal arises from a negligence suit brought by Jerome and Tammy Lohmann, plaintiffs, against Norfolk & Western Railway Company, defendant, for injuries sustained by Mr. Lohmann when the tractor-trailer unit he was driving was struck by defendant’s train at a railroad crossing on Highway 24 in Monroe City, Missouri. Following a trial, plaintiffs obtained judgments for injuries and loss of consortium amounting collectively to $9,639,000.00. Norfolk & Western Railway Company appeals from the trial court’s judgment in favor of plaintiffs. On appeal, the railroad raises ten contentions of error, including claims that the court erred in failing to make rulings which would have excluded a claim preempted by state and federal statutory law. The railroad also raises contentions related to the instructions, to the denial of a continuance and the admission and exclusion of certain evidence.
Judgment is affirmed.
FACTUAL BACKGROUND
The collision between the truck and the freight train occurred on December 22,1990, оn the south end of Monroe City, Missouri, at the intersection of Highway 24 and defendant’s railroad tracks. Mr. Lohmann was driving a truck for United Parcel Service from Columbia, Missouri, to Burlington, Iowa. Highway 24 is a major highway, carrying significant amounts of traffic. The railroad crossing at Highway 24 handled a daily traffic volume of approximately 4,000 vehicles and up to 12 trains a day.
Robert Wemeth, who also drove for UPS, followed several miles behind Lohmann on the trip from Columbia to Burlington in his double tractor-trailer. Lohmann and Wer-neth left Columbia at approximately 4:00 a.m. and headed north on Highway 63 to Moberly, and then northeast on Highway 24 to Monroe City.
Just before 6:00 a.m., Plaintiff Lohmann approached the train crossing in Monroe City in the darkness. Plaintiff was northbound. There is a factory operated by Pace Industries on the north side of the tracks, east of the crossing. Lohmann and Werneth were familiar with the train crossing, having traveled the route regularly. As Plaintiff Loh-mаnn approached the crossing, a Norfolk train destined for Moberly was also approaching the crossing from the east at the same moment. The train was traveling in excess of 40 miles per hour. At a distance of approximately one-quarter mile from the crossing, the train’s brakeman noticed plaintiff’s truck moving toward the crossing. Observing plaintiff’s truck decelerate, the brakeman anticipated the truck would stop.
Mr. Lohmann’s collision with the train was the third collision at that crossing in 1990. All of the collisions occurred in the darkness. Prior to 1990, there had been only one collision in the history of that crossing, which had existed at least 28 years. There was evidence that the electrical equipment related to the flashing lights was quite old, and possibly in need of replacement. There was also evidence that, on several occasions in 1989 and 1990, the warning lights did not come on as a train was approaсhing.
In October, 1993, the Lohmanns filed suit against the railroad for Mr. Lohmann’s injuries. Plaintiffs alleged that the railroad was negligent in failing to warn, failing to keep a lookout, failing to slow down the train, failing to have proper warning equipment at the crossing, and failing to adequately maintain the equipment. Plaintiffs alleged that the crossing was unusually hazardous, and that because of the extra danger the railroad was required to exercise special care to avoid a collision. After a trial, the jury returned a verdict in favor of plaintiffs, assessing Mr. Lohmann’s damages at $8.5 million, and Mrs. Lohmann’s claim for loss of consortium at $3.4 million. The jury allocated 81% of the fault to the railroad, and 19% to Mr. Loh-mann. Thus, the judgments for plaintiffs were calculated at $6,885 million for Mr. Lohmann and $2,754 million for Mrs. Loh-mann. The railroad appeals the judgment.
Preemption
The railroad raises two claims of error related to the issue of liability for the failure to install electronic gаtes at the railroad crossing. First, defendant claims that the trial court erred in failing to grant its motion for directed verdict or motion for judgment notwithstanding the verdict on Lohmann’s claim of inadequate crossing protection and in submitting the claim to the jury because the issue of the duty to install electronic gates has been preempted by state and federal law. Second, defendant argues that the trial court erred in allowing the admission of evidence regarding the lack of electronic gates. The railroad also has three other claims of error which are indirectly related to the effect of the trial court rulings on the issue of gates. Points I through V will be considered together.
Defendant railroad presented evidence in this case that the state had exercised regulatory jurisdiction over the crossing in question in 1982 when it ordered that larger flasher lenses be installed at the crossing. The parties agree that it is clear under Missouri law that the railroad has no authority to install any new crossing safety equipment without the permission of the Division of Transportation. It was also uneontroverted at trial that in 1982, federal funds were used to improve the lenses оn the flasher lights. The expenditure of federal funds in the installation of warning devices has been regarded as key in determining whether federal law has preempted the common law with regard to a particular crossing.
CSX Transportation,
In their petition, the plaintiffs alleged that defendant “had a duty to plaintiffs to warn of the approach of the train toward the grade crossing with U.S. Highway 24, to reduce its speed, to maintain a lookout, to keep its right-of-way free of obstructions, and to take other actions which would have prevented the collision.” Plaintiffs further specifically contended that defendant was negligent in various particulars, some of which were related to the lack of equipment, or condition of equipment at the crossing, and some of which were related to the alleged failure of the operators of the train to slow down, and to sound warnings as it approached the crossing. Defendаnts moved before trial for rulings which would have removed from the case the issue of the electronic gates at the intersection. Defendant contended that it had no legal authority or responsibility for making decisions about electronic gates, because such decisions are vested exclusively in the state Division of Transportation pursuant to federal and state law. The trial court denied such motions in pre-trial rulings. During trial, the court admitted evidence related to the absence of electronic gates at the intersection.
At the conclusion of the evidence, over plaintiffs’ objection, the trial court reconsidered the preemption issue and resolved the issue in favor of defendant. The court submitted a withdrawal instruction to the jury, removing the issue of automatic gates from its consideration. Instruction No. 12 reads: “The issue of the lack of gates at the crossing is withdrawn from the case and you are not to consider such issue in arriving at your verdict.”
3
This instruction was modeled after MAI 34.02. Plaintiffs submitted their other claims of negligence to the jury. Plaintiffs’ counsel did not mention the lack of
Plaintiffs’ Claims Were Submissible
The trial court, of course, could not grant a directed verdict to defendant on all issues even after it concluded that the gate issue was preempted. The case involved multiple allegations of negligence, including a generalized failure to warn allegation. Thus, even if the defense of preemption applied to the issue of the electronic gates, the other claims were submissible because there were claims of inadequate warning in other respects, fаilure to maintain a lookout, failure to decelerate, and failure to properly maintain the flashing lights at the crossing. Plaintiff's presented extensive evidence that the crossing was extremely dangerous, especially in the darkness, because the warning lights were faulty and because an approaching train was difficult to see at that location due to the ‘Visual pollution” in the area. Plaintiffs also presented evidence that the railroad knew that the flashing warning lights had failed to work on several occasions in the past. Inoperative warning lights are, of course, more dangerous than no warning lights, because the non-operation of signals which customarily operate has been regarded as amounting to “an assurance by the railroad that no train is in fact approaching.” 74 C.J.S. Railroads § 734 (1951). Plaintiffs’ argument was that, given the dangerousness of the crossing, and given the railroad’s knowledge that the signals did not consistently operate, the railroad had a duty to approach the crossing with great caution, to reduce speed, to keep a careful lookout, to sound a warning, to ensure that the flashing lights are working, and to warn in any other reasonable fashion. There was evidence to support plaintiffs’ submission of these other claims.
The Court Withdrew the Gates Issue
The court did withdraw the issue of the failure to provide electronic gates from the jury’s consideration. If a court has allowed the admission of evidence which the court subsequently decides was not proper, it may use a withdrawal instruction to withdraw the improper matters from the jury. There is a presumption that the jury follows its instruction.
Barlow v. Thornhill,
The Objections to the Instructions Were Not Preserved
The railroad contends on appeal that instructional mistakes combined with the inadmissible evidence to make it impossible for the jury to disregard the issue of the gates. Although properly objecting to the verdict directing instructions at trial, the railroad failed to preserve the issues for appeal by failing to include the issues in its motion for a new trial. Defendant contends on appeal that the trial court erred in tendering Instruction No. 6, which did not specify the type of warning that defendant failed tо provide and the reasons the crossing was “unusually hazardous” so that the jury was allowed to improperly speculate on these issues. Defendant argues that the trial court erred in submitting Instruction No. 5 because it improperly assumed the disputed fact issue of whether the crossing lights were operating. Defendant further contends the instruction was erroneous in that there was no evidence that defendant’s train could have avoided the accident by activating the emergency brakes once the train crew became aware of the hazard posed by plaintiffs truck.
Plaintiffs claim these alleged errors were not preserved for appellate review because defendant failed to raise claims of error to this instruction in its motion for new trial. Defendant specifically objected to these instructions during the instruction conference at trial. However, defendant’s very extensive motiоn for new trial failed to preserve these claims of error. Defendant counters that these errors were preserved for appellate review pursuant to Rule 78.07, which provides in part: “Where definite objections or requests were made during the trial in accordance with Rule 78.09, including specific objections to instructions, a general statement in the motion [for new trial] of any allegations of error based thereon is sufficient.” Defendant’s general allegation of error in its motion for new trial stated:
In addition to the errors discussed above, defendant also requests the Court enter an order granting defendant’s Motion for New Trial/Judgment Notwithstanding the Verdict, based on any other rulings of the Court to which defendant objected or requests of defendant which were not granted by the Court as may be revealed by therecord, when available, pursuant to Supreme Court Rule 78.07 and 78.09.
This general allegation in defendant’s motion for new trial was so vague as to be meaningless. It requires the trial judge to remember and think through every objection made at trial. No trial judge is capable of meeting this standard in a complex and lengthy case. This “general allegation” was not sufficient to preserve defendant’s objection as to Instructions No. 5 and 6 for appellate review.
See Bowman v. Burlington Northern, Inc.,
The Withdrawal Instruction Was Considered Along With the Verdict Director
Although the verdict directing instruction submitted a general “failure to warn” allegation, without specifying what kind of warning, the withdrawal instruction should have been understood as withdrawing the issue of the gates from the jury’s consideration. For the reasons already stated, we presume that the jury was able to follow the withdrawal instruction and to segregate out the issue of crossing gates from other possible ways of warning the plaintiff.
There Was Evidence That The Crossing Was Unusually Hazardous
Moreover, the plaintiffs plеaded that the crossing was unusually hazardous, and presented evidence from which a jury could make such a finding. Generally, a crossing is extrahazardous when the circumstances are such that a railroad can reasonably anticipate that a person exercising ordinary care would nevertheless be subjected to the likelihood of injury.
Carson v. Thompson,
Other Accidents
In Point VI, defendant asserts that the trial court erred in admitting evidence of other collisions involving trains because the other collisions were not similar and did not arise out of the same cause as the December 22, 1990 accident at issue in this case. The trial court allowed testimony about three other collisions which occurred at the Monroe City crossing before the December 22, 1990 acсident. Archie Burnham, Jr., a consulting engineer specializing in traffic engineering
Trial courts have substantial discretion in ruling on the admissibility of evidence of similar occurrences.
Richardson v. State Highway & Transp. Comm’n,
The trial court generally will admit evidence of prior accidents if the accident sought to be admitted: (1) is an accident of like character; (2) occurred under substantially the same circumstances; and (3) the accident resulted from the same cause.
Hess v. Chicago, Rock Island & Pac. R.R.,
Where the theory of recovery is negligence, any knowledge or warning that defendant had of the type of accident in which plaintiff was injured clearly aids the jury in determining whether a reasonably careful defendant would have taken further precautions under all the facts and circumstances, which include the knowledge of defendant of prior accidents.
Stacy v.
Truman Medical Center,
The proponent probably will want to show directly that the defendant had knowledge of the prior accidents, but the nature, fre-. quency or notoriety of the incidents may well reveal that defendant knew of them or should have discovered the danger by due inspection. Since all that is required is that the previous injury or injuries be such as to call defendant’s attention to the dangerous situation that resulted in the litigated accident, the similarity in the circumstances of the accidents can be considerably less than that which is demanded when the same evidence is used for one of the other valid purposes.
Stacy,
Defendant claims that the evidence of prior accidents was not sufficiently similar to the instant accident and that the accidents were too remote in time to be admissible.
Prior Signal Malfunctions
Defendant also objected to evidence of prior signal malfunctions which had occurred at the crossing. Defendant claims that the testimony should not have been admitted into evidence because it was based on unverifiable hearsay testimony presented by witnesses lacking personal knowledge of the occurrences, and that the occurrences were not similar to the December 22, 1990 accident. Lewis Frosch, defendant’s track inspector and foreman from 1975 to 1989, testified that he received several reports about signal malfunctions at the crossing in 1989 and 1990. Also, witness George Yates testified that six months before Lohmann’s accident he came close to experiencing a collision with the train when the warning flashers failed to activate. Witness Joe McCallister testified that he witnessed two incidents in 1990 where the warning flashers activated later thаn they should have. In one instance, he observed that the train was actually at or past the crossing before the warning fights activated.
The standard applicable to the trial court’s ruling is whether the trial court abused its discretion in admitting the evidence.
Copeland v. Mr. B’s Pool Centers, Inc.,
An “abuse of discretion” standard, by definition, means that, in many instances, the ruling of the trial court would be upheld regardless of whether the evidence had been admitted or excluded. The appellate court simply defers to the trial court in view of its superior opportunity to evaluate the proffered evidence in the context of the trial.
Id.
In other cases, Missouri courts have allowed testimony regarding prior signal malfunctions at railroad crossings.
See Grace v. Smith,
Safety and Accident Record
In Point VII, defendant claims that the trial court erred in allowing plaintiffs to present testimony about defendant’s overall safety and accident record as compared to others in the industry because the evidence was irrelevant and prejudicial. Plaintiffs’ counsel questioned Danny Gilbert, defendant’s manager of grade crossing safety, about whether it was true that defendant had the highest accident rate among railroads. Defendant objected to the question, contending it had no relevanсy to the Lohmann accident. The trial court sustained the objection. Defendant moved for a mistrial, which was denied by the trial court. Defendant does not now claim that the trial court erred in failing to grant a mistrial. Thus, defendant has no
Defendant also complains about certain testimony given by David Goode, defendant’s chairman. Over defendant’s objection, plaintiffs were allowed to introduce a portion of Goode’s videotaped deposition testimony. The focus of Goode’s testimony was defendant’s general approach to grade crossing safety and deficiencies in defendant’s nationwide safety record. The evidence was offered to show defendant’s lack of an effective safety program. Missouri courts have allowed the introduction of evidence that, at the time of an accident, the defendant did not have an adequate or appropriate safety program in place.
See Tune v. Synergy Gas Corp.,
Closing Argument
In Point VIII, defendant argues that the trial court erred in overruling defendant’s objections to plaintiffs’ closing argument regarding the state’s post-accident conclusions on crossing safety. The trial court further erred, according to defendant, in overruling defendant’s objections to plaintiffs’ unduly inflammatory arguments.
Plaintiffs respond that defendant failed to preserve these alleged errors for appellate review because defendant failed to raise the allegations in its motion for new trial. At trial, defendant made specific objections to the above noted portions of the closing argument. However, defendant did not address these alleged errors in its motion for new trial. Defendant did include an entirely different allegation of error relating to another portion of closing argument. Defendant did not mention the contentions now presented. Defendant’s general allegation of error, as discussed above, was so vague that it preserved absolutely nothing for review. Point VIII is denied.
Tachograph Reports
In Point IX, defendant claims that the trial court erred in excluding Lohmann’s prior tachograph reports, which were recorded on Lohmann’s previous trips between Columbia and Monroe City. Defendant further claims that the court erred in refusing to allow evidence of Mr. Lohmann’s prior accidents because the court allowed Lohmann to introduce testimony and argue that he was safety-conscious and a professional driver who would have stopped if the lights had been flashing.
During trial, defendant attempted to introduce evidence of three prior tachograph reports recorded by Lohmann on previous trips between Columbia and Monroe City recorded on October 22, 1990, October 23, 1990, and December 17, 1990. A tachograph is a recording or registering device that in this case measured the speed Mr. Lohmann’s truck traveled on his prior trips. The prior tachographs showed that Lohmann had a mean average speed of about 58 miles per hour on these trips. The trial court refused to admit the tachographs. Defendant argues that it sought to introduce this evidence to rebut Lohmann’s evidence that he was a good driver and was safety-conscious.
Bob Werneth testified on behalf of Loh-mann at trial, stating:
Werneth: I felt better with him in front, he’s pretty keen, pretty young, good eyes and stuff. He was an exceptional kid. He was just keen about stuff. He once flew an airplane, you know.
Respondent: What?
Werneth: He was a pilot, had a pilots license, and, I don’t know, he would see deer where I wouldn’t see them on the road. He was very safety-conscious.He always wore a seat belt, never smoked cigarettes. Different kind of kid, keen, sharp. I would have rather had him in front than me. My vision isn’t that great.
Defendant, citing
Williams v. Bailey,
Prior Accidents
Defendant also argues that the trial court abused its discretion in excluding evidence that Lohmann had been involved in twelve vehicular collisions prior to this incident. Generally, evidence of similar prior acts of
negligence
are not admissible to show that a party acted negligently at the time of a subsequent injury.
McComb v. Vaughn,
Denial of Continuance
In Point X, defendant contends that the trial court erred in denying defendant’s request for a continuance because it did not afford defendant the requisite reasonable opportunity to defend against new theories of liability contained in plaintiffs’ amended complaint by conducting additional discovery and filing a motion for summary judgment. The original petition in this case was filed on October 15, 1993. On August 4, 1995, approximately three weeks before trial, plaintiffs requested leave to amend the petition to add three new claims against defendant: 1) failure to provide adequate crossing protection; 2) failure to train railroad personnel adequately in designing, constructing, and maintaining grade crossings; and 3) negligence per se in failing to comply with federal regulations at a crossing where federal funds had participated in an upgrade of crossing protection. Defendant objected to plaintiffs’ request to amend the petition. On August 14, 1995, the trial court granted leave to amend the- petition. On August 23, 1995, defendant filed a motion for a continuance, which was subsequently denied by the trial court.
Defendant complains that it did not have a reasonable opportunity to conduct discovery on the claim for inadequate crossing protection. Defendant contends that it was therefore unable to establish conclusively before trial that such claim was preempted by state and federal law. Also, defendant claims it needed á chance to develop its state law preemption defense by conducting additional discovery to suppоrt its contention that the Missouri Division of Transportation had exclusive jurisdiction over the controls at the crossing. Defendant argues that it lacked the time to develop its defense and to brief the issues related to this claim so that the trial court could rule on preemption prior to trial. Instead, extensive testimony and exhibits on preemption issues were presented to the jury that, defendant contends, could not be cured by a withdrawal instruction.
Plaintiffs claim that the amendment of their petition did not create any surprise or hardship which would have prejudiced defendant, because in the initial petition plaintiffs included a claim that the railroad failed to properly maintain its grade crossing. Citing the Manual on Uniform Traffic Control Devices, plaintiffs claim that the word “maintain” necessarily includes “not just repair, but the continuous upgrade of safety features as conditions warrant.” Thus, plaintiffs claim that thеre was no injection of any new issue into the case, but rather a clarification of an already existing claim. We note also that, when plaintiffs speak in their petition of failure to warn, one of the things which readily comes to mind is the absence of gates, which are a pre-eminent warning device. We agree that defendant had plenty of notice it would be dealing with the preemption issue in this matter long before the amendment. We fail to see exactly how additional discovery would have assisted the defendant in arguing that the railroad had no authority to install electronic gates, and defendant fails to explain. Our review of the pleadings in the light of the overall circumstances leads us to conclude that defendant could reasonably have anticipated the need to be prepared to deal early with the issue of whether the railroad had, by law, any authority and respоnsibility to install crossing gates.
Generally, a ruling on whether to grant a continuance rests largely in the trial court’s discretion.
Seabaugh v. Milde Farms, Inc.,
Defendant claims that this ease is similar to
Missouri Pub. Serv. Co. v. Argenbright,
Conclusion
The judgment is affirmed.
Notes
. Plaintiff Lohmann suffered serious brain injuries as well as other very severe injuries, and was unable to offer testimony at trial. The dispute about whether the lights were functioning was based in part in the conflicting opinions of expert witnesses. Plaintiff’s expert examined the equipment which was destroyed in the course of the collision, and determined from a remaining light bulb that it was not in a flashing mode at the time the lighting equipment was destroyed. Also, one witness, who was behind Lohmann as Lohmann approached the crossing, remembered looking toward the crossing, but did not remember seeing the warning lights flashing. She was already aware that a train was approaching, and thus was not particularly looking for the warning lights. However, she believes that if the lights had been on she would have noticed them. The brakeman testified that as he looked toward the crossing from some 1500 feet out, he could see the flashing lights come on. He did not testily that he observed the lights after that point. The evidence showed that the circuit was designed so that the lights would come on at about 2200 feet. There were also some individuals who presented evidence that, on various occasions in 1989 and 1990, the warning lights did not activate when they should have, or did not activate at all when a train was passing through the crossing.
. The Federal Railroad Safety Act has been repealed. Pub.L. 103-272, § 7(b), July 5, 1994, 108 Stat. 1379. The repeal has no effect on proceedings commenced before the date of the repeal. Id. See Pub.L. 103-272, § 20106, July 5, 1994, 108 Stat. 866 for the currently applicable provisions.
. The defendants, although contending that a withdrawal instruction was inadequate relief, tendered its own more thorough withdrawal instruction, which the court rejected. Defendant also contends that the ruling rejecting its tendered instruction was also error. However, defendant has no authority for this contention. Even if defendant's instruction was better than the instruction given, we find no error warranting relief in the refusal to give defendant’s proposed instruction.
. Plaintiffs contended at trial that the railroad, upon having notice of the dangerousness of the intersection, had a duty to recommend to the Division of Transportation that electronic gates be ordered for the crossing. The trial court ruled this issue against the plaintiffs. That issue is not before us on this appeal and is not addressed.