Davis v. Illinois Terminal Railroad Company

Supreme Court of Missouri

Davis v. Illinois Terminal Railroad Company

307 S.W.2d 395, 1957 Mo. LEXIS 546

CourtSupreme Court of Missouri

DecidedNovember 12, 1957

Docket46130

StatusPublished

Cited by8 cases

This text of 307 S.W.2d 395 (Davis v. Illinois Terminal Railroad Company) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davis v. Illinois Terminal Railroad Company, 307 S.W.2d 395, 1957 Mo. LEXIS 546 (Mo. 1957).

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Opinion

HOLLINGSWORTH, Presiding Judge.

Robert F. Davis was fatally injured when* an automobile driven by him struck the side-of defendant’s freight train at the crossing of defendant’s railroad over Illinois State Highway No. 1S9 near the City of Ed-wardsville, Illinois. Plaintiff, Verna E. Davis, as administratrix of the estate of her deceased husband, instituted this action to recover the sum of $20,000 for his wrongful death. The petition, after pleading due care on the, part of deceased, alleged that *396 the collision and his death were directly caused by the negligent failure of defendant to keep flasher lights maintained by it at the crossing in working condition. Defendant denied the allegations of the petition and further pleaded that the death of plaintiff’s husband was caused in whole or in part by his negligent failure to maintain a lookout for the presence of the train upon the crossing. The case has been twice tried to a jury. The first trial resulted in a verdict and judgment for defendant, from which plaintiff appealed to this court, where the judgment was reversed and the cause remanded for a new trial. See Davis v. Illinois Terminal Railroad Company, Mo., 291 S.W.2d 891.

The instant trial resulted in a verdict and judgment for plaintiff in the sum of $20,-000. Defendant has appealed, contending that reversible error was committed by the trial court in refusing to admit into evidence certain photographs of decedent’s wrecked automobile and the wreckage collected therefrom at the scene of the collision; in permitting plaintiff’s counsel to make improper remarks in his closing argument; and that the “verdict is the result of passion and prejudice on the part of the jury and sharp practices on the part of the plaintiff’s counsel and an emotional outburst on the part of plaintiff, all of which was calculated to and did deprive defendant of a fair trial, * * Defendant also contends, as it contended on the former appeal, that plaintiff did not prove decedent’s due care, as required by the law of Illinois, and that the evidence shows decedent to have been guilty of contributory negligence as a matter of law.

The evidence at the instant trial, with insignificant exceptions, is conceded to be substantially the same as that set forth in the opinion rendered on the first appeal, to which reference is made. A brief summary will suffice for an understanding of the questions presented' on this appeal.

Plaintiff’s evidence tended to show that, at the direction of the Illinois Commerce Commission, defendant, since 1936, was required to maintain in good working order during all hours of day and night flasher lights at said crossing; that said lights were so designed as to flash red warning signals to travelers on the highway when any train approached and entered upon the crossing and to continue to flash such signals until the train had completely cleared the crossing; that plaintiff’s husband was familiar with said crossing and the operation of said lights; that at about 1:15 a. m., on September 19, 1954, as defendant’s westbound train stood upon the railroad track over the crossing, decedent drove his northbound automobile into it with such force as to fatally injure him; and that the flasher lights were not in operation at that time.

On the other hand, defendant’s evidence tended to show that the flasher lights were in operation as the train approached, entered upon, stopped and remained upon the crossing; that for a distance of 1,000 feet or more south of the track Highway 159 was straight and that a traveler approaching from the south had an unobstructed view thereof and plainly could see the lights in operation; that after the train had stood upon the track for one and one-half minutes, with the eleventh boxcar from the front end of the train across the highway and the remaining boxcars, some 26 of them, on the track to the east of the crossing, it began a slowly backing movement, at which time decedent drove his automobile into the approximate center of the boxcar then across the highway with such speed and violence as to force the front part of the automobile under the boxcar, thereby damaging the braking apparatus of the latter and causing an automatic application of the brakes, stopping the train within a few feet; and that the force of the collision was such as to demolish the automobile, tear its motor from the chassis and leave it beneath the train.

On the first appeal, we gave extended and careful consideration to defendant’s *397 contention that plaintiff had not made a submissible issue of due care on the part of her decedent and that plaintiff’s evidence showed decedent to be guilty of contributory negligence as a matter of law. A further review of the additional authorities cited by defendant on this appeal, the cases cited in our first opinion and the conclusions therein reached leaves us convinced that plaintiff made a submissible case under the law of Illinois. We, therefore, adhere to the ruling there made on that question.

We now consider defendant’s assignment that the court prejudicially erred in refusing to admit into evidence two photographs, Defendant’s Exhibits D and E, showing the violence done to decedent’s automobile when it collided with the boxcar. It is defendant’s contention that such photographs reveal that when decedent drove his automobile into the side of the train he was traveling at such a high rate of speed as of itself bespeaks his negligent failure to maintain a proper lookout; and that the photographs more accurately portray the fact of the speed of his automobile than any other available evidence.

As above stated, Highway 159 is straight and substantially level for a distance of at least 1,000 feet immediately south of the crossing and the view of a traveler approaching from the south is completely unobstructed. Defendant’s Exhibit F, here reproduced, establishes those facts:

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