Walters v. Terminal Railroad Ass'n

569 S.W.2d 228, 1978 Mo. App. LEXIS 2181
CourtMissouri Court of Appeals
DecidedMay 23, 1978
DocketNo. 37257
StatusPublished
Cited by1 cases

This text of 569 S.W.2d 228 (Walters v. Terminal Railroad Ass'n) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walters v. Terminal Railroad Ass'n, 569 S.W.2d 228, 1978 Mo. App. LEXIS 2181 (Mo. Ct. App. 1978).

Opinion

REINHARD, Judge.

This is a suit for damages for permanent injuries received by plaintiff when his automobile was struck by defendant’s train. The jury returned a verdict in favor of plaintiff in the amount of Eleven Thousand Dollars ($11,000.00), but the court sustained defendant’s motion for judgment in accordance with defendant’s motion for a directed verdict at the close of all the evidence. Plaintiff appeals.

The accident occurred on the evening of November 23, 1971, at the intersection of Bartold Avenue and defendant’s single set of railroad tracks in Maplewood. In the immediate vicinity of the intersection, Bar-told runs in a northerly-southerly direction, and the tracks intersect Bartold in a generally easterly-westerly direction. Approximately 200-250 feet south of the crossing, Bartold winds sharply to the west. To a motorist proceeding north on Bartold, the railroad crossing becomes visible just after he rounds the turn. From this point, Bar-told grades downward until it intersects with Manchester Road.

As one approaches the tracks from the south, his view to the west is obstructed by a hill which rises sharply from the southwest corner of the intersection, two utility poles near the base of the hill, a utility pole further south of the intersection on the west side of Bartold, and a 4' X 6' business [230]*230sign at the base of the hill. There are no flashing signals but there is a wooden cross-arm sign located at the southeast corner of the intersection. The speed limit on Bar-told is 30 miles per hour.

Plaintiff had lived in the vicinity of the railroad crossing for about fifteen months prior to the time of the accident but worked outside the area during the week. He was familiar with the crossing, although he traveled over the crossing only on weekends. He claimed he had never seen a train at the Bartold crossing.

The evening of the accident, plaintiff was proceeding north on Bartold. It was dark outside, and plaintiff’s car radio was turned off. When he made the turn from the west to the north on Bartold, he was traveling less than 20 miles per hour. With his foot on the brake, he was reducing his speed as he drove down the hill in the direction of Manchester Road. As he approached the tracks, he did not look to his left. He heard a whistle, at which time he looked to his left and saw the light of the train approximately thirty (30) feet away. Prior to hearing the whistle which alerted him to the train’s presence, plaintiff heard no other whistle or bell. Plaintiff stipulated that the train was traveling eight (8) miles per hour as it approached the Bartold crossing from the west.

The only evidence of stopping distance came from questions asked of plaintiff by defendant:

“Q. Within a distance of 50 feet going at the speed you were going when you came down the street that evening, if you had chosen to stop your automobile by applying your brakes could you have stopped at 50 feet?
A. I believe so.
Q. And if you could stop at 50 feet, you could of course stop at 75 feet?
A. Yes sir.”

Plaintiff called as witnesses Robert Bower, the train’s engineer, Harry Bremer, the switchman, and Carl Morgan, who was riding with the engineer. Morgan testified he could not see “too far” up Bartold because “the hill gets in your way”, and that when a train is one hundred feet up the track, he can only see 30-40 feet up Bartold because of the hillside and trees. Bower, the engineer, stated the train was about “35 feet, 40, 50 feet” from the intersection when he first saw plaintiff’s car. He could not have seen it sooner because of a big factory and a hill. Bower said he was unaware of a Maplewood City ordinance requiring the bells to be rung 80 rods before a crossing and admitted that the bell was not rung from a point 80 rods back. He testified the bell was rung and the whistle blown about 300 feet from the crossing. Morgan said the horn was blown 100-150 feet from the intersection. A police report, admitted into evidence without objection, indicated all three crew members had stated that as the train neared the crossing, its light was flashing. At trial, however, the engineer denied this statement and testified the light was on but was not flashing.

Plaintiff presented Jay P. Mueller, an engineer and surveyor who had prepared a plat of the area showing various elevations. On cross-examination he testified that when a motorist is 80 feet south of the crossing on Bartold, he can see 180 feet down the track to the west; from a point 50 feet south of the track, a motorist could see 250 feet to the west; and at a point 30 feet south of the tracks, the hill to the west of Bartold would not obstruct a motorist’s view of the tracks to the west, though the 4' X 6' business sign would. These distances were based on computations made by the witness on the stand using the plat he had prepared. Photographs of the scene, taken by witness Allen Davis, were admitted in evidence.

Plaintiff submitted on defendant’s common law duty to warn and its failure to comply with an ordinance of the City of Maplewood requiring that, “The bell of each locomotive engine shall be rung at the distance of at least eighty rods from the place where the railroad shall cross any street or thoroughfare of this City, and shall run continually until said engine has passed such crossing.” Plaintiff made a submissible case on both theories.

[231]*231Plaintiff argues that he was not contribu-torily negligent as a matter of law and that the court erred in sustaining defendant’s motion for judgment in accordance with its motion for a directed verdict. Defendant contends plaintiff was contributorily negligent as a matter of law because:

Plaintiff’s own evidence from himself and his surveyor and his photographer show that when plaintiff was 75 feet from the railroad crossing he was traveling at a speed within which he could stop before reaching the crossing, and at that time the train was clearly within his view, . By his own admission, plaintiff did not look for a train; although he was fully aware of the existence and location of the railroad crossing. There was no evidence to the contrary, and plaintiff is bound by that testimony.

In other words, defendant claims the evidence conclusively establishes that if plaintiff had looked he would have seen the train and that at the speed he was traveling he could have stopped in time to have avoided the accident.

The rule in Missouri as to whether contributory negligence has been established as a matter of law in cases such as these is that pronounced in Zumault v. Wabash R. Co., 302 S.W.2d 861, 862-63 (Mo. 1957):

The burden of proving plaintiff’s contributory negligence was on the defendant. The plaintiff was not obliged to prove as a part of his case that he was in the exercise of due care for his own safety. * * * * * *
Before the court can declare that contributory negligence is shown as a matter of law, such negligence must clearly appear from admitted or conclusively proved facts. If reasonable men may honestly differ with respect to the inferences to be drawn from such facts, then the question whether the driver exercised the care required for his own safety is for the jury. (Citations omitted). . . .

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Related

Doyle Ex Rel. Doyle v. St. Louis-San Francisco Railway Co.
571 S.W.2d 717 (Missouri Court of Appeals, 1978)

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Bluebook (online)
569 S.W.2d 228, 1978 Mo. App. LEXIS 2181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walters-v-terminal-railroad-assn-moctapp-1978.