Opinion
No. 21417.
October 2, 1950.
APPEAL FROM THE CIRCUIT COURT, HARRISON COUNTY, V. C. ROSE, J.
Randolph P. Rogers, Jr., Martin J. Purcell and Morrison, Nugent, Berger, Hecker Buck, all of Kansas City, for appellant.
Robert M. Murray, Kansas City, R. Leroy Miller, Trenton, for respondent.
This is a damage suit for personal injuries sustained by plaintiff when he drove his automobile into the side of one of defendant's boxcars while a stationary train was blocking a public crossing at night. Plaintiff had a judgment for $1800, from which defendant appeals.
Two contentions are made: 1. That the evidence fails to establish defendant's negligence; and, 2, that plaintiff was guilty of contributory negligence as a matter of law.
Plaintiff's testimony was to the effect that he lived near Laredo, this state; that defendant's tracks ran through said town, and within a half mile of plaintiff's home; that at about eleven o'clock, on the might the casualty occurred, he drove his automobile eastward over the crossing involved, to deliver some guests to their homes; that he was familiar with the crossing; that, about thirty minutes thereafter, while returning to his home, his automobile collided with a boxcar which was standing, stationary, astride said crossing, and that the train was occupying the westernmost set of defendant's double track road.
He stated that, as he approached the crossing, just prior to the collision, he was driving at a speed of about twenty miles per hour; that, at a point some 125 feet east of the crossing, the roadway began an upgrade; that the crossing was about twelve feet higher than was the roadway at that point; that, at the latter point, he slackened his speed and changed to second gear proceeding, until the collision occurred, at a speed of ten or twelve miles per hour; that there was a depression in the roadway, the lowest point of which was about twelve feet east of the crossing; that from that point onward, until the grade of the crossing was reached, the roadway was very steep and his lights slanted into the air; the night was dark, misty, and foggy; that the roadway was narrow, with frozen ruts; that his headlights had some muddy water on them; that his windshield wiper was operating but that vision was partially obscured by fog and mist; that as he approached the crossing he constantly looked to the right, left, and front, watching for a train, but neither saw nor heard one; that there was a one bulb, overhead light, located a short distance west of the crossing, and another street light a short distance away; that he could see a light as he approached the crossing; that he had the window partially lowered; that he could see ahead only about the length of his car; that he did not see the boxcar until he was within a few feet of it, whereupon he promptly applied the brakes; that the wheels locked and the front of the car slid, on the ice, to a point under the side of the boxcar; that the headlights and grill were demolished, that the radiator was driven back against the motor, a fender was torn into two pieces, the hood was bent and torn from the car; and that there was no light at the crossing, no bell or other warning device, no watchman, and no light on the boxcar.
The parties agree that, in the absence of special circumstances which made the crossing peculiarly hazardous, defendant was not guilty of negligence in this case. That is the law. A comprehensive discussion of the rule will be found in Licha v. Northern Pacific Ry. Co., 201 Minn. 427, 276 N.W. 813. The burden is on plaintiff to prove such special circumstances. State ex rel. Thompson v. Cave, 358 Mo. 414, 215 S.W.2d 435; Fitzpatrick v. Kansas City Southern Ry. Co., 347 Mo. 57, 146 S.W.2d 560.
Defendant's duty, under this doctrine, "* * * is a common-law duty governed by the principles of the common law. The exceptional condition making the doctrine applicable must be one known to the railroad company, or one which had existed for such length of time that the company in the exercise of ordinary care should have known that the crossing was unusually dangerous." Flagg v. Chicago Great Western Ry. Co., 8 Cir., 143 F.2d 90, 93.
The basis of recovery in this kind of case is defendant's negligence, 99 A.L.R. 1454, and such negligence must be the proximate cause of the injury. If there is no negligence there can be no recovery. State ex rel. Thompson v. Cave, supra, 215 S.W.2d at page 437.
While there is no negligence, per se, in blocking a crossing with a standing train, it may be negligence to do so unless the railroad company provides a suitable warning to persons traveling on the public road. Whether or not such warning is required depends on the particular surrounding circumstances, such as atmospheric conditions, obscurity and darkness of the crossing, the length of time the crossing is obstructed, and the topography of the land, including the highway and crossing, 99 A.L.R. 1459.
The topography of the land in the vicinity of this crossing was not unusual. There was a rise, from a point 125 feet east of the crossing to the crossing itself, of twelve feet. In State v. Cave, supra, the roadway ran downgrade to the crossing, and that circumstance was considered of no significance. However, ordinarily, automobile lights tend to focus on the roadway closer to the vehicle when traveling downgrade than when traveling upgrade. See Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134, 136. But the slope in this case was so gradual that it made but little difference so far as lights are concerned. State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915, 921. At any rate, it does not aid plaintiff's case.
Because of fog and mist, plaintiff stated, he could only see ahead about a car length, (probably fifteen feet). There was no mist or fog involved in the case of State v. Cave, supra; but such condition was present, and was one of the conditions considered, in the case of Carson v. Baldwin, supra, where it was held that the Railroad Company was negligent in having blocked a busy crossing with a flat car. Plaintiff testified to the effect that his headlights were splashed with muddy water. How much the latter condition contributed to the limited visibility, and how much was due to the fog and mist, is not shown. But for the fog and mist, if the headlights and windshield had been clean, plaintiff must have seen the boxcar in sufficient time to have avoided the collision. State v. Cave, supra. Certainly, defendant cannot be held to have been negligent in failing to provide special warnings because plaintiff could not see adequately on account of the condition of his headlights. We are unable to say, from the evidence adduced by plaintiff, (defendant offered none) that visibility was so limited by mist and fog as to be the deciding factor in this case, so as to be the basis of a charge of negligence for failure to give special warning; and the burden was on plaintiff to establish defendant's negligence. Whether his failure to see the boxcar before he did see it was due to fog and mist, or to the condition of the headlights, or to both, we cannot say with certainty. If we eliminate the mist and fog there is no evidence tending to prove that this crossing was any more hazardous, at the time of the accident, than hundreds of other crossings in this state. Furthermore, evidence of some mist and fog, standing alone, would not be enough to require defendant to take special precaution against accidents. Evidence concerning defendant's knowledge of the condition, when such knowledge was obtained, and other matters, would be material and required.
No evidence was adduced tending to prove the length of time the train was stopped. Consequently it cannot be said that defendant was guilty of negligence in failing to provide a special warning for the reason that it is not shown that the train crew had had sufficient time to do so, even if conditions were such as to have required it. Driskell v. Powell, 5 Cir., 67 F.2d 484, 485; Richard v. Maine Central Ry. Co., 132 Me. 197, 168 A. 811, 813; Yardley v. Rutland Ry. Co., 103 Vt. 182, 153 A. 195, 198.
In view of our ruling on defendant's first contention it is not necessary to discuss its second, that plaintiff was guilty of contributory negligence as a matter of law. However, in passing, we may say that such defense is not barred under any theory of the law in this type of case. Fitzpatrick v. Kansas City Southern Ry. Co., 347 Mo. 57, 146 S.W.2d 560; State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Elliott v. Missouri Pacific Ry. Co., 227 Mo.App. 225, 52 S.W.2d 448, 452, 453.
The judgment should be reversed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed.
DEW, P. J., and BROADDUS, J., concur.
CAVE, J., not sitting.
VANDEVENTER, J. (sitting by order of Supreme Court), concurs.