Court of Appeals of Missouri, Southern District, Fourth Division
FROM THE CIRCUIT COURT OF WEBSTER COUNTY Honorable Michael O.
E. SCOTT, J.
address, again, the matter of improper not-in-MAI jury
Hale was driving alone at night on a familiar road when she
struck the side of a train's lead engine at a marked
crossing less than a mile from her home. Hale sued, the
railroad ("BNSF") obtained summary judgment, Hale
appealed, and we reversed and remanded, finding genuine
issues of material fact that precluded summary judgment.
See Hale v. Wait, 364 S.W.3d 720, 721, 723 (Mo.App.
trial thereafter, it was established that Hale could have
seen the train when she was 300 feet from the crossing, but
did not look until she was five feet from the crossing and
left no skid marks before striking the locomotive's side.
She testified that she had no warning because the crossing
lights and bells did not activate and the train crew did not
properly sound the horn. BNSF offered a wealth of testimony
and documentary evidence to the contrary. In closing
argument, Hale's counsel told jurors the case boiled down
to whether they believed BNSF's witnesses or Hale. The
jury found Hale 100% at fault and judgment was entered
appeal challenges not-in-MAI Instruction 9, a one-sentence
submission given at BNSF's request, over Hale's
objection, telling jurors that BNSF's train crew
"had a right to assume that a vehicle approaching a
crossing would stop before going upon the crossing."
Arguments for Instruction 9
overcame the trial court's initial skepticism and
obtained Instruction 9 through arguments like these:
[BNSF'S COUNSEL: It's been
well settled law now for over 60 years, not only in Missouri
but around the country that train crews have a right to
assume that motorists approaching a crossing will stop.
So, the law has established an assumption which also exists,
by the way, for motor vehicles, that the motorist will abide
by the law.
Just like if a motorist is approaching a green light, they
don't have to assume that a vehicle approaching the red
light is going to run the red.
further assured the court that this instruction, although not
in MAI, was necessary in every case like this because
"it is a well settled law" and BNSF was
"entitled" to it for that reason.
BNSF urged the court that this not-in-MAI submission was
"necessary" to combat one of Hale's trial
[BNSF'S COUNSEL]: And so, to the extent that the
plaintiff is going to argue that the train crew had the
obligation to abandoned [sic] that signal for an emergency
horn sequence then [Instruction 9] to the jury
on the law that the train crew had the right to assume
that any vehicle approaching that crossing would stop is
relevant and necessary. (Our emphasis.)
9 Was Error
BNSF's assertions justified Instruction 9, which violated
MAI principles and Missouri Court ...