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Hale v. Burlington Northern & Santa Fe Railway Co.

Court of Appeals of Missouri, Southern District, Fourth Division

July 31, 2017

AMBER HALE, f/k/a AMBER KOESTER, Appellant-Cross Respondent,
v.
BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Respondent-Cross Appellant.

         APPEAL FROM THE CIRCUIT COURT OF WEBSTER COUNTY Honorable Michael O. Hendrickson, Judge.

          OPINION

          DANIEL E. SCOTT, J.

         We address, again, the matter of improper not-in-MAI jury instructions.[1]

         Background

         Amber 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. 2012).[2]

         At jury 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 accordingly.

         Hale's 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."

         BNSF's Arguments for Instruction 9

         BNSF overcame the trial court's initial skepticism and obtained Instruction 9 through arguments like these:

[BNSF'S COUNSEL[3]: 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.

         BNSF 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.

         Finally, BNSF urged the court that this not-in-MAI submission was "necessary" to combat one of Hale's trial theories:

[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.)

         Instruction 9 Was Error

         None of BNSF's assertions justified Instruction 9, which violated MAI principles and Missouri Court ...


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