Tammy Deuser Elfrink v. Burlington

This consolidated appeal results from separate actions filed by two automobile passengers against the driver of the automobile and Burlington Northern Railroad Company for injuries sustained when the automobile collided with a Burlington train at a railroad crossing in Robertsville, Missouri. The cases were consolidated for trial in the circuit court of the City of St. Louis. The jury returned verdicts in favor of the passengers, Tammy Deuser Elfrink and Stanley Krumrey, III, and assessed 90% fault to Burlington and 10% fault to the driver, Charles Campbell. The trial court reduced the judgments to reflect insurance payments to the passengers and reduced Elfrink's judgment against Burlington by the 10% fault apportioned to Campbell. Burlington appeals from those judgments, asserting trial error and excessiveness of the verdict. The two passengers cross appeal, claiming that the trial court erred in reducing their judgments by the amount of the payments they received from their own insurance carriers and in reducing Elfrink's judgment against Burlington by the amount of fault apportioned to Campbell. We find the trial court erred in reducing the judgments by the amount of the insurance payments and reducing Elfrink's judgment by the amount of fault apportioned to Campbell. We modify the judgments by reinstating those amounts and affirm the judgments of the trial court as so modified. On February 16, 1985, Campbell drove Krumrey, age 15, Elfrink, age 18, and Warren Stephens 1 to a store in Robertsville, Missouri to buy food. After they finished shopping, Campbell started to drive them back to the house. Campbell stopped the car at the railroad crossing just north of the store on Montgomery Road. As the car then crossed the railroad tracks, it was struck by a westbound Burlington train. Although the car did not have a radio and the windows were open, Krumrey testified he never heard a train whistle and was not aware of the train until it was about five feet away. Elfrink also testified that she did not hear a train whistle, bell or horn.