Railroads_crossing accident_going around crossing gate_contributory negligence
The trial court erred by granting defendant's motion for dismissal under N.C.G.S. § 1A-1,
Rule 12(b)(6) based upon contributory negligence in an action arising from a railroad crossing
accident. A violation of N.C.G.S. § 20-142.1 is not negligence per se, and the complaint left open
the question of whether the decedent, a fireman returning a fire truck to the station, exercised due
care in deciding to drive around a crossbar given his knowledge of defendant's customary
practice of stopping trains in such a way that crossing gates remained down even though no
hazard was present, the obstruction of his view, and his need to return to the fire station.
Gill & Tobias, L.L.P., by Douglas R. Gill, for plaintiff-
appellant.
Millberg, Gordon & Stewart, P.L.L.C., by John C. Millberg and
Dena White Waters, for defendants-appellees.
GEER, Judge.
In this appeal, appellant Dawn Sharp asks us to reverse the
trial court's order granting defendants' motion to dismiss.
Defendants have contended that dismissal is appropriate because the
complaint establishes contributory negligence as a matter of law.
Applying the standards governing a motion to dismiss under Rule
12(b)(6) of the North Carolina Rules of Civil Procedure, we hold
that the allegations of the complaint, taken as true, do not
necessarily dictate a finding of contributory negligence and,
therefore, we reverse. Plaintiff's complaint alleges the following facts. On 17
March 2000, David Sharp was driving a fire truck owned by the City
of Fayetteville Fire Department back to his fire station. Under
Fire Department policies, Sharp _ who was alone in the truck _ was
required to return the truck to the fire station directly upon
conclusion of a call.
As Sharp approached a railroad crossing on Cumberland Street,
a locomotive owned by defendant CSX crossed Cumberland Street
causing the crossing gate to descend across the roadway. The
locomotive came to a stop with the last car sitting just north of
the crossing. Because of where the train stopped, the crossing
gate remained in a lowered position. In addition, the train
obscured Sharp's view of the tracks to the north and the train
acted as a barrier against any sound made by a train approaching
from the north.
According to the complaint, defendants have a widely known
practice in Fayetteville of stopping their trains for extended
periods of time in close proximity to crossing gates thereby
causing the gates to remain lowered. This problem has occurred
frequently and is widely known to residents and travelers in
Fayetteville, including Sharp.
The complaint alleges that Sharp waited for an extended period
of time to see if the train would move forward and allow the
crossing gate to rise. Sharp believed that the crossing gate was
remaining lowered only because of the CSX train. As Sharp was
alone in the fire truck, he was prohibited by Fire Department
policies from operating the truck in reverse. Since he was unableto back up the truck, Sharp decided to cross the tracks in order to
return promptly and directly to the fire station. As Sharp began
crossing the tracks, an Amtrak train, whose approach had been
obscured by the CSX train, struck the fire truck, killing Sharp.
Sharp's wife, Dawn Sharp, filed suit on 15 March 2002
asserting a claim for negligence against defendants. Pursuant to
Rule 12(b)(6) of the North Carolina Rules of Civil Procedure,
defendants moved to dismiss on the grounds that the complaint
established contributory negligence as a matter of law. Plaintiff
appeals from the trial court's order granting that motion.
When a party files a motion to dismiss pursuant to Rule
12(b)(6), the question for the court is whether the allegations of
the complaint, treated as true, are sufficient to state a claim
upon which relief may be granted under some legal theory, whether
properly labeled or not. Grant Constr. Co. v. McRae, 146 N.C. App.
370, 373, 553 S.E.2d 89, 91 (2001). The court must construe the
complaint liberally and "should not dismiss the complaint unless it
appears beyond a doubt that the plaintiff could not prove any set
of facts to support his claim which would entitle him to relief."
Block v. County of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d
415, 419 (2000).
Dismissal under Rule 12(b)(6) is appropriate in three
situations: (1) when it is apparent from the face of the complaint
that no law supports plaintiff's claim; (2) when review of the
complaint's allegations reveals the absence of a fact necessary to
state a claim for relief; or (3) when the complaint alleges some
fact that necessarily defeats plaintiff's claim. Johnson v.Bollinger, 86 N.C. App. 1, 4, 356 S.E.2d 378, 380 (1987). A
complaint is considered sufficient under Rule 12(b)(6) when no
"insurmountable bar" to recovery appears on the face of the
complaint and when the complaint's allegations give adequate notice
of the nature and extent of plaintiff's claim. Id.
In this case, defendants argue that Sharp's violation of N.C.
Gen. Stat. § 20-142.1 (2001) and the common law duty to yield the
right of way to approaching trains constitutes contributory
negligence as a matter of law. Because this case is at the motion
to dismiss stage, we disagree.
While N.C. Gen. Stat. § 20-142.1 prohibits any person from
driving around or under a crossing gate, it also expressly provides
that a violation of the statute is not negligence per se.
Specifically, the statute states:
(b) No person shall drive any vehicle
through, around, or under any crossing gate or
barrier at a railroad crossing while the gate
or barrier is closed or is being opened or
closed, nor shall any pedestrian pass through,
around, over, or under any crossing gate or
barrier at a railroad crossing while the gate
or barrier is closed or is being opened or
closed.
. . . .
(d) Any person who violates any
provisions of this section shall be guilty of
an infraction and punished in accordance with
G.S. 20-176. Violation of this section shall
not constitute negligence per se.
N.C. Gen. Stat. § 20-142.1(b), (d) (emphasis added).
Defendants' argument _ that allegations in a complaint
demonstrating a violation of this statute establish, without more,
contributory negligence as a matter of law _ is inconsistent with
the General Assembly's mandate that the violation "shall notconstitute negligence per se." Id. As our Supreme Court has
explained, when a statutory violation "is declared not to be
negligence per se, the common law rule of ordinary care applies,
and a violation is only evidence to be considered with other facts
and circumstances in determining whether the violator used due
care." Cowan v. Murrows Transfer, Inc., 262 N.C. 550, 554, 138
S.E.2d 228, 231 (1964). The Court explained further: "The
distinction, between a violation of a statute . . . which is
negligence per se and a violation which is not, is one of duty. In
the former the duty is to obey the statute, in the latter the duty
is due care under the circumstances." Id.
As a result, the issue with respect to defendant's claim of
contributory negligence, is whether Mr. Sharp exercised "due care
under the circumstances." Id. The fact that Mr. Sharp bypassed
the crossing gate in violation of the statute is evidence that may
be considered, together with all of the other facts and
circumstances, in deciding whether Mr. Sharp breached his common
law duty of exercising ordinary care. Kinney v. Goley, 4 N.C. App.
325, 332, 167 S.E.2d 97, 102 (1969).
Similarly, the fact, standing alone, that Mr. Sharp did not
yield the right of way to the oncoming Amtrak train does not
establish his negligence as a matter of law at the motion to
dismiss stage. Whenever a train and a car collide at a crossing,
the car has failed to yield the right of way to the train. Yet,
the driver is not always held to be contributorily negligent.
Instead, the courts look to all of the facts and circumstances:
"Our courts have encountered considerable difficulty in enunciatingbright-line rules to govern liability in train-automobile grade
crossing accidents. Consequently, each case is evaluated on its
own facts." Parchment v. Garner, 135 N.C. App. 312, 315, 520
S.E.2d 100, 102 (1999), disc. review denied, 351 N.C. 359, 542
S.E.2d 216 (2000). Significantly, none of the cases cited by
defendants involves the granting of a motion to dismiss a
complaint.
A court should dismiss a complaint based on contributory
negligence only when the allegations of the complaint taken as true
"show[] negligence on [the plaintiff's] part proximately
contributing to his injury, so clearly that no other conclusion can
be reasonably drawn therefrom." Ramey v. Southern Ry. Co., 262
N.C. 230, 234, 136 S.E.2d 638, 641 (1964). Given the allegations
of the complaint in this case, Mr. Sharp's contributory negligence
is not so clear that "no other conclusion can be reasonably drawn
therefrom." Id.
The complaint alleges that defendant had a practice of
stopping trains in such a way that crossing gates remained down
even though no hazard was present. Before crossing the tracks, Mr.
Sharp stopped and waited "an extended period of time to see if the
train would move forward and allow the crossing gates to rise."
Further, according to the complaint, defendant's train blocked Mr.
Sharp's ability to see and hear any train coming from the north.
Plaintiff also argues that Mr. Sharp, since he was operating
a fire truck, was exempt from the statutory requirement concerning
railroad crossings. This Court has held:
Our research reveals that a majority of
jurisdictions by statutes or ordinances exemptemergency vehicles (such as police cars,
ambulances and fire department apparatus) from
strict compliance with traffic regulations.
However, the allowance of these special
privileges (which include traveling through a
red traffic light and exceeding speed limits)
has been held generally not to relieve the
operator of the emergency vehicle from the
exercise of ordinary, reasonable care
commensurate with the circumstances.
City of Winston-Salem v. Rice, 16 N.C. App. 294, 298, 192 S.E.2d 9,
11 (reversing trial court's order finding contributory negligence
by the driver of a fire truck as a matter of law), cert. denied,
282 N.C. 425, 192 S.E.2d 835 (1972). In other words, the fact
that Mr. Sharp needed to return a fire truck to the fire station is
another factor that may be considered in deciding whether he used
due care.
The complaint thus leaves open the question whether Mr. Sharp
exercised due care in deciding to drive around the crossbar given
his knowledge of defendant's customary practice, the obstruction of
his view, and his need to return to the fire station. The
allegations in plaintiff's complaint do not present an
insurmountable bar to recovery. See Miller v. Davis, 71 N.C. App.
200, 203, 321 S.E.2d 470, 471-72 (1984) (refusing to find
contributory negligence as a matter of law when plaintiff presented
evidence that the driver did not see the train coming because he
was looking the other way while trying to see around an
obstruction), disc. review denied, 313 N.C. 331, 327 S.E.2d 892
(1985). The trial court therefore erred in granting defendants'
motion to dismiss.
Reversed. Judges MARTIN and HUNTER concur.
*** Converted from WordPerfect ***