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Railroads_crossing accident_Amtrack train_warnings and unobstructed view_no
negligence
Summary judgment was affirmed for plaintiffs in a railroad crossing case where the
evidence did not create a genuine issue of fact as to whether defendants had a duty to maintain
gates or other mechanical warnings. The trial judge found as a matter of law that the conditions
existing at the crossing did not render it peculiarly and unusually hazardous; while plaintiffs
point to the surprise of a train approaching at between 65 and 70 miles per hour when other
trains approached at less than 10 miles per hour, the variable speeds of other trains is not a
condition existing at the crossing at the time a motorist must determine whether a train is
approaching. Defendants' duty is to warn a motorist of an approaching railroad crossing and
train, and that duty is met when a motorist stopped safely behind a stop sign at the crossing has
an unobstructed view of an approaching train.
Judge HUDSON concurring in part and dissenting in part.
Mast, Schulz, Mast, Mills, Stem, & Johnson P.A., by Charles D.
Mast, George B. Mast, and David F. Mills, and Ward & Smith,
P.A., by W.L. Allen, III, and E. Bradley Evans, for
plaintiffs-appellants.
Millberg, Gordon & Stewart, P.L.L.C., by Frank J. Gordon, and
Bode, Call & Stroupe, L.L.P., by Odes L. Stroupe, Jr., for
defendants-appellees.
Robert E. Ruegger for third-party defendant Amelia Torres.
Cranfill Sumner & Hartzog, L.L.P., by Patrick H. Flannagan and
George L. Simpson, IV, for third-party defendant Family Home
& Garden, Walter B. Horne and Janet G. Horne.
North Carolina Academy of Trial Lawyers, by John J. Korzen,
amicus curiae.
ELMORE, Judge.
This action arises out of a collision between an Amtrak train
and a motor vehicle at a railroad grade crossing located off of
Hillsborough Street between Raleigh and Cary. The crossing runs
over two main line railroad tracks and provides access to two
businesses located on the other side of the tracks. At
approximately 4:34 p.m. on the afternoon of 25 April 1998, Victoria
Torres was driving a van with her two children as passengers, Henry
and Jazmine Loredo, when she attempted to cross over the tracks and
was struck by the approaching train. Ms. Torres and Henry were
killed by the collision, and Jazmine was severely injured.
The crossing was controlled and maintained by defendants CSX
Transportation, Inc. (CSX) and Norfolk Southern Corporation and
Norfolk Southern Railway Company (Norfolk Southern).
(See footnote 1)
A white stop
bar was painted on the road and a stop sign and crossbucks sign
were in place at the crossing where the van was traveling south to
north. The Amtrak train was traveling east to west at a speed of
approximately 68 miles per hour when it collided with the van's
right side. Defendants' evidence showed that the train blew itshorn for 21 seconds prior to the collision and that the driver's
side window on the motorist's vehicle was rolled down at the time
of the collision.
Plaintiffs Reuben Loredo, J. Frank Wood, Jr., Guardian ad
litem of Jazmine Loredo, and Thomas Berkau, Administrator of the
Estate of Henry Loredo, filed two separate negligence actions, one
in Wake County and one in Johnston County Superior Court, on 22
February 2000. Plaintiff Amelia Torres, Administratrix of the
Estate of Victoria Torres, filed a negligence action in Wake County
Superior Court on 24 April 2000. On 20 December 2002, Judge Jack
W. Jenkins granted summary judgment against plaintiffs in one of
the actions on their claim for punitive damages. The three actions
were consolidated on 23 April 2003, and the parties have stipulated
that all pleadings, motions, discovery and orders entered into in
one action are binding in the other two actions. In an order
entered 26 June 2003, the trial court granted summary judgment to
defendants as to all of plaintiffs' claims.
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. §1A-1, Rule
56(c)(2003); DiOrio v. Penny, 331 N.C. 726, 728, 417 S.E.2d 457,
459 (1992). The record is reviewed in the light most favorable to
the non-movant, and all inferences are drawn against the movant.
Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). The trial court does not resolve issues of fact and must deny a
motion for summary judgment if there is a genuine issue as to any
material fact. Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d
666, 668 (1980).
In North Carolina, railroad companies have a duty “'to give to
users of the highway warning, appropriate to the location and
circumstances, that a railroad crossing lies ahead.'” Collins v.
CSX Transportation, 114 N.C. App. 14, 18, 441 S.E.2d 150, 152
(quoting Cox v. Gallamore, 267 N.C. 537, 541, 148 S.E.2d 616, 619
(1966)), disc. review denied, 336 N.C. 603, 447 S.E.2d 388 (1994).
Automatic warning devices, such as gates or flashing lights, are
required only at crossings “'so dangerous that prudent persons
cannot use them with safety unless extraordinary protective means
are used.'” Price v. Railroad, 274 N.C. 32, 46, 161 S.E.2d 590,
600 (1968) (internal quotation omitted). Thus, a railroad company
is negligent in failing to maintain an automatic alarm only when
the crossing is more than ordinarily hazardous
(See footnote 2)
, such as where the
view at the crossing is obstructed. Id. This is so because “[a]
railroad company is not an insurer of the safety of travelers, and
it is not required to maintain a foolproof crossing or a crossing
where no injury is possible.” Id. at 39, 161 S.E.2d at 595.
In the instant case, the trial judge found as a matter of law
that the conditions existing at the crossing did not render it
“peculiarly and unusually hazardous.” In considering the motionfor summary judgment, the trial court reviewed extensive deposition
testimony by experts for both parties. Plaintiffs' own expert,
Archie Burnham, testified that the sight distance to the east from
the stop bar was at least 1500 feet and that this sight distance
was satisfactory. Also, defendants presented as exhibits two
enlarged photographs of the crossing to illustrate the sight
distance available on a clear day. Exhibit 2, which is referenced
in the court's order, shows the view from a vehicle at the stop
sign of an approaching train 1800 feet from where the collision
occurred. The trial judge concluded as follows:
According to the plaintiffs' own evidence and
the undisputed details of Exhibit 2 described
above, there is no genuine issue of material
fact in this case as to the available sight
distance at this crossing from a safe place
(behind the stop bar and stop sign) on the day
of the accident. The photographs and the
referenced testimony from the plaintiffs' own
retained expert witness establish that there
was a safe point from which the plaintiff
could have looked for a train and traveled
over this railroad crossing safely. Thus, as a
matter of law, this Court finds that this
crossing was not “peculiarly and unusually
hazardous[.]”
Plaintiffs contend that there were genuine issues of material
fact in dispute and that the issue of whether the crossing was
peculiarly and unusually hazardous should have been submitted to
the jury. Plaintiffs argue that the trial court erred in
considering only sight distance, rather than all the conditions at
the crossing. Specifically, plaintiffs point out that the surprise
of a train approaching at between 65 and 70 miles per hour whenother trains approach at less than 10 miles per hour may create an
extraordinarily dangerous crossing.
Our Supreme Court has stated that the inquiry into whether a
crossing is peculiarly dangerous focuses on “the conditions
existing at or about the crossing.” Caldwell v. R.R., 218 N.C. 63,
70, 10 S.E.2d 680, 684 (1940). The Court described certain
conditions that would show a crossing presents a peculiar danger:
that it is a thickly populated portion of a
town or city; or, that the view of the track
is obstructed either by the company itself or
by other objects proper in themselves; or,
that the crossing is a much traveled one and
the noise of approaching trains is rendered
indistinct and the ordinary signals difficult
to be heard by reason of bustle and confusion
incident to railway or other business; or, by
reason of some such like cause.
Id. at 69, 10 S.E.2d at 683 (quoting Batchelor v. R.R., 196 N.C.
84, 87, 144 S.E. 542, 543 (1928)). Thus, plaintiffs are correct in
that the motorist's view of the tracks is not the only condition a
factfinder may consider in determining whether a crossing is more
than ordinarily hazardous. However, the variable speeds of other
trains, e.g., a freight train as compared to a passenger train, is
not a condition existing at the crossing at the time when a
motorist must discern whether a train is approaching. Indeed, no
case in North Carolina has recognized varying speeds of different
trains as a factor bearing upon the degree of danger presented by
conditions at a crossing. In contrast, our Supreme Court has
consistently held obstructed view to be a material factor in
analyzing the reciprocal duties of the railroad and a motorist at
a grade crossing. See, e.g., Johnson v. R.R., 257 N.C. 712, 127S.E.2d 521 (1962) (nonsuit improper where evidence showed box cars
partially obstructed motorist's view down tracks); Neal v. Booth,
287 N.C. 237, 214 S.E.2d 36 (1975) (directed verdict improper where
motorist's view obstructed by a building and railroad cars);
Mansfield v. Anderson, 299 N.C. 662, 264 S.E.2d 51 (1980) (jury
question where view severely obstructed by vegetation until
motorist came within few feet of tracks such that motorist did not
have safe position from which to look and listen).
Here, the evidence presented to the trial court established
that the crossing was marked by both a stop sign and stop bar
indicating a safe position to observe approaching trains, and there
was an unobstructed view of more than 1,500 feet down the tracks
for a motorist stopped behind either the stop sign or stop bar.
Even viewed in the light most favorable to plaintiffs, there was no
evidence placing the sight distance and unobstructed view into
dispute. The record clearly indicates that the trial judge
considered the evidence of sight distance at both 16 feet (at stop
bar) and 21 feet (at stop sign) from the near rail. Plaintiffs
assert that 24 feet from the near rail is also a reasonable point
from which to measure the sight distance because the stop sign is
20 feet from the near rail and a driver's head is at least 4 feet
behind the front of the vehicle. However, plaintiffs offer no
evidence that the sight distance for a motorist stopped 24 feet
from the rail is limited and thus are speculating that the sight
distance from this point would be inadequate. In sum, plaintiffs
failed to present affirmative evidence that the sight distance frombehind either the stop bar or stop sign was limited or obstructed
to any extent. Cf. Parchment v. Garner, 135 N.C. App. 312, 314,
520 S.E.2d 100, 102 (1999) (plaintiff's expert submitted report
documenting severe limitations on sight distance caused by trees
and vegetation), disc. review denied, 351 N.C. 359, 542 S.E.2d 216
(2000); Collins, 114 N.C. App. at 16-17, 441 S.E.2d at 155
(evidence that motorist's view partially obstructed by foliage near
the tracks); Dixon v. CSX Transp., Inc., 990 F.2d 1440, 1451 (ample
evidence that obstructed view prevented motorist from being able to
look and listen for approaching train without stopping vehicle
within 3 or 4 feet of tracks), cert. denied, 510 U.S. 915, 126 L.
Ed. 2d 252 (1993). It is undisputed that a train 1500 feet away
from the crossing is visible from a safe point behind either the
stop bar or stop sign. The unobstructed view at the crossing
permits a motorist to safely observe whether a train is approaching
without using extraordinary protective means. Defendants' duty
under our common law is to warn a motorist of an approaching
railroad crossing and train, and that duty is met when a motorist
stopped safely behind a stop sign at the crossing has an
unobstructed view of an approaching train. See Price, 274 N.C. at
46, 161 S.E.2d at 600.
For the foregoing reasons, we hold that the undisputed
evidence in the record before the trial court, considered in the
light most favorable to plaintiffs, creates no genuine issue of
material fact as to whether defendants had a duty to maintain gates
or other mechanical warning and the grant of summary judgment mustbe affirmed. We do not reach plaintiffs' assignment of error
challenging the court's ruling on the punitive damages claim.
Affirmed.
Chief Judge MARTIN concurs.
Judge HUDSON concurs in part and dissents in part.
HUDSON, Judge, concurring in part and dissenting in part.
The majority here affirms the grant of summary judgment to the
defendants/third-party plaintiffs (the Railroad defendants). I
agree with much of the majority's analysis of the applicable legal
standard, but I believe that the forecast of evidence raises
genuine issues of material fact as to whether the crossing was
“more than ordinarily hazardous.” Thus, I respectfully dissent.
As the majority notes, “[i]n North Carolina, railroad
companies have a duty 'to give to users of the highway warning,
appropriate to the location and circumstances, that a railroad
crossing lies ahead.'” Collins v. CSX Transportation, 114 N.C.
App. 14, 18, 441 S.E.2d 150, 152 (1994)(other citations omitted).
I agree with the majority that “a railroad company is negligent in
failing to maintain an automatic [warning device such as gates or
lights] only when the crossing is more than ordinarily hazardous.”
(citing Price v. Seaboard R.R., 274 N.C. 32, 46, 161 S.E.2d 590,
600 (1968)).
The parties presented a forecast of evidence in several forms,
including numerous depositions, sworn answers to discovery,
affidavits and photographs, inter alia. The majority makes littlemention of plaintiff's forecast of evidence, which includes the
expert depositions of Anand David Kashbekar, who visited the
crossing and created a computer model to evaluate the crossing.
Below are some excerpts from his testimony that, in my view, create
an issue of fact as to whether the conditions at the crossing are
more than ordinarily hazardous:
A: I was taking some measurements of the track
and-_-and the train came out of the_-the east
early in the morning.
Q: Okay. What did you observe about it?
A: It caught me by surprise a little bit, I
heard_--I was on the tracks, I heard the
whistle and at that time of the morning if you
look to the east that time of year you're
looking straight into the sun . . . . It
wasn't but a few seconds later that the train
crossed over that crossing.
A: I've been out there other times either
taking photographs, measurements and I've seen
not a passenger train, but the freight trains
go by there at probably as little as three or
four miles per hour, walking pace. So, you
know, what I gather from that is, is the
crossing is used by trains at various rates of
speed.
Q: Any of those observations about the train
movements that day have anything to do with
your opinions or your computer model in this
case?
A: No. Well certainly it leads me_--it makes
me understand how this type of accident can
happen. If a person is conditioned to seeing
a train come there at a few miles per hour and
then all of a sudden they are going across the
crossing, you got one approaching at almost
seventy miles an hour, it's a huge difference
to contend with. Early in the morning
obviously it's almost_--on the days I was out
there, it was virtually impossible to see atrain coming from the East until it's right up
on top of you . . . . [A] driver may think
that he or she has a reasonable opportunity to
cross the crossing and starts to do so and the
next thing he or she knows is a train is right
up on them.
A: Assuming the train is going from east to
west, she's approaching from the south,
heading north. If you're looking over toward
the east, you've got a hillside there, you've
got crossbucks and other obstructions and---
and it's clear to me that at that approach
rate [of the train] it's difficult to reliably
cross that crossing in a safe manner.
A: The only thing I'll tell you, the day I was
out there I heard a train whistle. I looked
both directions and I couldn't see a train and
I didn't bother to get off the tracks until
the tracks started rumbling.
Q: Okay. Because the sun was in your eyes?
A: I didn't see the train and-_-and you can
hear something-_-I was out of my car on the
tracks and to the west I could see there was
no train visible to me. To the east I could
see a fair amount of track, you know, a couple
hundred feet in front of me and then I was
looking into the sun.
A: Yeah, and also you've got a dip in those
tracks that start to-_-to lower the tracks.
The tracks and the bed actually-_-a section of
them will disappear.
A: I believe that from this position if you
went down the tracks two thousand feet with---
with an object that was the size of a train
you could tell that there was something down
there. Whether or not you could tell whether
it was a train, a truck crossing the other
crossing or trees or what-_-
Q: Right.
A: -_-is a different story.
Q: How far away-_-suppose you were standing on
flat railroad tracks, that are flat for three
miles, looking down the tracks, how far away
can you see a train coming and recognize that
it's a train, looking straight at it?
A: I-_-I think there are a lot of variables.
It depends on the person, it depends on where
the sun is.
A:[Y]ou got a double set of rails and it's a
particularly hazardous crossing for that
reason because you got to contend with two
sets of rails and-_-and here is a situation
where somebody may get onto the crossing and a
train that's going at a hundred feet per
second comes up on her and she's faced with
the decision as to whether or not to stop or
try to accelerate to get out of the way and
that was the _ the whole intention.
Q: Do you agree that a motorist in North
Carolina should look and listen for trains
from a-_-a point at a crossing where looking
and listening will be of benefit to them?
A: To the best of their knowledge, yes. But I
don't think it's reasonable to expect the
average motorist to be able to determine
always what that point is.
Q: Okay
.
A: They-_-they have no idea what the train
speed is. Most of them don't convert miles
per hour to feet per second in their head like
we have been doing and that-_-but that's the
reason I think this crossing is particularly
hazardous.
Taken in the light most favorable to the plaintiff, these excerpts
alone create an issue of fact as to whether the crossing was more
than ordinarily hazardous.
However, plaintiff forecast much more evidence than this,
tending to show that the circumstances affecting a driver at the
crossing could give rise to an unusually hazardous situation. For
example, Ernest F. Mallard, a long-time State Department of
Transportation Signals Engineer, identified many potential problems
facing a motorist at the crossing, including the high volume and
speed of train traffic, the double tracks, the proximity to busy
Hillsborough Street, the distraction from irregular width and
uneven surfaces of Bashford Road, and possible problems seeing down
the tracks. In addition to these factors, the sun, dip in the
tracks, obstructions, and the potential surprise created by the
wide variation in train speeds, noted by Mr. Kashbekar, all could
affect a reasonable motorist's ability to judge and cross safely at
a given time. Other evidence indicated that there had been at
least five previous collisions at this crossing, and James
McCloskey of Norfolk and Southern Railway acknowledged that “we
knew about dangerous crossings, for example, this crossing.”
Thus, I believe that all of the evidence forecast creates
issues of fact regarding the conditions under which trains might be
viewed, as well as regarding other matters affecting the
potentially hazardous nature of the crossing. This testimony, as
well as other evidence, also raises genuine issues about otheraspects of the conditions that might have existed on the morning of
the collision, such that these issues should be for the jury.
I agree with the majority that a motorist's view of the tracks
is a material factor in determining whether a crossing is so
hazardous that it triggers duties on the part of the railroad.
However, in light of the forecast of evidence here, I do not agree
that it is “undisputed that a train 1500 feet away from the
crossing is visible from a safe point,” or that sight distance is
the only factor to be considered, as the majority implies. In
addition, the majority's statements that “the unobstructed view at
the crossing permits a motorist to safely observe whether a train
is approaching without using extraordinary protective means,” and
that “the variable speeds of other trains . . . is not a condition
existing at the crossing at the time when a motorist must discern
whether a train is approaching,” are essentially findings of fact,
which should properly be for the jury. The actual issue for the
jury, moreover, involves not whether trains of variable speeds were
passing at the time of the incident, but rather, whether the
history of variable speeds created a peculiarly hazardous condition
for the plaintiff's decedent at this crossing. It is well-
established that the role of this Court on appeal is not to resolve
such disputed issues of fact.
The majority cites several cases in support of its conclusion,
but in at least two of those cases, the appeal turned on whether
there was evidence of gross negligence, and in Collins the issue of
liability for the crossing was submitted to the jury. SeeParchment v. Garner, 135 N.C. App. 312, 520 S.E.2d 100 (1999);
Collins v. CSX Transportation, 114 N.C. 14, 441 S.E.2d 150 (1994).
Similarly, viewing the evidence in the light most favorable to the
plaintiff, I believe that we should reverse and remand, so that the
case may be tried to the jury.
Accordingly, I would reverse the grant of summary judgment
and remand for trial.
Footnote: 1
Footnote: 2
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