Jewell v. CSX Transportation, Inc.

BELL, District Judge.

Plaintiffs-Appellants appeal from a judgment of no cause of action in this personal injury diversity action arising out of a collision between a pickup truck and a train.

I.

The accident that gave rise to this case occurred in a rural area of Henderson County, Kentucky, where the Anthouston-Frog Island Road crosses the CSX Transportation, Inc., (hereinafter "CSX"), railroad grade crossing. The Anthouston-Frog Island Road crosses the tracks at a 45-47 degree angle. As the road approaches the crossing it narrows and goes up an incline to cross the elevated tracks. On the date of the collision the only warning devices were standard cross bucks. There were no lights, bells, or mechanical gates. At about 6:00 p.m. on March 11, 1990, Greg Jewell was driving his pickup truck west on Anthouston-Frog Island Road with his wife Sheila Jewell, and his six-year old daughter Brittney Jewell. As his truck crossed the tracks it was struck by a southbound CSX train which approached the crossing from Greg Jewell's right. All three passengers were thrown from the truck. Greg Jewell was killed and his wife and daughter were injured.

Sheila Jewell, as administratrix of the estate of Gregory Jewell and on her own behalf, and Stacy Lemon, as guardian of Brittney and on her own behalf, filed suit against CSX. They alleged that CSX was negligent in failing to sound a warning as the train approached the crossing, that the train crew failed to exercise ordinary care in the operation of the train and that the subject crossing was extra-hazardous.

. . . The case was tried before a jury from July 25, 1994 to August 4, 1994. At the close of Appellants' evidence the district court issued a directed verdict in favor of CSX on the issue of the extra-hazardous crossing. The jury returned a verdict in favor of CSX.

II.

Appellants contend that the trial court erred in directing a verdict in favor of CSX on the Plaintiffs' claim that the subject crossing was extra-hazardous.

We review a district court's ruling on a motion for directed verdict de novo. Bills v. Aseltine. . . . In other words, we, like the district court, must determine whether there was sufficient evidence presented to raise a material issue of fact for the jury. Monette v. AM-7-7 Baking Company. . . . A directed verdict is proper only where no reasonable juror could find for the nonmoving party. Bills. . . .

Because this is a diversity case the substantive law on the issue of an extra-hazardous crossing is governed by Kentucky law. See Davis v. Mutual Life Insurance Company. . . . Under Kentucky law, a railroad is not required to have gates, lights, or other warnings at a crossing unless there is a statute imposing such an obligation, or the circumstances are such that ordinary prudence and foresight would anticipate the need for additional warnings, as in the case of an extra-hazardous crossing. Wright v. Illinois Central Gulf Railroad Company. . . . The rationale of the extra-hazardous crossing doctrine is that there are some circumstances under which the ordinarily prudent person would not be sufficiently alerted by the usual and statutory signals and would not appreciate the degree of danger involved unless given greater warning of the actual approach of a train. Hargadon v. Louisville & Nashville Railroad Company. . . .

Appellants argued at trial that the Anthouston-Frog Island Road crossing presented just such a circumstance, and that CSX was negligent in failing to provide additional warnings or signals at the crossing. They introduced the testimony of two experts who opined that the crossing was extra-hazardous because the railroad crossed the road at an acute angle, thus requiring a driver to look more than 90 degrees to his right to see an approaching train from the north. Compounding the difficulties presented by the acute angle, the experts noted the glare from the setting sun, the blind spot in the vehicle, and the natural tendency of such factors as the narrow crossing, the inability to see oncoming vehicle traffic due to the elevated railroad bed, and the ruts in the road to distract drivers from paying attention to approaching train traffic.

The district court determined that the crossing was not extra-hazardous as a matter of law because there were no physical obstructions to Greg Jewell's ability to see and hear.

Appellants contend that the district court improperly determined that Kentucky law required "actual physical obstructions" to support an extra-hazardous crossing instruction, and that the testimony of their expert witnesses was sufficient to create a question of fact as to the extra-hazardous nature of the crossing.

The latest ruling from the Kentucky Supreme Court on the principle of extra-hazardous crossings is found in Wright...:

An extra-hazardous crossing is one that obscures the view of the traveling public approaching a crossing. This may consist of cuts, embankments, vegetation or other obstacles that obstruct the view of the traveling public in close proximity to the crossing.

In Hargadon, . . . the state's highest court upheld a directed verdict in favor of the railroad at the close of the plaintiff's case. The court held that the extra-hazardous crossing principle does not apply unless there is "a real and substantial obstruction to sight or hearing." . . . Despite the fact that the road and the tracks met at an acute angle that required the driver to look more than 90 degrees to his right to see the tracks, the court found an absence of any real obstructions to the sight or hearing of a driver willing to make the slightest effort to see and hear. . . .

In Citizens State Bank v. Seaboard System Railroad, . . . the court held that a large warehouse at the intersection of the road and the railroad tracks presented a "real and substantial obstruction" of sight of oncoming trains. . . .

The district court was correct in its determination that the test for an extra-hazardous crossing under Kentucky law is whether there is a real and substantial obstruction to sight or hearing. The district court was also correct in its determination that this test requires an actual physical inability to see or hear, and not merely such human factors as a disinclination to look for a train due to the angle of the intersection, distractions or diversions.

In this case there was no structure or object that would have impaired Greg Jewell's view of the train. Appellants' expert, Dr. Harry Snyder, testified that if one stands in the road where the driver's eye would be, a train would be visible from the last 2,200 feet to the crossing. He testified that "there is nothing in the way. There is nothing physically between the road and the train to get in the way except the vehicle that one might be driving in." Moreover, the road is straight for the last 1300 feet as it approaches the crossing and the train would have been visible for this entire distance. There was evidence that given the speeds of the truck and the train, Greg Jewell would have had ample time from his first opportunity to see the train to stop the truck. There is no question of fact that there was no physical obstruction at the crossing that prevented Greg Jewell from seeing the train.

The jury should not be permitted to decide whether the railroad should or could have taken other precautions if the evidence does not support an extra-hazardous crossing instruction. In Illinois Central Railroad Company v. House, . . . the court held that it was error to give the extra-hazardous crossing instruction and reversed the judgment for Plaintiffs where the photographs conclusively demonstrated that the trees, brush and undergrowth did not obstruct the view so as to obscure the approach of the train. . . .

This Court concludes that because there were no physical obstructions to Greg Jewell's view of the train, the district court correctly concluded that there was not sufficient evidence to support an extra-hazardous crossing instruction.

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IV.

Appellants contend that the jury verdict was not supported by substantial evidence because the totality of the evidence conclusively points to the fact that the train whistle was not blown. Appellants contend that no reasonable jury could have determined that the train sounded its whistle prior to the collision.

In support of this argument Appellants argue that although the conductor of the CSX train testified that the horn was sounded continuously through the crossing even after the collision occurred, every non-railroad employee witness who heard the collision positively testified that there was no whistle following the collision. Appellants contend that this positive testimony completely impeaches the testimony of the train crew.

We accord "substantial deference" to jury verdicts. Davis. . . . In reviewing an appeal based on insufficiency of the evidence, "we may neither weigh the evidence, pass on the credibility of the witnesses, nor substitute our judgment for that of the jury." . . . Instead, we must view the evidence in the light most favorable to the appellee, drawing all reasonable inferences in its favor. . . .

Because we do not weigh the evidence or pass on the credibility of the witnesses, the testimony of the conductor was sufficient to create a question of fact for the jury. Moreover, Appellants overstate the importance of the evidence of whether the whistle was blown after the collision. The issue for purposes of determining railroad negligence is whether the whistle was sounded prior to the collision. All of the train crew and one other witness testified positively that the whistle was sounded. Although seven witnesses testified they did not recall hearing the whistle before the collision, all of them testified on cross-examination that they could not say positively that the whistle was not sounded before the collision.

There was substantial evidence from which a jury could reasonably conclude that the whistle was sounded prior to the accident.

For the foregoing reasons we AFFIRM the judgment of the district court in its entirety.