916 F.2d 1230 (7th Cir. 1990), 89-3402, Trevino v. Union Pacific R. Co.

Docket Nº:89-3402.
Citation:916 F.2d 1230
Party Name:Ricardo TREVINO, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY and Missouri Pacific Railroad Company, Defendants-Appellees.
Case Date:October 22, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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916 F.2d 1230 (7th Cir. 1990)

Ricardo TREVINO, Plaintiff-Appellant,


UNION PACIFIC RAILROAD COMPANY and Missouri Pacific Railroad

Company, Defendants-Appellees.

No. 89-3402.

United States Court of Appeals, Seventh Circuit

October 22, 1990

Argued Sept. 14, 1990.

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[Copyrighted Material Omitted]

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Saul I. Ruman, David M. Hamacher, William H. Tobin, Alan Faulkner, Ruman, Clements & Tobin, Hammond, Ind., for plaintiff-appellant.

Robert L. Landess, Raymond H. Groble, III, Daniel P. Hogan, Ross & Hardies, Chicago, Ill., Jack Friedlander, Calumet City, Ill., for defendants-appellees.

Before CUDAHY, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

This is a diversity suit for personal injuries, brought by Ricardo Trevino against the Union Pacific Railroad and its subsidiary, the Missouri Pacific. The subsidiary was the injurer, and why the parent was also sued is a mystery but one unnecessary to dispel in order to decide this appeal. The parties agree that Illinois law governs the substantive issues.

The complaint alleges that on February 8, 1987, the defendants "owned, operated, maintained and controlled a certain train of cars which was left standing across Joe Orr Road [in Chicago Heights, Illinois] and which then and there blocked travel" on the road; that Trevino was a passenger in an automobile being driven west on Joe Orr Road; that the automobile "came into contact with the train of cars" blocking the road, and Trevino was injured in the collision; and that the cause of the accident was the defendants' violation of their common law and statutory duties to maintain a safe crossing, and, most important, of their common law duty to warn that the crossing was occupied. The defendants, having answered the complaint, moved for judgment on the pleadings. Fed.R.Civ.P. 12(c). Their ground was Dunn v. Baltimore & Ohio R.R., 127 Ill.2d 350, 130 Ill.Dec. 409, 537 N.E.2d 738 (1989), which holds that "a train stopped at a crossing is generally held to be adequate notice and warning of its presence to any traveler who is in the exercise of ordinary care for his own safety, and the railroad is under no duty to give additional signs, signals or warnings.... The exception to the general rule is that more warnings may be required if 'special circumstances' are present. There is no fixed rule as to what constitutes special circumstances." 127 Ill.2d at 357, 130 Ill.Dec. at 412, 537 N.E.2d at 741.

Responding to the defendants' motion the plaintiff argued that the Federal Rules of Civil Procedure did not require him to plead the existence of special circumstances, but that if the court disagreed he would like permission to file an amended complaint setting forth the following additional facts, some drawn from depositions

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given in the companion case brought by the driver of the car (the plaintiff's brother) in an Illinois state court: "The railroad car that the automobile in which the plaintiff was riding collided with was a flat bed car which was dark in color. The crossing was unlit, and there were no street lights on the road approaching the crossing. The track that Joe Orr Road crossed was rusted and unused, and the driver of plaintiff's car had traveled that crossing many times before, and had never encountered a train.... [T]he cars were only on the crossing because the defendants had negligently bumped the cars through a holding fence onto the crossing." The district court granted the motion for judgment on the pleadings and denied the plaintiff permission to amend his complaint, holding that the facts that the plaintiff wanted to allege would not bring the case within the "special circumstances" exception to the "standing-car" rule. That rule, by the way, including its exception for special circumstances, is not an esoteric Illinois doctrine. It is the position of most states. Annot., Liability of Railroad for Injury Due to Road Vehicle Running Into Train or Car Standing on Highway Crossing, 84 A.L.R.2d 813 (1962). For illustrative decisions, see Clark v. Columbus & Greenville Ry., 473 So.2d 947 (Miss.1985); Davis v. Burlington Northern, Inc., 663 F.2d 1028 (10th Cir.1981); Owens v. International Paper Co., 528 F.2d 606 (5th Cir.1976); Pennsylvania R.R. v. Goldenbaum, 269 A.2d 229, 233-34 (Del.1970); Union Pacific R.R. v. Cogburn, 136 Colo. 184, 315 P.2d 209 (1957). A few states have rejected the rule. Terranova v. Southern Pacific Transportation Co., 158 Ariz. 125, 761 P.2d 1029 (Ariz.1988); McLaughlin v. Chicago, Milwaukee, St. Paul & Pacific Ry., 31 Wis.2d 378, 143 N.W.2d 32 (1966).

By failing to submit the amended complaint with his motion, the plaintiff left the district judge substantially in the dark concerning the plaintiff's ability actually to cure the deficiencies that the judge had found in the original complaint. Whether this deficiency alone justified the district judge in denying the motion is an interesting question, on which see Clayton v. White Hall School District, 778 F.2d 457, 460 (8th Cir.1985); Bownes v. City of Gary, 112 F.R.D. 424 (N.D.Ind.1986); cf. Mortell v. Mortell Co., 887 F.2d 1322, 1327 (7th Cir.1989), but not one we need decide. The original complaint was sufficient, as we shall see.

A fuller picture of the accident, at least as the plaintiff believes it occurred, emerges from the briefs and argument in this court. The accident occurred late at night in an unlit rural area. The railroad track at the point where it crosses Joe Orr Road had not been used for a decade, and was rusty and overgrown with weeds. To one side of the disused crossing a fence had been built across the track, and on the night of the accident the cars had crashed through the fence and come to rest on the abandoned crossing. The cars were not part of a live train; no live train used this track. The track was used to store cars, and for some reason the cars rolled down the track and through the fence. The flatbed car which came to rest on the disused crossing and into which the Trevino brothers' car drove was very low--even lower than a regular flatcar, though exactly how far it stood off the track no one could tell us at argument; and it was the same dark color as the surrounding vegetation. There was no gate or electrical signal at the crossing and indeed, so far as appears, no signal of any kind--not even a cross-arms signal.

There may seem to be a fatal tension between Trevino's claim that the railroads failed to maintain a safe crossing and his claim that they failed to warn him of the train that was occupying the crossing. The second claim is premised in significant part on the assertion that it was an abandoned crossing, and if a crossing is abandoned one might suppose that there would no longer be a duty to maintain it. But this is not entirely correct. Until the right of way beneath the crossing is sold or otherwise transferred, the railroad remains the owner, and like other landowners is under a common law duty to avoid using its land in such a way as to cause injury to persons lawfully on (or for that matter off)

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the land, such as persons using the public roadway at the crossing. In re Chicago, Rock Island & Pacific R.R., 756 F.2d 517, 520-22 (7th Cir.1985); Justice v. CSX Transportation, Inc., 908 F.2d 119, 123 (7th Cir.1990); Hoffman v. Vernon Township, 97 Ill.App.3d 721, 53 Ill.Dec. 135, 423 N.E.2d 519 (1981); Hynes v. New York Central R. Co., 231 N.Y. 229, 131 N.E. 898 (1921) (Cardozo, J.); Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex.1981); Prosser and Keeton on the Law of Torts Sec. 57, at pp. 387-89 (5th ed. 1984). It can fulfill this duty in a variety of ways...

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