Anderson v. Union Pacific R. Co., 86-904

• Decision Date: 29 July 1988
• Docket Number: No. 86-904,86-904
• Citation: 426 N.W.2d 518,229 Neb. 321
• Parties: Arthur J. and Diane K. ANDERSON, Appellees, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 518

426 N.W.2d 518

229 Neb. 321

Arthur J. and Diane K. ANDERSON, Appellees, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 86-904.

Supreme Court of Nebraska.

July 29, 1988.

Syllabus by the Court

1. Railroads: Motor Vehicles: Negligence. A traveler on a highway, when approaching a railroad crossing, has a duty to look and listen for the approach of trains. The traveler must look, where by looking he or she could see, and listen, where by listening he or she could hear, and if the traveler fails without a reasonable excuse to exercise such precautions, then the traveler is guilty of contributory negligence more than slight, as a matter of law, and no recovery can be had for damages resulting from a collision with a passing train.

2. Railroads: Motor Vehicles: Negligence. When a motorist approaches a railroad crossing, with which the motorist 3. Railroads: Motor Vehicles: Negligence. At a railroad crossing obstructed to an approaching motorist's view, the approaching motorist has no absolute duty to stop before traveling on the crossing, but such duty to stop exists where a reasonably prudent person in the exercise of ordinary care would have considered a stop necessary under the circumstances.

is acquainted or conversant but for which the motorist's view is restricted or obstructed, the motorist has the duty to look and listen at a time and place where looking and listening will be effective to prevent an accident, and failure to observe this rule, without reasonable excuse for noncompliance, may be negligence.

4. Jury Instructions. Notwithstanding absence of a request for a specific instruction, a trial court must instruct a jury on material or relevant issues presented by the pleadings and supported by the evidence.

Kay & Kay, North Platte, for appellant.

Graten D. Beavers and Dirk V. Block, of Knapp, Mues, Beavers & Luther, Kearney, for appellees.

BOSLAUGH, WHITE, and SHANAHAN, JJ., and THOMPSON and SPRAGUE, District Judges.

SHANAHAN, Justice.

Union Pacific Railroad Company appeals from a judgment on the verdict for Arthur J. and Diane K. Anderson as the result of a truck-train collision at a public crossing. Andersons alleged that Union Pacific negligently created and maintained a "dangerous and hazardous" railroad crossing, which proximately caused damage to Andersons' semi when a Union Pacific freight train collided with the tractor and trailer. Union Pacific raised the affirmative defense of contributory negligence by the semi's driver, who was Andersons' employee.

In all but one of the errors assigned, Union Pacific claims that, as a matter of law, Andersons' driver was contributorily negligent in a degree which barred recovery and which necessitated a summary judgment, directed verdict at conclusion of all the evidence, judgment notwithstanding the verdict, or new trial. In its final assignment of error, Union Pacific contends that the jury should have been instructed on the truckdriver's failure to maintain reasonable control over the semi, an element of the alleged contributory negligence. We affirm.

APPELLATE REVIEW; NEGLIGENCE CASES

"A party against whom a motion to dismiss is directed is entitled to have all such party's relevant evidence accepted or treated as true, every controverted fact as favorably resolved, and every beneficial inference reasonably deducible from the evidence." Rahmig v. Mosley Machinery Co., 226 Neb. 423, 449, 412 N.W.2d 56, 73-74 (1987).

A court cannot decide an issue as a matter of law unless the facts adduced on an issue are such that reasonable minds can draw but one conclusion from the evidence. Rahmig v. Mosley Machinery Co., supra. In a jury trial, when evidence compels but one reasonable conclusion regarding an issue or question in the litigation, a court can properly direct a verdict on such issue or question. Edwin Bender & Sons v. Ericson Livestock Comm. Co., 228 Neb. 157, 421 N.W.2d 766 (1988). See, also, Rahmig v. Mosley Machinery Co., supra.

[I]n a jury trial of a negligence action, the trial court must decide whether a plaintiff is guilty of negligence, and, if so, must then decide whether evidence is such that only one reasonable conclusion is permissible--the plaintiff's contributory negligence which, as a matter of law, bars recovery and authorizes a directed verdict for the defendant. [Citations omitted.] If, as the result of such initial consideration of the evidence, the trial court determines that the jurors may reasonably draw different conclusions from the evidence, existence of the plaintiff's negligence or contributory Rahmig v. Mosley Machinery Co., supra 226 Neb. at 451, 412 N.W.2d at 75.

negligence and comparative negligence are questions of fact for the jury.

To determine whether conduct constitutes negligence, the invariable standard is reasonable care, although reasonable care is directly proportional to the danger inherent in conduct and may vary depending on the circumstances....

....

One who is capable of understanding and discretion but fails to exercise ordinary care and prudence to avoid obvious dangers is negligent or contributorily negligent.

Lynn v. Metropolitan Utilities Dist., 225 Neb. 121, 126-27, 403 N.W.2d 335, 339 (1987). See, also, Prime Inc. v. Younglove Constr. Co., 227 Neb. 423, 418 N.W.2d 539 (1988); Rahmig v. Mosley Machinery Co., supra.

CONDITIONS AT THE CROSSING

Surrounded by industrial facilities which generate high levels of noise, Union Pacific's crossing near Darr, Nebraska, involves a two-lane gravel county road, which runs north and south over three sets of east-west tracks. The length of the crossing is approximately 45 feet. A main line track runs parallel with and on each side of a center siding track. In traversing the crossing, a northbound motorist crosses the eastbound main line, the center siding track, which usually contained empty railroad cars, and, finally, the westbound main line. The main lines are 14 feet from the center siding track. Standard crossbuck signs at the south and north edges of the railroad right-of-way inform approaching motorists that there are three sets of tracks crossing the public road. Beneath the crossbuck are alternating red lights, flashers which are supposed to automatically warn motorists about railroad traffic. The flasher-signals, however, for some time had been falsely indicating the presence of an approaching train, when actually no train was approaching. Beginning in the late 1970s, the signal's alternating lights would flash continuously for hours at a time, notwithstanding the absence of any train or railroad car on the tracks. Some of the local folks had notified Union Pacific about the malfunctioning crossing flashers, but the railroad claimed it had no knowledge of the signals' false indication and, therefore, never rectified the deceptive signals. Although employees at a nearby alfalfa mill verified that the signals were malfunctioning with false indications 2 weeks before the accident, Union Pacific steadfastly maintained that the crossing flashers were properly working 4 months before the collision. Several witnesses testified that they would ignore the flashing warning lights at the crossing, taking for granted that the warnings were false, and looked for trains no matter what the signals were indicating.

On the center siding at a point 218 feet east of the crossing, Union Pacific parked a string of 17 empty hopper cars, each with an approximate length of 55 feet, for a combined distance of around 935 feet from the first hopper to the last at the east end of the string of cars. Although Union Pacific had been repeatedly requested to take away the empty cars, the railroad did not remove the hoppers before the accident. West of the crossing, Union Pacific had also placed a number of hopper cars on the center siding.

Ken Zimmerman, manager of the alfalfa mill near the crossing, testified that one could not see a train on the westbound Union Pacific main line when hopper cars were on the center siding, obstructing a northbound motorist's view to the east of the crossing. According to Zimmerman, railroad traffic on the westbound main line would "blend in" with the stationary railroad cars on the center siding. An engine's whistle could be faintly heard while a westbound train was behind the railroad cars on the siding. As characterized by Zimmerman, on account of the obstructed view from the railroad cars standing on the siding, the only way a motorist "could pass safely" would require a motorist to stop on the crossing, get out of the vehicle, and go to a point where the motorist could look down the westbound main line to assure there was no approaching traffic. Union

Pacific acknowledged that empty railroad cars were not supposed to be parked on a siding too close to a grade crossing.

THE COLLISION

Weather conditions were not a factor in the accident which occurred on February 9, 1984. Ronald R. McCully, Andersons' employee, was driving the Andersons' semi north on the road toward the crossing and did not recall whether the flasher-signal was operating at the time. Having used this particular crossing in his route during the past, McCully had previously observed that the warning signals continually flashed even when no train was approaching the crossing. McCully did not know which tracks were main line or siding. Somewhere around 6 feet south of the flasher for northbound vehicles, McCully "looked to the right or east to see if there was any trains coming ... started across the tracks and looked across to make sure there was no trains coming." Without stopping, McCully passed the south flasher and again looked for approaching railroad traffic, but saw only the hopper cars on the center siding east of the crossing. At 7 miles per hour, the semi moved onto the tracks. As the semi was crossing the eastbound main line, McCully noticed an approaching southbound truck at the north edge of the crossing. Having...