Baker v. Canadian National/Illinois Cent. R.R.

• Decision Date: 16 July 2008
• Docket Number: No. 06-60138.,06-60138.
• Citation: 536 F.3d 357
• Parties: Charles E. BAKER, Plaintiff-Appellant, v. CANADIAN NATIONAL/ILLINOIS CENTRAL RAILROAD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

536 F.3d 357

Charles E. BAKER, Plaintiff-Appellant, v. CANADIAN NATIONAL/ILLINOIS CENTRAL RAILROAD, Defendant-Appellee.

No. 06-60138.

United States Court of Appeals, Fifth Circuit.

July 16, 2008.

Michael Todd Blotevogel (argued), Gail G. Renshaw, Charles William Armbruster, The Lakin Firm, Wood River, IL, Andre Francis Ducote, Lundy & Davis, Jackson, MS, for Baker.

George Howard Ritter (argued), Charles Henry Russell, III, Wise Carter Child & Caraway, Jackson, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before HIGGINBOTHAM, SMITH and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Charles Baker sued "Canadian National/Illinois Central Railroad" for injuries sustained after its train struck the dump truck Baker was driving. The railroad, whose correct name is Illinois Central Railroad Company and to which we will refer as Illinois Central, prevailed in a trial before a jury. Baker appeals and alleges numerous errors. We affirm.

I

Illinois Central hired a contractor, W.S. Red Hancock, Inc. (Hancock), to remove vegetation, dirt, and other obstructions from the railroad's right of way at a public railroad crossing that Illinois Central maintained. Charles Baker worked for Hancock as a dump-truck driver. Together with Ken Henderson, another Hancock driver, Baker was to haul the cleared debris from the job site to a local landfill.

The job site was located approximately twenty to thirty feet from the closest rail, though the parties disputed the site's exact proximity to the tracks. There were stop signs and railroad crossbucks where the public road on which Baker traveled in leaving the job site intersected the tracks, but neither Illinois Central nor Hancock provided flagmen or watchmen to warn the work crew of approaching trains. Some of Baker's co-workers, including the other truck driver Henderson, testified they believed flagmen were unnecessary for this job site, though one did recall an unnamed co-worker's unsuccessful request for a flagman. Baker's expert, Edward Stanton, whose companies performed similar work, testified he believed a flagman was necessary and that companies generally used flagmen at sites he considered far safer than Green's Crossing, the site of the accident. James Loumiet, Baker's expert on railroad-highway safety, agreed with Stanton that a flagman was necessary for safety.

Shortly after 9:00 a.m., Baker followed Henderson across the tracks, and the Illinois Central's train struck Baker's truck. Baker testified that he did not see or hear the approaching train before the accident. Nonetheless, he concedes that Richard Dunn, the locomotive engineer, sounded the horn and bell in compliance with the law and was traveling within the maximum speed limit set by the Federal Railroad Administration (FRA).

Baker also testified that by the time he pulled off the job site and straightened his truck on the road, it was on the tracks, though he also claimed not to remember any events occurring after he released his parking brake. Baker's son, also an experienced truck driver but not an eyewitness, testified that in his opinion Baker would have been unable to pull his truck perpendicular to the crossing until the truck was on the tracks. Both agreed that Baker was unable to approach the tracks without some or all of his truck entering the road's left lane for oncoming traffic.

Nonetheless, several eyewitnesses disputed the Bakers' testimony. The locomotive engineer testified that Baker's truck was "squared up with the railroad tracks" and "all in his lane" moments before the accident. Baker's co-worker, Leon Davis, testified that, before Baker crossed the tracks, his truck was positioned such that he had the same view that any other motorist traversing the crossing would have had. The other driver, Henderson, testified he was able to straighten his own truck at the stop sign, which provided him a ninety-degree angle to view the track like any other motorist. However, Baker's and Henderson's trucks were different makes and models.

Several eyewitnesses testified that Baker never stopped for the stop sign or warning devices, though they agreed his truck was traveling no faster than two miles per hour at the time of collision. Dunn, the locomotive engineer, testified that Baker never appeared to look for an approaching train. As Dunn approached, he observed Baker's co-workers running towards the truck and waving their arms, warning Baker of the approaching train.

Baker sued Illinois Central and alleged it was negligent for failing to provide flagmen or other protections to Baker and for not installing lights or gates. Baker filed a motion for partial summary judgment and argued that the Roadway Worker Protection Rules (RWPR) required Illinois Central to provide a flagman, watchman, or other protection because the work required the crew to "foul the tracks" by placing themselves in a position where a train could strike either them or their equipment and that Illinois Central did not dispute the absence of such warning systems. The district court denied Baker's motion and would later deny Baker's motion for a judgment as a matter of law.

The case proceeded to a jury trial with a verdict in favor of Illinois Central. The jury specifically found that Baker's work did not require him to "foul the tracks" as that term was defined in the district judge's instructions. Baker appeals the outcome and alleges approximately sixteen errors and sub-errors.

II

Baker argues that the trial court erred in denying his motion for judgment as a matter of law in which he contended that the Illinois Central violated duties to provide a flagman under both the RWPR and common law and the breach of those duties was the proximate cause of the collision. The district court previously denied Baker's motion for partial summary judgment that asserted these same grounds. This court reviews de novo the denial of motions for judgment as a matter of law, applying the same standards the district court applied.¹ The district court should grant the motion if, after considering all evidence in the light most favorable to the party opposed to the motion, the facts and inferences strongly and overwhelmingly favor the moving party so that the court concludes reasonable jurors could not arrive at a contrary verdict,² or if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.

We note at the outset that fact issues existed as to proximate cause under Mississippi law. The undisputed evidence indicated that Baker ran through the stop sign. Under Mississippi law, even if the railroad company were negligent, Baker's violation of three different statutory duties to stop³ was arguably a proximate cause of the accident. Thus, the district court did not err as to proximate cause. For the same reasons, the district court did not err in rejecting Baker's contention that Illinois Central was negligent per se under Mississippi law.

A

Baker argues that the district court erred by denying the two motions regarding whether Illinois Central violated its duties under the RWPR. Illinois Central, however, disputes whether the RWPR apply.

The RWPR require that qualifying railroads adopt and implement an on-track safety program that will afford on-track safety to all roadway workers.⁴ The regulations define "on-track safety" as "a state of freedom from the danger of being struck by a moving train or other railroad equipment, provided by operating and safety rules that govern track occupancy by personnel, trains and on-track equipment."⁵ The regulations further define "roadway worker" as:

[A]ny employee of a railroad, or a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track, and flagmen and watchmen/lookouts as defined in this section.⁶

Neither party disputes that Baker was an employee of a contractor to a railroad, but they do dispute whether the work that day was "on or near track or with the potential of fouling a track." "Fouling a track" is the "placement of an individual or an item of equipment in such proximity to a track that the individual or equipment could be struck by a moving train or on-track equipment, or in any case is within four feet of the field side of the near running rail."⁷ Presumably, if "fouling a track" is placing an individual or equipment within four feet, at a minimum, of the track, then the phrase "on or near track" provides some additional coverage beyond four feet.

The evidence indicated that the job site was located, at its nearest point, twenty to thirty feet from the closest rail. At that distance, Baker did not, as a matter of law, have the potential to foul the track, nor was he on or near the track. Nonetheless, Baker argues that he certainly fouled the track; the train actually hit him. That fact, however, is not dispositive, because Baker fouled the tracks and was hit away from the work site. The proximity of the work site to the track determines whether the RWPR apply, not whether a worker fouls the tracks after leaving the work site. Thus, the RWPR did not apply, and the court did not err by denying Baker's motions regarding Illinois Central's duty under the RWPR.

We do not reach the question of whether Baker ceased to be a "roadway worker" once he drove his truck onto the public road, an issue that the district court decided adversely to Baker.

B

Baker next argues the district court should have ruled that as a matter of law Illinois Central violated its common-law duties. Baker based his motions on his expert's testimony that whenever the expert's companies worked as independent contractors performing work similar to that of Hancock,...