Bradshaw v. Simpson

• Decision Date: 02 December 1983
• Docket Number: BURLINGTON-NORTHERN
• Citation: 442 So.2d 66
• Parties: Marie BRADSHAW, etc. v. Louis G. SIMPSON, et al. (Two Cases) MARYLAND CASUALTY COMPANY v.RAILROAD, et al. STANDARD FIRE INSURANCE COMPANY, as Subrogee of MDR Cartage, Inc. v.RAILROAD COMPANY, et al. JACINTOPORT CORPORATION v. Marie BRADSHAW, as Administratrix of the Estate of Bobby T. Shackelford, deceased, Marie Bradshaw, as surviving dependent mother of Bobby T. Shackelford, deceased, individually and jointly. 82-605, 82-729, 82-785, 82-791 and 82-909.
• Court: Alabama Supreme Court

Page 66

442 So.2d 66

Marie BRADSHAW, etc. v. Louis G. SIMPSON, et al. (Two Cases)

MARYLAND CASUALTY COMPANY v. BURLINGTON-NORTHERN RAILROAD, et al.

STANDARD FIRE INSURANCE COMPANY, as Subrogee of MDR Cartage, Inc. v. BURLINGTON-NORTHERN RAILROAD COMPANY, et al.

JACINTOPORT CORPORATION v. Marie BRADSHAW, as Administratrix of the Estate of Bobby T. Shackelford, deceased, Marie Bradshaw, as surviving dependent mother of Bobby T. Shackelford, deceased, individually and jointly.

82-605, 82-729, 82-785, 82-791 and 82-909.

Supreme Court of Alabama.

Dec. 2, 1983.

Joseph M. Brown, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellants/cross-appellees.

Broox G. Holmes and Norman E. Waldrop, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees Louis G. Simpson and Burlington Northern R. Co.

Peter V. Sintz and Mary Beth Mantiply of Sintz, Pike, Campbell & Duke, Mobile, for appellee Jacintoport Corp.

JONES, Justice.

These consolidated appeals stem from judgments rendered in jury trials for Defendants against Plaintiff ¹ on allegations of negligence on the part of the Defendants. Plaintiff appeals, claiming error in the trial court's order granting Defendants' motion for directed verdict on the wanton count. Defendant Jacintoport Corporation cross-appeals, alleging error on the part of the trial judge in refusing certain jury charges. We affirm as to each of the respective appeals and the cross appeal.

FACTS

On August 12, 1981, at 11:05 in the morning, Bobby T. Shackelford, Plaintiff's intestate was killed while operating a tractor/trailer truck along Jacintoport Boulevard, a four-lane paved road located in Mobile County, Alabama. Plaintiff's intestate was struck by a train as he crossed the tracks at a point where Burlington-Northern's track crosses Jacintoport Boulevard.

At the time of the accident, Burlington-Northern's train was traveling in a northerly direction along its tracks, and the tractor/trailer truck driven by Plaintiff's intestate was traveling in a westerly direction on Jacintoport Boulevard. Another set of railroad tracks owned by the Southern Railway Company runs parallel to and approximately 100 to 110 feet east of the Burlington-Northern crossing at Jacintoport Boulevard. Both tracks are straight and level. On the day of the accident, crossbuck railroad markers were in place on either side of both the Burlington-Northern crossing and the Southern Railway crossing.

Along the route traveled on the day of the accident, approaching the crossing in question from the east to the west along Jacintoport Boulevard, Shackelford passed five signs warning of the crossing before passing over Burlington-Northern's track.

After passing the entrance to a facility on the right, Shackelford passed a black-on-yellow circular advance warning sign on the right side of the road approximately 270 feet east of the Burlington-Northern crossing, and 160 to 170 feet east of the Southern Railway crossing. This sign was set in place by the governmental authority having jurisdiction over this roadway.

Next, along this approach, is a white railroad warning painted on the roadway, beginning about 100 feet to the east of the Southern Railway crossing. This painted warning is about 30 feet from top to bottom and terminates at a point approximately 70 to 80 feet east of the Southern Railway crossing. This pavement marker was also applied by the governmental authority having jurisdiction over the streets in the area in question.

Shackelford then passed a third sign (sometimes called the "Jacintoport sign"), which warns, "Caution--2 Track Railroad Crossing," and which has two four-inch yellow lights above the message. The lights have never been equipped with power, and thus were inoperative on the day of the accident. This sign is on a tall pole that is topped off with a black-on-white railroad-style crossbuck and is 53 feet from the Southern Railway track, and 153 feet from the Burlington-Northern track.

After passing the Jacintoport sign, Mr. Shackelford then passed a crossbuck railroad sign situated immediately to the east of the Southern track; there he came to a complete stop. Passing over the Southern track and continuing to the Burlington-Northern crossing, where the accident occurred, he passed another crossbuck railroad sign immediately to the east of the Burlington-Northern crossing. At this time, Shackelford was traveling at a rate of 5-10 miles per hour. He did not stop at the Burlington-Northern track, but drove onto the Burlington-Northern track. At the point when the front of his truck was over the track, the impact took place.

The train involved in the accident was made up of 33 cars pulled by three locomotives. It was a little more than half a mile long. The lead locomotive was 15 feet high, 10 feet wide, and 50 feet long. It was painted orange and white. Two lights on the front of the locomotive were working at the time of the accident, and were visible during the daylight hours. The truck and trailer driven by Shackelford was 54 feet long. The truck had a flush-front cab.

Louis Simpson, the engineer of the train, stated that, in accordance with normal procedure, he began sounding the whistle and bell a quarter of a mile from the crossing and continued sounding the whistle and bell until the collision occurred. Several other witnesses confirmed that the whistle was sounded before the accident, but Plaintiff presented witnesses who said that the whistle had not been sounded prior to the collision.

As the train approached the crossing, Simpson testified, he was not aware of Shackelford's approach to the track until he saw the front of the truck projecting over the track. At this time, Simpson was keeping a lookout on the left, or west, side of the cab. Simpson said he continued sounding the bell and whistle as he reached to apply the emergency brake, but found that the brake had already been applied by the brakeman, Walter Beard.

Beard was keeping a lookout on the right, or east, side of the cab as the train approached the crossing. Beard testified he first saw the truck when the train was 400-500 feet from the crossing, as the truck was "slowly" crossing the Southern Railway track and proceeding toward Burlington-Northern's track. Beard said he thought the truck was going to stop and was "surprised" when he realized the truck was not going to stop, and that immediately upon this realization he applied the emergency brake.

The testimony at trial conflicted as to the speed of the train as it approached the intersection in question. Defendants contended the train was going 35 miles per hour and supported this testimony by introducing the recording of a "tachygraph" device, which recorded the speed of the train on the morning of the accident. Plaintiff's eye witnesses testified the train was going about 50-55 miles per hour. No speed limit is set by governmental authority, but Burlington-Northern had imposed a speed limit of 40 miles per hour on this track due to "track conditions."

At the close of all the evidence, the trial court directed a verdict in favor of Defendants on Plaintiff's wantonness count, and submitted the case to the jury solely on the negligence question. A general verdict was returned in favor of all Defendants. Motions for new trial were subsequently denied. These appeals followed.

ISSUES

Plaintiff's...