Bryan v. Norfolk and Western Ry. Co

• Citation: 154 F.3d 899,1998 WL 596055
• Decision Date: 10 September 1998
• Docket Number: No. 97-3077,97-3077
• Parties: Freda M. BRYAN, Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 899

154 F.3d 899

Freda M. BRYAN, Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, Appellee.

No. 97-3077.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1998.

Decided Sept. 10, 1998.

Sanford Jay Boxerman, St. Louis, MO, argued (Mark E. Goodman, on the brief), for appellant.

Dan H. Ball, St. Louis, MO, argued (David A. Dick, on the brief), for appellee.

Before RICHARD S. ARNOLD, ¹ Chief Judge, and WOLLMAN and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Plaintiff Freda M. Bryan appeals from the summary judgment the district court ² entered against her in this wrongful death action. We affirm.

Early on the morning of March 18, 1993, Charles Bryan set off for work in Jonesburg, Missouri. He stopped at the home of John Wells, a co-worker with whom he often drove to work. On that morning, Mr. Wells did not accompany Mr. Bryan, so at 5:45 a.m., Mr. Bryan continued on alone. He drove west down the Wells' driveway in his truck, turned north onto Massas Creek Road, and proceeded about 200 feet onto a grade crossing, where he was struck and killed by a westbound freight train. At the time of the accident, the Massas crossing was protected only by reflectorized crossbucks, the familiar X-shaped signs which read, "RAILROAD CROSSING." The crossbucks had been installed pursuant to a state-wide plan by the Missouri Public Service Commission to improve safety devices at all grade crossings in the state, and federal funding had contributed to the installation.

Bryan's wife brought this wrongful death suit in Missouri state court to recover damages for her loss. She named as a defendant the Norfolk and Western Railway Company (the N & W), which operated the train and owned the tracks at the grade crossing where Mr. Bryan died. The N & W properly removed the action to the district court for the Eastern District of Missouri on the basis of diversity jurisdiction, see 28 U.S.C. §§ 1332, 1441, and cross-claimed against the city and county in which the crossing was located, as well as the Missouri Highway Commission, to whose dismissal all parties later stipulated. The N & W then moved for summary judgment, which the district court granted. The city and county were dismissed upon the grant of summary judgment.

On appeal, Mrs. Bryan contends that the district court erred by granting summary judgment. First, she claims a fact issue exists over whether the N & W's engine crew failed to warn of the train's approach to the Massas crossing; second, that there is an issue of fact concerning whether the crew failed to keep a proper lookout as they approached the crossing; and finally, that her claim that the N & W failed to maintain the grade crossing adequately is not preempted by federal or state law. We review the district court's grant of summary judgment by the well-known de novo standard, "viewing the evidence in the light most favorable to [the non-moving party], and ... affirm[ing] only if we agree there are no genuine issues of material fact and that the [moving party] is entitled to judgment as a matter of law." United States v. Dico, Inc., 136 F.3d 572, 578 (8th Cir.1998); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Sitting in diversity, we apply the substantive law of the applicable state, in this case, Missouri. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Finally, we review de novo a district court's determination of state law, see Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

I. Failure to Warn

The N & W's common-law duty to warn of a train's approach to a grade crossing has been codified in Missouri. A bell, horn, or whistle shall "be sounded at least eighty rods [one quarter mile] from the place where the railroad shall cross any such road or street ... and be sounded at intervals until it shall have crossed such road or street." Mo.Rev.Stat. § 389.990 (1994). Should the railroad fail to fulfill this duty, and should that failure result in injury, the railroad is liable for the injury. Id. Mrs. Bryan asserts that the N & W did not signal the approach of its freight train, and that this failure caused her husband's death. To make a sufficient offer of proof in response to a motion for summary judgment, she must elicit admissible evidence that no warning sounded. Missouri law carefully describes what type of evidence is admissible.

[N]egative evidence, such as "I did not hear," is positive and of substantial probative force or value in a situation where it is reasonably certain the witness could and would have heard, that is, where "it is shown that a witness was in close proximity to the track, in a position to have heard the whistle (or bell) if it was sounded, and was attentive to whether the whistle was in fact sounded."

Chamberlain v. Thompson, 256 S.W.2d 779, 781-82 (Mo.1953) (quoting Knorp v. Thompson, 357 Mo. 1062, 212 S.W.2d 584, 588 (1948) (en banc)).

In opposition to the N & W's summary judgment motion, Mrs. Bryan submitted affidavits of John and Elaine Wells, the couple whose house her husband had visited shortly before the accident. In response, the N & W deposed the Wells, and additionally introduced depositions from the train crew. Elaine Wells' affidavit stated that she did not hear any whistle on the morning of March 18, 1993; John Wells' affidavit stated that he heard a whistle only "when the train was adjacent to [his] house." (J.A at 184.) However, the deposition testimony of both witnesses revealed more. Mrs. Wells testified that she was in the kitchen of her house, in the corner farthest from the tracks, and heard no sounds of a train at all until her husband opened the front door, at which time she heard a train. She also testified that, living in such close proximity to the tracks, she had become accustomed to hearing trains, and that, on the fateful morning, she had no particular reason to be attentive to the sounds of trains near the house. Mr. Wells testified in his deposition that he first heard the train whistle when it was near the house, but that he couldn't say how near, nor did he look outside to see the train, nor was he sure whether the train had come even with the house or whistled at some unknown distance east. Contrarily, the train crew described in detail the route they traveled. They crossed three roads in short order, the third of which was Massas Creek Road where Mr. Bryan died. They testified that they began sounding the whistle in advance of the first crossing and continued to sound it until the accident at Massas Creek Road. The total distance from where the whistle first sounded to the Massas Crossing was 3,856 feet--well over the required quarter mile.

In reviewing whether a grant of summary judgment was appropriate--whether any genuine issue of material fact existed regarding the N & W's alleged failure to warn of the approach of their train--we do not weigh the evidence or attempt to determine witness credibility. See Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 598 (8th Cir.1998). Nonetheless, Missouri law clearly precludes admission of the Wells' "negative evidence," which purports to show that no whistle warned of the impending approach of the train. See Chamberlain, 256 S.W.2d at 781-82; Knorp, 212 S.W.2d at 588. We do not engage in a credibility determination when we acknowledge, as did the district court, that there is no showing that either witness was actually attentive to whether a train whistle blew, and that it is unclear whether Mrs. Wells was in a position to hear a whistle if it in fact blew. Since Missouri law requires us to disregard the Wells' testimony, there exists no dispute regarding the train's warning on the record before us, and summary judgment on Mrs. Bryan's failure to warn claim was appropriate. The evidence is insufficient as a matter of law to generate a factual question of whether or not the whistle was sounded.

II. Failure to Keep a Lookout

Mrs. Bryan argues next that she demonstrated that a genuine issue of material fact exists on the question of whether the N & W failed to keep a proper lookout as the train approached the Massas crossing. To survive summary judgment on this claim, she must create a genuine question of fact on whether the crew stayed properly attentive to vehicular traffic, and also on whether, had they kept their lookout, the accident would have occurred. See Barlett v. Kansas City Southern Ry. Co., 854 S.W.2d 396, 400 (Mo.1993) (en banc). As the district court noted, Missouri law did not require the train crew to brake as soon as they saw Mr. Bryan, but only when he entered the "zone of danger," that point where an accident would certainly occur. See, e.g., Bunch v. Missouri Pac. R.R., 386 S.W.2d 40 (Mo.1965) (no duty to stop the train simply because a vehicle slowly approaches the crossing); Bulkley v. Thompson, 240 Mo.App. 588, 211 S.W.2d 83 (1948) (no duty on train until traveler enters danger zone). Mr. Bryan passed the "point of no return" at 10 miles per hour roughly 2 seconds before the train arrived. At 50 miles per hour, the 47-car train could not possibly have stopped in so short a time. So, even if Mrs. Bryan could show that the crew was not looking, she has not created a question of fact demonstrating that such a failure caused the accident. Once Mr. Bryan entered the zone of danger, no further action by the train crew could have altered the chain of events rapidly enough to prevent the collision. Since Mrs. Bryan could not prove causation, the district court correctly granted summary judgment on this claim.

III. Failure to Maintain the Crossing

Mrs. Bryan's final theory of negligence is that the N & W failed to properly maintain the grade crossing at Massas Creek Road. The district court granted the N & W's motion for summary judgment on the grounds that any common-law negligence claims for failure to...