Bryan v. Norfolk & Western Railway Co.

• Decision Date: 03 July 1997
• Docket Number: No. 4:96CV00067 LOD.,4:96CV00067 LOD.
• Citation: 21 F.Supp.2d 1030
• Parties: Freda M. BRYAN, Plaintiff, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant/Third-Party Plaintiff, v. CITY OF JONESBURG AND COUNTY OF MONTGOMERY, Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Missouri

21 F.Supp.2d 1030

Freda M. BRYAN, Plaintiff, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant/Third-Party Plaintiff, v. CITY OF JONESBURG AND COUNTY OF MONTGOMERY, Third-Party Defendants.

No. 4:96CV00067 LOD.

United States District Court, E.D. Missouri, Eastern Division.

July 3, 1997.

COPYRIGHT MATERIAL OMITTED

Mark E. Goodman, Sanford J. Boxerman, Rosenblum and Goldenhersh, St. Louis, MO, for Freda M. Bryan, plaintiff.

Dan H. Ball, J. Powell Carman, Associate, David A. Dick, Thompson Coburn, St. Louis, MO, for Norfolk and Western Railway Company, defendant.

ORDER AND MEMORANDUM OF UNITED STATES MAGISTRATE JUDGE

DAVIS, United States Magistrate Judge.

This case is before the undersigned United States Magistrate Judge by consent of the parties pursuant to 28 U.S.C. § 636(c). Presently before the Court is defendant Norfolk & Western Railway Company's (N & W) motion for summary judgment, its motion to compel and to produce directed to third-party defendant City of Jonesburg (City), and plaintiff Freda Bryan's motion to amend.

Plaintiff brought this wrongful death action against defendant N & W, who in turn joined defendants City and County of Montgomery (County) as third-party defendants. This suit was originally brought in state court and was removed by defendant N & W based on diversity.

Plaintiff alleges that defendant N & W owned and maintained railroad tracks and a crossing running in an east-west direction across Massas Creek Road in the City of Jonesburg, Montgomery County. Plaintiff further alleges that her spouse, Charles Bryan, was killed on March 18, 1993 while driving a truck that collided with a train owned by defendant N & W at the Massas crossing. She now sues as the surviving spouse under Missouri's Wrongful Death Statute, Mo.Rev.Stat. § 537.080, (1994).

Plaintiff alleges in her complaint that:

1. the crossing over which defendant N & W's tracks ran was "extraordinarily hazardous" in that:

a. a motorists' view of the approach of defendant N & W's trains is obstructed by terrain;

b. the approach of the train is hidden from the view of motorists; and

c. the Massas crossing is not guarded by automatic gates or flashing signals.¹

2. defendant N & W's negligence caused the collision and the death of Mr. Bryan in five respects:

a. by failing to ring a bell, sound a horn, or blow a whistle at least 80 rods from the crossing, and to repeat the same at intervals prior to reaching the crossing so as to warn Mr. Bryan of the approach of its train in violation of Mo. Rev.Stat. § 389.990, (1994);

b. by operating its train at a speed in excess of that permitted by 49 C.F.R. § 213.9(a);

c. by failing to keep a careful lookout for the approach of motorists over the crossing;

d. in failing to adequately protect the crossing by failing to erect and maintain automatic warning lights and automatic gates with flashing light signals, or alternatively, if federal law preempts this claim, then;

e. in failing to adequately protect the crossing by failing to erect and maintain automatic gates with flashing light signals in violation of 23 C.F.R. § 646.214(b)(3).

Defendant N & W has moved for summary judgment arguing that plaintiff's negligence claims are preempted by state and federal law, refuted by the record, and that Mr. Bryan caused the accident. Defendant N & W also has filed a motion to compel and to produce directed at third-party defendant City. Rather than beginning with a recitation of the facts, the Court will discuss the relevant facts as it analyzes the merits of each claim.

In determining whether summary judgment should be issued, the facts are viewed in the light most favorable to the nonmoving party and the burden is placed on the moving party to establish the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Electrical Industrial Company v. Zenith Radio Corporation, 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in his pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). If the record as a whole could not lead a rational trier of fact to find for the nonmoving party, "there is no `genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348.

1. Negligence

a. Violation of Mo.Rev.Stat. § 389.900 (1994)

Plaintiff alleges that defendant N & W was negligent with regard to the Massas crossing. Plaintiff first argues that defendant N & W was negligent by failing to fulfill its statutory duty to ring a bell, sound a horn, or blow a whistle at least 80 rods from the crossing, and to repeat the same at intervals prior to reaching the crossing so as to warn Mr. Bryan of the approach of its train in violation of § 389.990.

Defendant N & W argues that the depositions of David Duffield, the conductor, and Jerry O'Donnell, an engineer, establish that the train's whistle was sounded in the sequence of two long whistles, a short, then a long whistle at a distance of 3,856 feet from the crossing. Thus, defendant N & W claims that plaintiff cannot establish that it violated § 389.990.

In response, plaintiff argues that the affidavits of John and Elaine Wells, who live in a house adjacent to the railroad and less than 250 feet south of the crossing, establish a factual issue as to whether there was a violation of § 389.990. In those affidavits, Mrs. Wells states that she did not hear any horn, bell, or whistle prior to the collision, and Mr. Wells states that the only time he heard a horn, bell, or whistle was when the train was less than 100 feet east of the crossing.

In reply, defendant N & W argues that under Missouri law the Wells' statements are admissible "negative evidence" and capable of supporting an inference that the whistle did not sound only if it is reasonably certain that they were in close proximity to the track, in a position to have heard the whistle if it sounded, and were attentive to whether the whistle was in fact sounded. Defendant N & W argues that neither of the Wells' affidavits include any foundation that they were listening for a whistle or attentive in any way. Defendant N & W notes that the fact that Mr. Wells heard the whistle and his wife did not shows that she was not in a position to hear, or was not listening for, the whistle.

Defendant N & W further argues that at her deposition Mrs. Wells testified that she was not listening for a whistle, that due to living close to the tracks she has gotten used to train whistles, and that it was possible she simply did not notice it that day. Additionally, defendant N & W states that Mr. Wells testified that he was not listening for a whistle, that living in that vicinity he has gotten used to train whistles, and that the train whistle could have blown prior to the first time he heard it. Finally, defendant N & W argues that Mr. Wells stated that a minute or two passed from the time he heard the whistle until he saw the train, which was then over the Massas crossing. Thus, defendant N & W argues Mr. Wells first heard the whistle when the train was east of the crossing.

Section 389.990 states in part that:

a horn or whistle shall be attached to such engine and be sounded at least eighty rods [440 yards] from the place where the railroad shall cross at any such road or street ... and be sounded at intervals until it shall have crossed such road or street ...

As defendant N & W points out, in cases such as this, a witness's statement that he did not hear a train's whistle is of probative value only if it is shown that a witness: 1) was in close proximity to the track, 2) was in a position to have heard the whistle if sounded, and 3) was attentive to whether the whistle was in fact sounded. Chamberlain v. Thompson, 256 S.W.2d 779, 781 (Mo.1953).

Mrs. Wells' affidavit, at most, establishes that she did not hear the train whistle. It does not establish that the train whistle never blew. It also conflicts with the testimony of the train crew and her husband's affidavit. Furthermore, her deposition statements that it was possible that she simply did not hear the whistle that day and that she did not hear the train itself until after the collision fails the Chamberlain test. There simply is no showing that she was attentive to whether the whistle was in fact sounded. Ms. Wells' affidavit fails to create a genuine issue of material fact concerning whether the train blew its whistle in conformance with § 389.990.

Mr. Wells stated at his deposition that he had no particular reason to be listening for a train the morning of the collision, that living in that vicinity he had gotten use to trains, he could not tell where the train was located when he heard the train's horn for the first time, that the train could have been some distance east before he first heard it, and that the train's horn could have sounded prior to the first time he heard it. Pursuant to Chamberlain, these facts fail to show that Mr. Wells could offer any probative evidence on the issue of whether the train sounded a warning as required. There simply is no showing that he was attentive to whether the whistle was in fact sounded.

The Court also notes an inconsistency between Mr. Wells deposition testimony and his affidavit. The deposition was more detailed than his affidavit and it involved cross-examination by opposing counsel. Thus, his deposition has more indicia of reliability than his one-page affidavit. Finally, the depositions of the train crew demonstrate that defendant N & W complied with § 389.990, both as to when and how the whistle was sounded.

Therefore, defendant N & W has established the absence of a genuine issue of material fact, as a review of the record as a whole could not lead a rational trier of fact to find for plaintiff on a claim that defendant N & W failed...