Central of Georgia R. Co. v. Markert

Citation410 S.E.2d 437,200 Ga.App. 851
Decision Date16 July 1991
Docket NumberNo. A91A0549,A91A0549
PartiesCENTRAL OF GEORGIA RAILROAD COMPANY et al. v. MARKERT et al.
CourtGeorgia Court of Appeals

Hall, Bloch, Garland & Meyer, F. Kennedy Hall, Steven J. Stewart, Macon, for appellants.

Burt & Burt, Hilliard P. Burt, Albany, for appellees.

CARLEY, Judge.

The relevant facts in this case are as follows: After their son was killed when his vehicle was struck at a railroad crossing, appellee-plaintiffs initiated the instant wrongful death action against appellant-defendants. Following a period of discovery, appellants moved for partial summary judgment as to certain allegations of their negligence. The trial court denied appellants' motion, but certified its order for immediate review. Appellants applied to this court for an interlocutory appeal and the instant appeal results from the grant of their application.

1. Appellants' motion was based, in part, on the ground of federal preemption. Assuming without deciding that federal preemption is an affirmative defense, appellants' failure to have raised that defense in their answers was itself waived by appellees. Phillips v. State Farm, etc., Ins. Co., 121 Ga.App. 342(2a), 173 S.E.2d 723 (1970).

2. Appellees had alleged that appellants' failure to have equipped the locomotive with certain safety and warning devices was actionable negligence. However, appellants showed that the locomotive had been equipped with such safety and warning devices as were required under the Federal Boiler Inspection Act. The trial court's denial of appellants' motion for partial summary judgment as to the allegations that the locomotive had been negligently equipped is enumerated as error.

"The Supremacy Clause of the United States Constitution dictates that federal law preempts inconsistent state law. [Cit.] 'Pre-emption may be either express or implied, and is "compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." [Cit.]' [Cit.]" Poloney v. Tambrands, Inc., 260 Ga. 850-851(1), 399 S.E.2d 208 (1991). "[T]he power delegated to the [Interstate Commerce] Commission [ (Commission) ] by the [Federal] Boiler Inspection Act as amended is a general one. It extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances." Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 47 S.Ct. 207, 71 L.Ed. 432 (1926). The federal enactment "was intended to occupy the field. The broad scope of the authority conferred upon the [C]ommission leads to that conclusion. Because the standard set by the [C]ommission must prevail, requirements by the states are precluded, however commendable or however different their purpose. [Cits.]" Napier v. Atlantic Coast Line R. Co., supra at 613, 47 S.Ct. at 210.

It follows, therefore, that the trial court erred in failing to grant partial summary judgment in favor of appellants as to the allegation that the locomotive was negligently equipped. Appellants "complied as a matter of law with [their] duty to provide locomotive warning devices when [they] met the requirements of [the federal regulations]." Marshall v. Burlington Northern, 720 F.2d 1149, 1153(7) (9th Cir.1983).

3. Appellants enumerate as error the trial court's failure to grant partial summary judgment as to the allegation of negligence predicated upon operation of the train "at an excessive speed...."

"In the exercise of ordinary care, the employees of [appellants] were under a duty to operate the train at a moderate and safe rate of speed." Gay v. Sylvania Central R. Co., 79 Ga.App. 362, 367(3), 53 S.E.2d 713 (1949). At least until enactment of the Federal Railroad Safety Act of 1970 (FRSA), 45 USC § 421 et seq., the determination of what constituted a moderate and safe rate of speed was for the trior of fact. See Atlantic Coast Line R. Co. v. Hansford, 85 Ga.App. 507, 510(3), 69 S.E.2d 681 (1952). However, "[i]t is well established that Congress, through the pervasive federal regulation of railroads in the [FRSA], intended to establish nationally uniform railroad safety and preempt state regulation of railroads. [Cit.] The FRSA specifically controls the speed at which trains may operate by classifying sections of track and assigning to each classification a maximum speed limit. The track in question is classified as class four track and, according to federal regulations, the maximum train speed for class four track is 60 miles per hour. Based on the pervasive nature of federal regulation of the subject area[,] ... train speed is expressly preempted by federal law. [Since the uncontroverted] evidence [in the instant case shows] that the train [never] exceeded this federal standard, any common law or statutory negligence claim based on the train's speed is preempted by federal law. [Cit.]" Easterwood v. CSX Transp., 742 F.Supp 676, 678(3) (N.D.Ga.1990), aff'd 933 F.2d 1548 (11th Cir.1991). Thus, a state jury would not be authorized to find that a speed which was less than that authorized by the federal regulations was not a moderate and safe rate of speed.

We would note, however, that appellants' employees "were also under a duty to keep a proper lookout ahead and to warn the public of the approach of the train to the crossing, and, if it was apparent that [appellees' son] was approaching or about to use the crossing, to check the speed of the train or take whatever precautions were necessary in order to avoid injury to [him]." Gay v. Sylvania Central R. Co., supra at 367(3), 53 S.E.2d 713. Nothing in the FRSA would serve to preempt appellees' claim based upon a purported violation of this duty. See Florida East Coast R. Co. v. Griffin, 566 So.2d 1321, 1324(2-5) (Fla.App. 4 Dist.1990). Thus, if the evidence shows that appellants' employees failed to maintain a proper lookout ahead or to take any precautions after it was apparent to them that appellees' son was about to cross the tracks, the fact that the train never exceeded the speed authorized by the federal regulation would not establish a defense to appellees' recovery. "We reject the appellants' contention that the [FRSA] has preempted consideration of negligent conduct of a railroad and its agents when faced with a dangerous condition or event, notwithstanding that the acts of negligence involve a failure to reduce speed below the maximum limit established by federal law. [Cits.]" Florida East Coast R. Co. v. Griffin, supra at 1324(5).

4. With regard to the allegations of the negligent inadequacy of the warning devices at the crossing, appellants do not rely upon federal preemption. Instead, they urge that appellees have no viable claim under applicable state tort principles.

OCGA § 32-6-200 relates to the installation of protective devices at grade crossings on the state highway system, the county road systems, and the municipal street systems but, by its terms, not to the installation of protective devices at private crossings. However, this absence of private crossings from the ambit of OCGA § 32-6-200 merely shows that there is no statutory duty as to the installation of protective devices at such crossings and that railroads may not be held negligent per se as to the installation of protective devices at such crossings. It certainly does not establish that there is no common law duty as to the installation of protective devices at such crossings so that railroads may not be held liable for common law negligence with regard to the installation of protective devices at such crossings. " ' "An act or omission may amount to negligence under the particular facts and circumstances, although there is no statute so declaring." (Cit.)' " Southern R. Co. v. Ga. Kraft Co., 188 Ga.App. 623, 624(5), 373 S.E.2d 774 (1988) (a whole court case specifically authorizing the giving of a charge to the jury "that it was to decide whether [the railroad] was negligent in failing to employ additional precautions at the crossing where the collision occurred.") While "[n]on-compliance at [a private crossing] with the statutory requirements applicable to public roads established by law is not, as a matter of law, negligence per se[,] [i]t is generally for the jury to say whether under such circumstances the railroad company was negligent or not. [Cits.]" Comer v. Shaw, 98 Ga. 543, 544, 25 S.E. 733 (1896).

Appellants cite no authority for the proposition that they had no common law duty to provide warning devices because the crossing was private rather than public. It would appear that the status of the crossing as public or private is immaterial to the duty owed to those who had a right to use it. "It is generally for the jury to say whether under such circumstances the railroad company was negligent or not [at a private crossing]. [Cits.]" Comer v. Shaw, supra at 544, 25 S.E. 733. "With respect to persons rightfully using a private crossing, ... the duty of the railroad company is similar to its duty as to users of public crossings, and as to them, it must exercise reasonable or ordinary care, commensurate with the danger of the particular situation." 74 CJS, Railroads, § 713, p. 1308. Accordingly, appellants would have no less of a common law duty with regard to a private crossing than they would have with regard to a public crossing.

Appellants urge that, even if they have a duty to provide warnings at private crossings, that duty was not breached in the instant case. However, the general rule in Georgia is that "[i]t is a question for the jury as to what signals or devices should be maintained at a railroad crossing. [Cits.]" Isom v. Schettino, 129 Ga.App. 73, 75(1), 199 S.E.2d 89 (1973). Construing the evidence most favorably for appellees, the instant...

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