Collins v. CSX Transp., Inc.

• Decision Date: 15 March 1994
• Docket Number: No. 9216SC420,9216SC420
• Court: North Carolina Court of Appeals
• Parties: William Robert COLLINS, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., T.W. Culpepper, Seaboard System Railroad, Inc., John Doe Railroad Companies, John Doe Railroad Operator, M.O. Williams, and D.W. Hardy, Defendants-Appellees.

Page 150

441 S.E.2d 150

114 N.C.App. 14

William Robert COLLINS, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., T.W. Culpepper, Seaboard System Railroad, Inc., John Doe Railroad Companies, John Doe Railroad Operator, M.O. Williams and D.W. Hardy, Defendants-Appellees.

No. 9216SC420.

Court of Appeals of North Carolina.

March 15, 1994.

Rand, Finch & Gregory, P.A. by Thomas Henry Finch, Jr., Fayetteville, for plaintiff-appellant.

Maupin Taylor Ellis & Adams, P.A. by John C. Millberg and Frank J. Gordon, Raleigh, for defendant-appellees.

JOHN, Judge.

In this personal injury action, plaintiff appeals a judgment in favor of defendants based upon a jury verdict finding him contributorily negligent. He contends the trial court erred by (1) granting defendants' motion in limine to exclude certain evidence; (2) refusing to submit the issue of defendants' gross negligence to the jury; and (3) permitting defendants, post-verdict, to amend their pleadings to allege an affirmative defense. While we find one of plaintiff's arguments persuasive, we nonetheless hold the trial court committed no prejudicial error.

At approximately 9:20 a.m. on 12 November 1986, plaintiff was operating his pick-up truck on a roadway near the town of Rennert, North Carolina, at the location of an intersecting rural railroad crossing. The truck and a freight train operated by defendant CSX Railroad collided, causing plaintiff extensive bodily injury. It is uncontroverted that the train crossing was marked only by a crossbuck warning sign; there were no flashing lights, pavement markings or other warning signals.

Plaintiff's evidence tended to show the weather was rainy and foggy at the time of the accident and that these inclement conditions, coupled with foliage growing near the tracks, obscured his view of the oncoming train. Plaintiff testified he saw the reflection of the train's headlights immediately before impact. However, neither plaintiff nor a motorist following his truck heard the train sound a warning signal.

Defendants' evidence indicated there were no significant visual obstructions in the immediate vicinity of the crossing. Cross-examination of plaintiff's expert witness in traffic safety further revealed that a motorist within 75' of the crossing would have had a virtually unlimited view of any oncoming train even if the tracks were overgrown with foliage as contended by plaintiff.

Two CSX employees on the train at the time of the accident testified for defendants. According to defendant locomotive engineer T.W. Culpepper, the train was traveling at the authorized speed limit of 70 m.p.h. at the time of the accident, and he was blowing the whistle, ringing the bell, and burning the headlight as the train approached the crossing. Brakeman David W. Hardy also stated the whistle was sounded. In addition, both men testified Culpepper made an emergency brake application in an attempt to avoid the accident.

Ms. Barbara Burnette, who lived near the accident site, stated she heard the train whistle blowing immediately before the accident. A State Trooper who investigated the collision indicated he specifically looked for visual obstructions and that both plaintiff and the locomotive engineer had unobstructed views of the crossing.

The trial court submitted the issues of negligence, contributory negligence and damages to the jury. The jury found defendant negligent and plaintiff contributorily negligent and the trial court entered judgment in favor of defendants.

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The crux of plaintiff's appeal is his contention that the railroad crossing in question was "extrahazardous" and that defendant railroad failed to take adequate precautions to diminish this danger. Therefore, plaintiff insists, defendant railroad was grossly negligent and the trial court erred by refusing to charge the jury on this theory of liability.

I. Federal preemption

Plaintiff's argument rests, in large part, upon the railroad being charged with an affirmative duty to signalize the crossing at issue. On the day of trial, the trial court granted defendants' motion in limine, filed five days previously, to exclude all evidence relating to "any allegations that the [defendant] railroad had a duty to signalize the crossing in question." During the hearing on this motion, defendants argued the railroad's common law duty to signalize the crossing had been preempted by federal law, specifically by the "Federal Railroad Safety Act of 1970," 45 U.S.C. §§ 421-447 (1992). The trial court agreed and allowed the motion. We now examine that ruling.

Whether or not federal legislation preempts comparable state law ordinarily is resolved by ascertaining congressional intent; state law is preempted if Congress intended to do so. English v. General Electric Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2274-75, 110 L.Ed.2d 65, 74 (1990). Preemption occurs in three circumstances. First, where Congress has explicitly provided that state law is preempted. Id. at 79, 110 S.Ct. at 2275, 110 L.Ed.2d at 74. Second, in the absence of express language, where Congress has intended the federal government should exclusively occupy a particular field. Id. Such intent can be inferred where there exists:

a "scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," or where an Act of Congress "touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject."

Id. at 79, 110 S.Ct. at 2275, 110 L.Ed.2d at 74 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947)). Third, State law is preempted to the extent it actually conflicts with federal law. English, 496 U.S. at 79, 110 S.Ct. at 2275, 110 L.Ed.2d at 74.

Our law places a duty upon railroads "to give to users of the highway warning, appropriate to the location and circumstances, that a railroad crossing lies ahead." Cox v. Gallamore, 267 N.C. 537, 541, 148 S.E.2d 616, 619 (1966); see also N.C.G.S. § 62-224 (1989). Where the crossing is "extrahazardous," active or mechanical warnings may be required. See Dixon v. CSX Transp., Inc., 990 F.2d 1440, 1449, 1453, cert. denied, 510 U.S. 915, 114 S.Ct. 305, 126 L.Ed.2d 252 (1993). " '[M]echanical warnings ordinarily are required only at crossings so dangerous that prudent persons cannot use them with safety unless extraordinary protective means are used.' " Price v. Seaboard R.R., 274 N.C. 32, 46, 161 S.E.2d 590, 600 (1968) (quoting 74 C.J.S. Railroads § 727(a)).

The Federal Government has, however, entered the field of railroad crossing safety by virtue of the "Federal Railroad Safety Act of 1970" (the Act). 45 U.S.C. § 433 (1992). Section 434 of the Act specifically addresses the question of federal preemption and provides:

The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

45 U.S.C. § 434. Since passage of the Act, several federal regulations have been promulgated which concern railroad crossing safety; these include: 23 C.F.R. §§ 646 pt. B, 655 pt. F, and 924 (1993).

This Court has held the foregoing federal legislation does not completely preempt the field of railroad safety and therefore North Carolina may "continue to exercise safety jurisdiction over local safety hazards." State ex rel. Utilities Comm'n. v. Seaboard Coast Line R.R., 62 N.C.App. 631, 640, 303 S.E.2d 549, 555, disc. review denied and appeal dismissed, 309 N.C. 324, 307 S.E.2d 168 (1983). While Seaboard Coast did not concern the signalization of railroad crossings--a topic explicitly covered by the federal regulatory scheme--we nevertheless hold this common-law duty was also not preempted.

Recently, the U.S. Supreme Court held a railroad's tort law (state) duty to signalize railroad crossings is preempted only to the extent either 23 C.F.R. §§ 646.214(b)(3) or (4) has application. CSX Transp. Inc., v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Briefly summarized, these Code sections concern railroad crossing signalization where "federal funds participate in the installation of warning devices." Easterwood, 507 U.S. at ----, 113 S.Ct. at 1741, 123 L.Ed.2d at 401. In the case sub judice, there is no indication federal funds were used in connection with the grade crossing at issue. Accordingly, the trial court erred by granting defendants' motion in limine (thereby excluding all evidence relating to defendant railroad's duty to signalize the crossing) on the basis of federal preemption.

We note plaintiff has also argued that the type of federal preemption at issue constituted an affirmative defense. See Johnson v. Armored Transport of California, Inc., 813 F.2d 1041, 1043-44 (1987) (A "choice-of-forum" preemption argument concerns subject matter jurisdiction and is therefore non-waiveable; however, a preemption argument involving only "choice-of-law" must be asserted as an affirmative defense). Ordinarily, an affirmative defense which is not specially pled is waived. Duke Univ. v. St. Paul Mercury Ins. Co., 95 N.C.App. 663, 673, 384 S.E.2d 36, 42 (1989).

Because defendants did not specially plead federal preemption, plaintiff contends this "def...