Dawson v. Norfolk and Western Ry. Co.

• Decision Date: 16 May 1996
• Docket Number: No. 22901,22901
• Citation: 197 W.Va. 10,475 S.E.2d 10
• Court: West Virginia Supreme Court
• Parties: Leslie O. DAWSON, Plaintiff Below, Appellee, v. NORFOLK AND WESTERN RAILWAY CO., Defendant and Third Party Plaintiff Below, Appellant. Doug E. COLLINS and Mark S. Hatfield, d/b/a Eagle Trucking Co., Defendants Below, Appellees, v. PEN COAL CORPORATION, Third Party Defendant Below, Appellee.

Page 10

475 S.E.2d 10

197 W.Va. 10

Leslie O. DAWSON, Plaintiff Below, Appellee, v. NORFOLK AND WESTERN RAILWAY CO., Defendant and Third Party

Plaintiff Below, Appellant.

Doug E. COLLINS and Mark S. Hatfield, d/b/a Eagle Trucking

Co., Defendants Below, Appellees, v. PEN COAL CORPORATION, Third Party Defendant Below, Appellee.

No. 22901.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 1996.

Decided May 16, 1996.

[197 W.Va. 12] Syllabus by the Court

1. " 'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

2. "Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

3. "Roughly stated, a 'genuine issue' for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed "material" facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law." Syllabus Point 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995).

4. " 'It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.' Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 3. Syllabus Point 2, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981)." Syllabus Point 1, Payne v. Weston, 195 W.Va. 502, 466 S.E.2d 161 (1995).

Marc E. Williams, Robert L. Massie, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, for Norfolk and Western Railway Co.

D.C. Offutt, Jr., Scott W. Andrews, Offutt, Eifert, Fisher, Duffield & Nord, Huntington, for Pen Coal Corporation.

PER CURIAM:

Norfolk and Western Railway Company appeals a summary judgment order of the Circuit Court of Wayne County dismissing its third party complaint against Pen Coal Corporation. On appeal, the railway asserts that material issues concerning the responsibility for the underlying October 8, 1991 accident between a train and a coal truck preclude the granting of summary judgment. Because our examination of the record shows unresolved questions of responsibility created by disputed material facts, we reverse the order of the circuit court and remand the case for further proceedings.

I. BACKGROUND

Although the underlying accident did not occur until 1991, the relationship between the railway and Pen Coal Corporation (hereinafter Pen) began when P & C "Bituminous Coal," Inc., a predecessor of Pen, purchased property adjacent to U.S. Route 52 in Wayne County, West Virginia for a coal processing plant. Access from U.S. Route 52 to Pen's property requires crossing a heavily used double track of the railway. When Pen purchased the property, the crossing to access the property was suitable for a small, private farm. Because the existing crossing was too narrow for Pen's purposes, numerous improvements, including widening of the crossing and placing of automatic gates and lights, were needed to upgrade the crossing.

On March 3, 1988, the railway and Pen entered an agreement concerning the parties' respective responsibilities concerning the crossing (hereinafter the agreement). The agreement provided that in return for the payment of a nominal annual fee, the railway granted Pen "permission and license to upgrade, maintain and use said crossing...." Under the agreement, Pen would pay for upgrading the crossing with "[a]ll work ... performed, at the option of [the] Railway." Although the maintenance of the crossing was under the railway's supervision, the railway's maintenance did "not relieve Licensee [Pen] of any liabilities and responsibilities" assumed under the agreement. In section 3 of the agreement, Pen agreed that neither it nor any one using the crossing under Pen's license would block the crossing or "in any manner interfere with the free and uninterrupted use by the Railway of its right-of-way and railroad track(s)," and in section 5, Pen agreed to "require all vehicles about to use said crossing(s) to come to a full stop before crossing and not proceed until the way is clear and safe." Under section 7 of the agreement, Pen agreed to indemnify the railroad for any damages arising out of the license "unless [ (1) ] such cause is the result of the sole negligence of the Railway ..., or [ (2) ] the result of the joint negligence of the Railway and an independent third party in which the Licensee [Pen] did not contribute...." ¹ Section 8 of the agreement required Pen to have comprehensive general liability insurance.

At the time of the accident, the crossing was equipped with a warning sign and automatic flashing lights, bells and gates. The parties agree that these warning devices were functioning at the time of the accident. Because of the plant's unique configuration, the usual traffic pattern of driving on the right side of a road was reversed by Pen for crossing the railway's tracks; that is, vehicles entered the plant on the left side and exited on the left side of the crossing. For about the first year of Pen's plant operation, a normal right side traffic pattern was used at the crossing; however, because of Pen's plant expansion, vehicles were required to use the left side of the crossing to enter and exit the plant. The railway installed the warning gates when the normal right side traffic pattern was followed. Thus the crossing's automatic gates, designed for normal traffic patterns, descended and blocked the right side of the crossing even through traffic had to approach Pen's plant from the left; neither did the automatic gates extend over the entire crossing.

According to James Beckley, dock manager for Pen, sometime in 1990, the railway contacted Pen because a "few" of the gates arms were getting broken requiring the railway to make repairs or readjust the gates. In response to the railway's concerns, Pen posted an additional sign on the right side of the road stating "Do not cross tracks when gates are down." On January 10, 1990, Pen also drafted and circulated a notice imposing penalties on drivers and their companies for violating crossing rules. However, Pen did not send this notice to Mark Hatfield, the owner of the trucking company involved in the underlying accident.

On October 8, 1991, an accident occurred at the Pen crossing involving a locomotive owned by the railway and operated by Leslie O. Dawson, an engineer employed by the railway and the plaintiff in the case below, and a coal truck owned by Mark S. Hatfield d/b/a Eagle Trucking Company and operated by Doug E. Collins. Although there is some disagreement about the circumstances leading to the accident, the parties agree that the locomotive struck the rear of the truck. Mr. Dawson and Michael Smith were in the lead locomotive and both were injured in the accident. ² Two other railway employees riding in the second locomotive and Mr. Collins were not injured. The train, which originated in Williamson, consisted of three locomotives, about twelve loaded rail cars and about one hundred thirteen empty rail cars. Immediately before the accident, the train was traveling in a northerly direction at about forty miles per hour on the track nearest to U.S. Route 52. The train's headlight was on at its brightest setting, and because the track around Pen's crossing is straight, the railway employees had a clear view of the crossing. When the train was approximately 2,000 feet from the crossing, Mr. Dawson saw the coal truck and began sounding the train's whistle and bell.

The fully loaded coal truck driven by Mr. Collins was travelling in a northerly direction along U.S. Route 52. Before turning left to go into Pen's plant, the coal truck pulled onto the right berm of U.S. Route 52 where Mr. Collins removed the truck's tarp covering. Mr. Collins then proceeded to turn left, crossing U.S. Route 52 toward Pen's plant. There is conflicting testimony about the circumstances immediately before the accident. Mr. Collins testified that he did not stop before crossing the tracks or look for a train, but was in constant motion from when he removed the tarp until he was struck by the train. Mr. Collins testified that no warning occurred until he got his tractor on the tracks and "I knowed [sic] then to go on because I couldn't stop and back up."

Mr. Dawson, the train's engineer, testified that he first saw the truck when it was turning off U.S. Route 52 into Pen's plant. Mr. Dawson said when the truck got to the crossing "it looked like he stopped" and the automatic gate was either down or descending. Apparently there is sufficient room for a coal truck to stop at an angle before the crossing without blocking either U.S. Route 52 or the tracks.

Mr. Dawson said the truck only stopped for a few seconds and then went around the gate. Mr. Dawson estimated that when the truck went around the gate, the train was 1500 feet away. Mr. Dawson said the truck...