Deaver v. Missouri Pacific R. Co.
| Decision Date | 29 November 1993 |
| Citation | 968 F.2d 19 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before McKAY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and EISELE *, Senior District Judge
G. THOMAS EISELE, Senior District Judge, Sitting by designation.
This diversity civil action for negligence brought by Mr. Danny Deaver as the personal representative of the estates of his deceased parents against the defendant railroad company was removed from the Oklahoma District Court to the U.S. District Court for the Northern Division of Oklahoma. Summary judgment was then entered in favor of the defendant and this appeal followed. We affirm.
The case turns on the proper interpretation and application of Oklahoma's common law "occupied crossing rule" which is most frequently stated as follows:
"Ordinarily, the presence of a train or railway cars on a crossing, whether moving or stationary, is sufficient notice to a driver of a vehicle, on the highway of such obstruction and, in the absence of unusual circumstances, the operating railway company is not under any duty to provide any other notice or warning."
Kansas, Oklahoma & Gulf Ay. Co. v. Painter, 333 P2d 547, 548 (Okla.1958).
The important facts, as stated in appellant's brief, are:
On November 20, 1989, the decedents, Walter S. Deaver and Della J. Deaver, were travelling east, at night, on Highway 69A, near Pryor, Oklahoma. At approximately 8:35 p.m., the Deaver's automobile struck a stationary flatbed railcar at a crossing owned and maintained by MoPac. There was no notice of an imminent hazard given to Walter Deaver other than the actual presence of the train. MoPac's railroad crossing had not been used in two and one-half years and had not been maintained in over five years. It was overgrown with weeds, and the crossbuck warning sign had fallen down. There were several washed-out areas at the crossing, and the crossing's timbers had deteriorated. The accident occurred approximately three hours after sundown. The crossing was either totally dark or was very dimly lighted. The decedents left no skidmarks.
On the night the Deavers were killed, MoPac's train blocked the crossing while the train's crew executed a switching operation. The switching operation could have been performed during daylight hours. The switching operation could have been performed on the Escoa Plant adjacent to U.S. Highway 69A without obstructing traffic. MoPac's train had been obstructing the crossing approximately ten minutes prior to the accident in question and an empty flatbed railcar was left blocking the highway. MoPac's employees took no actions to set out fusees, lights, or to act as flagmen.
Other uncontroverted facts are:
The decedents were travelling to their home from the grocery store at the time of the accident.
The train was stationary over the crossing at the time of the collision.
At the time of the accident, it was night, the weather was clear, and the roadbed was dry.
There was a standard Oklahoma Department of Transportation advance warning sign.
There were pavement markings on the approach to the crossing.
The railroad crossbuck on the side from which the Deaver vehicle approached was down.
It further appears that the legal speed limit on the highway at the time of the accident was 55 miles per hour. The investigating officer estimated the speed of the Deaver's vehicle at from 40 to 45 miles per hour at impact.
The plaintiff also asserts violations by the defendant of certain laws, regulations, internal rules, and industry standards, among which are the following:
The crossing was not maintained in a "proper and safe condition" and thus was in violation of both industry standard and Oklahoma state law.
The train crew did not take "reasonable precautions for the safety of the motoring public" in violation of industry standards and appellees' own rule. The train crew created an ultrahazardous situation by blocking the crossing at night and failing to take reasonable precautions to warn the motoring public of the situation or otherwise lessen the danger.
MoPac failed to provide a sufficient number of train crewmen to safely perform the switching job in regard to motorists' safety.
The northernmost train car was not equipped with a light, in violation of industry standard.
MoPac blocked the crossing for a time in excess of five minutes when there was no reason to do so, thereby violating industry standard and appellees' own rule.
The Oklahoma "Occupied Crossing Doctrine" purports to recognize that "unusual circumstances" might occur, or be present, which could require additional precautions on the part of the railroad, i.e. that would remove the absolute bar of the basic doctrine. Plaintiff asserts such unusual circumstances were present here, to-wit:
The crossing had been abandoned for two and one-half years and had not been maintained in over five years.
It was undisputed that one of the train's engines did not have a properly working headlight.
According to the investigating Oklahoma Highway Patrol officer, the decedent's vehicle was travelling 10-15 miles per hour below the legal speed limit at the time of impact.
The appellees' switching operation did not require that the crossing be blocked, but rather could have been performed completely off the highway right-of-way. This was a violation of MoPac's own policy.
Additionally, there was evidence which constituted unrebutted proof that the appellees had failed to comply with Oklahoma statutes regarding statutorily-imposed duty to protect the motoring public. Specifically:
A. Failure to maintain a crossbuck.
B. Failure to maintain the crossing properly.
Finally, there was uncontroverted evidence that appellees' actions, which resulted in the death of the Deavers, was in violation of appellee's own company rules and/or policy, specifically:
Appellees blocked the crossing in excess of five minutes when there was no reason to do so; this was a violation both of industry standard and appellees' own rules regarding blocking a crossing.
(Appellant's Brief, p. 14-15.)
The U.S. Magistrate Judge focused in on the "unusual circumstances" contention. He concluded:
"Oklahoma courts have expressly stated that the same conditions here asserted by the Plaintiff as being unusual, are in fact, not at all unusual but 'conditions common to those who travel on the highway'. Therefore, Plaintiff's contention that the Defendant was negligent by not giving additional warning must be found to be unsupported. "Plaintiff further contends that the railroad crossing is ultra-hazardous, thereby preventing the application of the Occupied Crossing Doctrine. In some cases the term extrahazardous is used in relation to the Occupied Crossing Doctrine. However, when this term is used it does not describe an additional exception to the 'unusual circumstances exception. Rather the term 'extrahazardous' when used, is used interchangeably with 'unusual circumstances'. The ultrahazardous consideration has not been applied to an Occupied Crossing case. Courts have, however, considered the question of extra hazardousness circumstances in situation where the automobile and the train arrive at the crossing simultaneously. In situations such as these the Occupied Crossing Doctrine has not been applied, the courts finding that the doctrine requires that the railroad car have been on the track before the automobile collides with it. Since these facts do not contemplate a 'simultaneous' meeting of the car and train no further discussion is necessary."
The U.S. District Judge upheld the Magistrate Judge's recommendation on this issue in the following language:
In the lower court, appellant argued that the enactment by the Oklahoma legislature of the Comparative Negligence law in 1973 abrogated the Occupied Crossing Rule. The Magistrate Judge dealt with this issue as follows:
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