Dillard v. Norfolk Southern Ry. Co.
| Decision Date | 28 August 1998 |
| Citation | 735 So.2d 445 |
| Parties | Johnnie L. DILLARD, individually and as personal representative of the estate of Nathaniell Dillard, deceased v. NORFOLK SOUTHERN RAILWAY COMPANY and Wallace Dobbs. |
| Court | Alabama Supreme Court |
Leila H. Watson of Cory, Watson, Crowder & DeGaris, P.C., Birmingham, for appellant.
Crawford S. McGivaren, Jr., and Steve A. Tucker of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham; and Robert C. Dillon of Merrill, Porch, Dillon & Fite, P.A., Anniston, for appellees.
I respectfully dissent from the majority's decision to affirm without opinion the trial court's summary judgment for the defendants. In my view, this case has several questions of fact that make a summary judgment inappropriate, and, moreover, federal law does not preempt the plaintiff's claims, as the trial court held.
This case involves a collision in Calhoun County between a tractor-trailer truck driven by Nathaniell Dillard and a Norfolk Southern Railway Company train; the collision resulted in Dillard's death. Dillard's widow, Johnnie L. Dillard, sued the Railroad and its engineer, Wallace Dobbs, in her personal capacity and as personal representative of the estate of Nathaniell Dillard.
The following facts are undisputed: On February 19, 1993, at approximately 1:50 p.m., Dillard was driving, at about 15 m.p.h., southbound on County Road 45, also known as DeArmanville Road, in Calhoun County. Although the sky was cloudy, the weather conditions were otherwise clear. As Dillard approached the crossing where County Road 45 and the Railroad's main lines intersect (the DeArmanville crossing), he passed a sign indicating that a stop sign was ahead and passed the advance warning sign of "R × R" painted on the road. At the crossing itself, the County had placed a stop sign some 40 feet from the track, where the road takes a 90-degree right turn toward the tracks. Also, railroad crossbuck signs were on both sides of the railroad tracks. Several trees stood to Dillard's right, the direction from which the train approached.
According to the Railroad's conductor and engineer, who were the only eyewitnesses to the collision, the train approached the crossing from behind Dillard, because the tracks run parallel with the road. They said that when Dillard got closer to the tracks, he slowed to approximately 5 m.p.h. to negotiate the unusual sharp right turn, but did not come to a complete stop at the stop sign. Then, they say, Dillard straightened up to proceed across the tracks and as he attempted to cross the tracks the train hit his truck.
The DeArmanville crossing has two main railroad lines. It is also reported to be a very dangerous crossing because, from 1976 through April 1993, 18 accidents occurred there, including 4 involving fatalities. The Railroad had knowledge of these accidents. Furthermore, the Railroad's engineer, who on the day of the collision was responsible for blowing the train's whistle, acknowledged that he had experienced several "near misses" at the DeArmanville crossing, some so significant that he had felt compelled to report them.
To make the crossing safer, the Federal Highway Administration (FHWA) had provided funding for three projects to install warning devices at the crossing. Project 1, completed in 1978, involved the installation of two "no passing zone" signs and two "R × R" pavement markings. No diagnostic team1 reviewed this project. In Project 2, completed in 1991, a few hundred federal dollars were used to paint a double centerline and "no passing" markings on the pavement on both sides of the crossing.
In 1988, before Project 2 was undertaken, the groundwork for Project 3 was begun, when a diagnostic team, including employees of the Railroad, studied the crossing. The team recommended to the Secretary of the United States Department of Transportation and to the Alabama Department of Transportation the installation of active warning devices.2 On August 7, 1989, the FHWA selected the crossing for the installation of active warning devices.3 The Railroad's engineers began formulating plans for this project in 1991, and the federal funds were approved in 1992. However, these warning devices were not completely installed until April 26, 1993, more than two months after Dillard's collision with the train on February 19, 1993. Also as a part of Project 3, the trees at the crossing were removed.
The parties presented conflicting testimony regarding critical aspects of this case. The conductor and the engineer both stated that the engineer sounded the train's whistle as they approached the crossing.4 However, the plaintiff introduced the affidavit of Tommy Gee, who stated that at the time of the accident he was driving nearby, with his window halfway down and his radio off. He also stated that he was very near the accident but that he never heard the whistle. Furthermore, the engineer testified that he applied the train's brakes, but the conductor stated that he did not recall any braking and that the engineer told him that he did not apply the train's brakes.
The other conflicting evidence concerns Dillard's alleged contributory negligence. The conductor and the engineer both testified that Dillard caused the accident by failing to stop at the crossing. However, the plaintiff produced the affidavit of an expert who stated that Dillard could not have seen the train coming even if he had stopped, because of the sharp curve in the road at the crossing, the distance of the stop sign from the crossing, the obstruction of his view by the trees, the fact that he was driving a tractor-trailer, and the fact that the train approached from behind him.
In her complaint, the plaintiff made the following allegations: (1) that the defendants, the Railroad and the engineer, as its agent, negligently or wantonly operated the train on February 19, 1993; (2) that the defendants negligently or wantonly constructed, maintained, and operated the crossing and the intersection; and (3) that the defendants negligently or wantonly failed to install proper warning devices at the intersection. The trial court entered a summary judgment in favor of the Railroad and the engineer on all claims, and the plaintiff appealed. The majority affirms the judgment. However, for the reasons discussed below, I believe the summary judgment should be reversed and the case remanded.
The principles of law applicable to a motion for summary judgment are well settled. For the trial judge to grant a motion for summary judgment, he or she must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
In reviewing a summary judgment, we apply the same standard the trial court applied when it relied on the summary judgment motion. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is further subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).
The plaintiff argues that she presented substantial evidence creating a genuine issue of material fact as to whether the engineer, as the Railroad's agent, negligently failed to sound the whistle. I agree. The plaintiff produced the affidavit of Tommy Gee, who stated that he was near the crossing at the time of the collision and did not hear any whistle blasts. Therefore, a jury could have found that the engineer breached a duty owed to Dillard.
The defendants, however, argue that this claim is barred because, they claim, Dillard was contributorily negligent as a matter of law because he failed to stop at the stop sign at the crossing, and because this failure caused the collision. The trial court agreed with the defendants. For several reasons, I believe that conclusion is incorrect.
First, the issue of contributory negligence is generally one for the jury to determine. Adams v. Coffee County, 596 So.2d 892, 895 (Ala.1992). Second, to prove that Dillard was contributorily negligent as a matter of law, the defendants had the burden of proving that there was no issue of material fact (1) as to whether Dillard failed to exercise reasonable care (i.e., as to whether he failed to stop, look, and listen) and (2) as to whether "that failure was the proximate cause of the accident." Norfolk S.R.R. v. Thompson, 679 So.2d 689, 692 (Ala.1996) (citing Slade v. City of Montgomery, 577 So.2d 887, 892 (Ala.1991)).
I believe the plaintiff produced substantial evidence indicating that Dillard's failure to stop did not proximately cause the collision. The plaintiff tendered an expert's affidavit. The expert expressed the opinion that the DeArmanville crossing was very dangerous. He also...
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