Furlough v. Union Pacific R.R. Co.

• Decision Date: 31 August 2000
• Docket Number: No. 33,658-CA.,33,658-CA.
• Citation: Furlough v. Union Pacific R.R. Co., 766 So.2d 751 (La. App. 2000)
• Parties: Juanita FURLOUGH, Judiana Cotton, Denise Grayson, Andrew Furlough, Jr. and Gary Furlough, Plaintiffs-Appellants, v. UNION PACIFIC RAILROAD COMPANY, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

766 So.2d 751

Juanita FURLOUGH, Judiana Cotton, Denise Grayson, Andrew Furlough, Jr. and Gary Furlough, Plaintiffs-Appellants, v.UNION PACIFIC RAILROAD COMPANY, et al., Defendants-Appellees.

No. 33,658-CA.

Court of Appeal of Louisiana, Second Circuit.

August 31, 2000.

Rehearing Denied September 21, 2000.

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McKernan Law Firm by Joseph J. McKernan, Baton Rouge, Thomas & Hardy by Elizabeth S. Hardy, Lake Charles, Counsel for Appellants.

Hudson, Potts & Bernstein, L.L.P. by W. Craig Henry, Monroe, Fraser, Morris & Wheeler, L.L.P., by David A. Fraser, Lake Charles, Counsel for Appellee, Union Pacific Railroad Company.

Nanci S. Summersgill, Monroe, Counsel for Appellee, The City of Monroe.

Before STEWART, CARAWAY & PEATROSS, JJ.

PEATROSS, J.

This appeal arises out of an automobile/train accident which occurred at the S. 24th Street railroad crossing in Monroe, Louisiana.On January 6, 1995, a vehicle driven by Andrew Furlough collided with a Union Pacific Railroad Company¹ locomotive.Mr. Furlough died shortly after the collision.His wife and four children² brought the present action against UP; John Doyle Watson, the train's engineer; the City of Monroe; and ABC, DEF, and GHI Insurance Companies.At the close of Plaintiffs' case, the trial court granted an involuntary dismissal in favor of the City of Monroe.³After a nine-day jury trial, the jury rendered a verdict in favor of Defendants UP and John Doyle Watson(collectively referred to herein as "UP").Plaintiffs now appeal, assigning ten errors.For the reasons stated herein, we affirm.

FACTS

The Accident

At approximately 8:00 a.m. on January 6, 1995, Mr. Furlough was traveling in a westerly direction at approximately 20 miles per hour on S. 24th Street in Monroe.As he crossed the railroad tracks that intersect S. 24th Street, his Ford Tempo was struck by a train owned by UP.⁴Mr. Furlough was familiar with the crossing, having traversed it numerous times.The train, which consisted of 2 engines and 74 cars loaded with grain, was traveling in a southerly direction at approximately 28 miles per hour.⁵The federal speed limit for this track is 40 miles per hour.The weather conditions were not optimal—light rain and cloudy/foggy with low visibility.

The train's engineer, John Doyle Watson, and conductor, Benny Joe Bowman, testified that they did not see Mr. Furlough's vehicle until immediately before impact.The train's brakes, therefore, were not applied, until the moment of impact.At that point, Mr. Furlough's vehicle was knocked clear of the tracks.Mr. Watson testified that, for that reason, he did not immediately apply the train's emergency brakes, but, rather, applied the general locomotive brakes first, followed by the emergency brake.Mr. Watson testified that he applied the brakes in this manner in order to stop the train in the safest way possible.According to Mr. Watson, had he immediately applied the emergency brake, he would have created the risk of derailing the train and possibly causing multiple accidents.

The train was equipped with an event recorder on the lead engine.Several witnesses testified for the various parties regarding analysis and interpretation of the event recorder data including when the different brake systems were applied and whether the horn was properly sounded.Likewise, the record reveals conflicting testimony from the train crew and eye witnesses as to whether the horn was sounded in accordance with La.R.S. 32:168, which requires that the horn be sounded at least one quarter of a mile, or 1320 feet, from the crossing.Additionally, the train was equipped with ditch lights⁶, which were not working at the time of the collision.

The Crossing

At the time of the collision, the crossing was marked with a circular yellow and black advance warning sign, white pavement markings and the standard reflectorized railroad cross buck sign.The part do not dispute that the signage at the crossing was in compliance with the Manual of Uniform Traffic Control Devices ("MUTCD").According to Plaintiffs, however, several hazards existed at the crossing, including parallel roadways, the uneven pavement at the crossing and sight obstructions in the form of buildings adjacent to the crossing and vegetation.Regarding the sight obstructions, at 180 feet from the crossing, Mr. Furlough could see 24 feet down the track—looking north, the direction from which the train was approaching.Additionally, there have been six previous accidents at this crossing between 1976 and 1995, the most recent one from the time of this collision was in 1987.

PROCEDURAL BACKGROUND

In October 1997, the trial court issued a pretrial order setting the date by which all dispositive motions must be filed by the parties; all such motions were to be filed by March 16, 1998.These motions were to be heard by the trial court on March 31, 1998; and the trial was scheduled to commence on August 24, 1998.On March 16, UP filed a motion for partial summary judgment and, alternatively, a motion in limine raising the issue of federal preemption⁷ of Plaintiffs' claims of inadequate warning devices at the crossing and excessive train speed.Plaintiffs also filed a motion for partial summary judgment seeking a ruling that UP had breached its duty of ordinary care by failing to provide a safe crossing or taking additional safety measures at the crossing due to its extra-hazardous nature.On August 10, 1998, the trial court, in a written order, denied all parties' motions for summary judgment.The order did not address UP's alternative motion in limine regarding the exclusion of evidence concerning adequacy of warning devices or excessive speed.On August 20, 1998, UP filed additional motions in limine setting forth 21 areas of evidence it sought to exclude, including evidence pertaining to the issues of federal preemption of the adequacy of warning devices and excessive train speed, which had been raised in UP's previous motion for partial summary judgment and alternative motion in limine.Additionally, in the August 20th motion in limine, UP asserted the federal preemption of, and sought to exclude evidence of, Plaintiffs' claims concerning obstructive vegetation; defective equipment (ditch lights); failure to warn by virtue of the inoperative equipment; and audibility of the train's whistle.The City of Monroe also filed a motion in limine on August 20, 1998; and Plaintiffs filed a motion in limine on August 24, 1998, the first day of trial.

The trial court ultimately granted UP's motion in limine regarding the adequacy of warning devices, excessive train speed and inoperative ditch lights, finding that such issues were preempted by federal law.The trial court denied UP's motion in limine regarding preemption of obstructive vegetation and audibility of the train's whistle.Much of Plaintiffs' argument on appeal concerns the propriety of the trial court's consideration of these motions filed by UP since the affirmative defense of preemption was not pled in UP's answer and the fact that the motion was filed one working day prior to trial.Additionally, Plaintiffs challenge the substantive rulings involving the application of federal preemption.We will address the assignments of error dealing with UP first, beginning with a discussion of the procedural aspect of Plaintiffs' argument, followed by a discussion of the substantive issue of federal preemption (this discussion includes Plaintiffs' assignments of error numbers one through four).Plaintiffs' remaining assignments will then be addressed in order of assignment, with the exception of assignment of error number six which concerns the granting of an involuntary dismissal in favor of the City of Monroe—this assignment will be discussed last.

DISCUSSION

Consideration of UP's motion in limine filed on August 20, 1998

Plaintiffs contend that the issue of federal preemption is an affirmative defense which should have been raised in UP's answer.According to Plaintiffs, motions in limine concerning affirmative defenses should only be granted as the result of a previous ruling by the trial court on the affirmative defenses.Since the only issue of preemption raised in UP's answer concerned the adequacy of warning devices, Plaintiffs assert that the trial court's consideration of, and ruling on, the subsequent motions in limine was error.We find no merit to Plaintiffs' argument.

We agree that federal preemption is an affirmative defense, which, under La.C.C.P. arts. 1003 and 1005, should be pled in a defendant's answer.Cooper v. Borden, 30,292(La.App.2d Cir.2/25/98), 709 So.2d 878.Failure to so plead an affirmative defense, however, does not automatically preclude the application of the defense in all cases.For example, La.C.C.P. art. 1154 provides that pleadings may be enlarged by evidence adduced without objection, even if such evidence concerns an affirmative defense not pled in the answer.Cooper, supra.The purpose of the pleading requirement for affirmative defenses is to provide plaintiffs with adequate notice of the nature of any defenses.Cooper, supra.In Cooper, the defense of federal preemption was raised for the first time on appeal.Refusing to find that the pleadings had been enlarged to include such affirmative defense, a panel of this court stated that "[a]t no time during the trial or in any pleading did Borden argue that it was immune from liability."The casesub judice stands in marked contrast to cases such as Cooper, wherein the plaintiff has had no indication that a defendant planned to raise a certain affirmative defense.Indeed, UP raised the issue of federal preemption by motions as early as March 16, 1998, more than five months prior to trial.Plaintiffs vigorously defended against the various motions asserting federal preemption prior to trial, and at no time did they voice an objection to UP's raising the issue of federal...