Herold v. Burlington Northern, Inc.

• Decision Date: 06 June 1985
• Docket Number: Nos. 84-2094,84-2115,s. 84-2094
• Citation: 761 F.2d 1241
• Parties: Kenneth A. HEROLD and Janet Herold, Appellees, v. BURLINGTON NORTHERN, INC., a foreign corporation, Appellant. Kenneth A. HEROLD and Janet Herold, Appellants, v. BURLINGTON NORTHERN, INC., a foreign corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1241

761 F.2d 1241

Kenneth A. HEROLD and Janet Herold, Appellees, v. BURLINGTON NORTHERN, INC., a foreign corporation, Appellant.

Kenneth A. HEROLD and Janet Herold, Appellants, v. BURLINGTON NORTHERN, INC., a foreign corporation, Appellee.

Nos. 84-2094, 84-2115.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 16, 1985.

Decided May 2, 1985.

Rehearing and Rehearing En Banc Denied June 6, 1985.

Frank Magill, Fargo, N.D., for appellant.

John C. Hoyt, Great Falls, Mont., for appellees.

Before LAY, Chief Judge, and JOHN R. GIBSON and FAGG, Circuit Judges.

LAY, Chief Judge.

Kenneth and Janet Herold were injured when a Burlington Northern train hit their cattle truck as they crossed the railroad tracks adjacent to the Schnell Livestock Auction Market outside Dickinson, North Dakota on the afternoon of November 21, 1974. Kenneth Herold was driving the truck. He was rendered a spastic quadriplegic and suffered brain damage. His wife, Janet, also was seriously injured; breaking her collar bone, injuring her back, and suffering a concussion along with cuts and bruises over the body.

Suit was filed in September 1980, seeking damages for injuries, loss of income, Janet's loss of consortium and punitive damages. The jury returned a verdict for the Herolds against the railroad. The jury found Burlington Northern eighty percent negligent and Kenneth twenty percent negligent. Kenneth was awarded $9,425,000 for his injuries and losses. Janet was awarded $250,000 for her injuries and $2,000,000 for loss of consortium. The court, the Honorable Bruce M. Van Sickle, dismissed plaintiffs' claim for punitive damages. Kenneth's award and Janet's loss of consortium award were reduced by twenty percent.

Burlington Northern moved for judgment notwithstanding the verdict or a new trial. The motions were denied except as to Janet's consortium award. The district court ordered a new trial on the issue of damages for loss of consortium unless Janet would accept remittitur to $300,000. She refused and a new trial is pending for Janet's claim.

On appeal, the railroad presents four issues: (1) whether judgment notwithstanding the verdict should have been entered for the railroad either because the Herolds' failure to stop at the crossing was the proximate cause of the accident or Kenneth's negligence was at least equal to the railroad's negligence; (2) whether it was proper for the district court to treat an amber rotating beacon as an "appurtenance" under the Boiler Inspection Act; (3) whether it was proper for the district court to admit evidence regarding automatic crossing signal systems; and (4) whether the verdicts were excessive. The Herolds cross-appealed on three issues: (1) whether the claim for punitive damages should have been dismissed; (2) whether Janet's loss of consortium award should be reduced by the percentage of negligence assigned to Kenneth; and (3) whether it was proper for the district court to set aside the verdict and order a new trial on the issue of damages for Janet's loss of consortium.

Because we find the jury's verdicts for Kenneth and Janet's injuries are supported by substantial evidence their judgments will be affirmed. We find the district court erred in reducing Janet's loss of consortium claim by the percentage of negligence assigned to Kenneth. On Janet's claim for loss of consortium damages we find the district court's order for a new trial is interlocutory and not appealable at this time.

I. The Comparative Negligence of the Railroad and Kenneth Herold

The railroad crossing had no electronic signals. Traffic was warned only by a faded stop sign affixed to a cross-buck. No engineering study had been done by the railroad regarding effective placement of the stop sign. There was evidence that it was placed at a point where it would be ineffective to warn motorists. Besides being in a state of disrepair, the evidence showed that the stop sign was erected by Burlington Northern without authority from the North Dakota Public Service Commission. This action prevented consideration of automatic signal systems as an alternative. There was strong evidence, although disputed, that the train failed to sound its horn. The accident occurred during daylight on a clear, late fall afternoon. The locomotive's headlight was on, but an amber rotating beacon had been removed for repairs. Kenneth was driving at about ten miles per hour and did not stop before crossing the tracks. The Herolds were leaving a very busy stockyard after delivering cattle. There was evidence the crossing was extra hazardous. In overruling the railroad's motion for judgment notwithstanding the verdict, the district court provides a graphic description of the conditions existing at the time of the unfortunate collision:

The railroad knew of the disorganized traffic flow, and the converging street system of the Schnell crossing * * *. [C]onsidering the time of day, the size of the sale, and the fact that the sale yard contained parked vehicles, loading and unloading vehicles, crisscrossing men, women and children on foot * * * plus the impediments to a clear view of the track at all times, and the existence of approach streets on both sides of the railroad track * * *. I cannot say no reasonable jury would have found the defendant less than 50% at fault for the accident.

The crew in the locomotive observed the truck approaching the crossing and, when it became apparent the truck would not stop, applied the train's brakes. The train was traveling over forty-three miles per hour and was not able to stop in time to avoid the collision. Under the existing circumstances--the traffic congestion, the pedestrian activity, the obstructed intersection, the complex conjunction of the road and the crossing, the dark color of the train--the jury could reasonably have found the train was traveling at an excessive speed.

There was conflicting evidence sufficient to go to the jury as to the alleged failure of the railroad to use its bell or whistle or otherwise to provide adequate warning. Burlington Northern contends the accident was caused by Kenneth's failure to stop at the crossing, hear the locomotive's whistle, or observe the approaching train. Since the Herolds prevailed, we must view the evidence in the light most favorable to them. The jury was properly instructed on proximate cause and defendant made no objection. While the jury found that Kenneth shared some of the negligence, it determined his actions were not the intervening or superceding cause of the collision.

There exists evidence that the Herolds had never seen a train at the Schnell crossing before the accident. There was ample evidence that the road on which the Herolds were traveling was not well-defined and does not approach the railroad track at a right angle. The many distractions at the heavily congested crossing mitigate the Herolds' failure to see the train. Under such circumstances the doctrine that requires a motorist to "see that which is in plain sight" loses its force as a matter of law and the issue becomes one of fact for the trier of fact. The district court mentioned the various impediments to a clear view. We find ample evidence of the maintenance of an extra hazardous crossing by the railroad.

However, Burlington Northern also argues, even if it was negligent, Kenneth Herold was at least equally negligent and, under North Dakota comparative negligence law, the Herolds' recovery should be barred. Both the jury and the district court disagreed. There exists substantial evidence of Burlington Northern's negligence. The evidence of Kenneth Herold's negligence was his failure to stop or to observe the approaching train. As the district court points out "the jury could reasonably conclude from the slow speed of the truck that Kenneth was also looking." The jury's apportionment of negligence was not unreasonable. In light of the conflicting evidence we must give great credence to the findings of the jury and the trial judge. They heard the testimony and reviewed the evidence first hand; many credibility findings must be made in a trial such as this. Appellate courts should be extremely reluctant to interfere with a verdict where twelve jurors sit through a long trial and an experienced and competent trial judge finds no error in the jury's determination. Viewing the evidence in the light most favorable to the prevailing party, the jury verdict had substantial support and the district court was correct in denying Burlington Northern's post-trial motions.

II. The Amber Rotating Beacon

The Federal Railroad Administration required only a headlight and whistle on locomotives. 49 C.F.R. Secs. 230.231(a), .234 (1974). However, Burlington Northern equipped its locomotives with amber rotating beacons, attached to the headlight system, at the factory. The railroad argues that federal law pre-empts the field of railroad safety and defines the standard of care. Because amber rotating beacons are not federally mandated, Burlington Northern contends it was improper for the district court to allow any evidence regarding the beacon. At the time of the Herolds' accident, the beacon had been removed from the locomotive for repairs. The railroad relies primarily on Marshall v. Burlington Northern, Inc., 720 F.2d 1149 (9th Cir.1983). In Marshall, the Ninth Circuit held:

[U]nder the Boiler Inspection Act [45 U.S.C. Sec. 23] the state may not impose liability for failure to install a part or attachment of a locomotive if it is "within the scope of the authority delegated to the [Secretary]" to prescribe the same part or attachment. Napier v. Atlantic Coast Line R.R., 272 U.S. at 611, 47 S.Ct. at 209 .

Marshall, 720 F.2d at 1152.

The Marshall decision would be persuasive if the Herolds were arguing that the railroad should have installed a beacon on the locomotive and the evidence was introduced for the purpose of showing the locomotive could be made more safe....