Lacy v. CSX Transp., Inc.

Citation205 W.Va. 630,520 S.E.2d 418
Decision Date28 June 1999
Docket NumberNo. 25341.,25341.
PartiesTanya L. LACY and Michael Lacy, Her Husband, Plaintiffs Below, Appellants, v. CSX TRANSPORTATION, INC., Defendant Below, Appellee. Richard Brooks, Plaintiff Below, Appellant, v. CSX Transportation, Inc., Defendant Below, Appellee.
CourtWest Virginia Supreme Court
Dissenting Opinion of Justice Workman July 12, 1999.

John H. Skaggs, Esq., Calwell & McCormick, Charleston, West Virginia, Attorney for Appellant Brooks.

William M. Tiano, Esq., Berthold, Tiano & O'Dell, Charleston, West Virginia, Attorney for Appellants Lacy.

Thomas J. Murray, Esq., Mary O'Neill, Murray & Murray, Sandusky, Ohio, Attorneys for Appellants Lacy and Brooks.

Marc E. Williams, Esq., Robert L. Massie, Esq., Paul J. Loftus, Esq., Huddleston, Bolen, Beatty, Porter & Copen, Huntington, West Virginia, Attorneys for Appellee CSX. McGRAW, Justice:

Plaintiff-appellants Tanya Lacy and Richard Brooks were injured when the car in which they were passengers collided with a train operated by appellee CSX Transportation, Inc. ("CSX"), at a grade crossing in St. Albans, West Virginia in January 1995. Plaintiffs brought actions against both CSX and the driver of the car, Cacoe Sullivan, in the Circuit Court of Kanawha County. At the close of a two-week trial, which was bifurcated on the issues of liability and damages, the jury found both defendants negligent, but concluded in its special verdict that CSX's negligence was not a proximate cause of the accident. Plaintiffs challenge the subsequent judgment entered in favor of CSX, arguing that (1) the lower court erred in refusing to instruct the jury on strict liability; (2) counsel for CSX was permitted to engage in improper argument with respect to the effect of West Virginia law concerning joint and several liability; and (3) the trial court erred in excluding a statement contained in a diagram prepared by a CSX employee following the collision indicating the location of one of the locomotives involved in the accident. We reverse, finding merit in the latter two contentions.



Shortly after 11:00 p.m. on January 11, 1995, a car driven by Cacoe Sullivan left the Kroger parking lot in St. Albans, heading west on Third Avenue. Sullivan's fiancee, Richard Brooks, was riding in the front passenger's seat, while her mother, Tanya Lacy, was in the back seat with Sullivan's and Brooks's infant son. CSX's railroad tracks, comprised of two main-line and two side tracks, run parallel to Third Avenue immediately to the south.

While traveling on Third Avenue, Sullivan's car encountered a stop sign from where the occupants could see that the flashing lights and gates of the still-distant Fifth Street crossing were activated. Sullivan's vehicle proceeded to the intersection of Third Avenue and Fifth Street (adjacent to the crossing), slowed but did not stop at a stop sign, made a left turn onto Fifth Street, went around one of the lowered gate arms onto the tracks, and was struck broadside by a westbound train traveling at 50 miles per hour.1 Brooks was apparently rendered paraplegic by the accident.

It was undisputed that from Sullivan's view traveling on Third Avenue, a second, slowermoving "shifter" locomotive could be seen approaching the crossing from the west. There was, however, conflicting evidence regarding just how distant this locomotive was at the time of the accident. The testimony of the eastbound locomotive's engineer, Calvin Bowen, placed it as close as 300 to 400 feet west of the Fifth Street crossing, traveling at fifteen to twenty miles per hour, when the car was struck by the westbound train. Plaintiffs proffered evidence in the form of a diagram prepared by a CSX accident investigator, G.A. Green (the "accident diagram"), indicating that the eastbound locomotive was further away, as far as two to three blocks to the west of the crossing; however, this evidence was excluded by the trial court.

The central issue at trial with respect to CSX was whether it was negligent in permitting both fast- and slow-moving locomotives to approach the Fifth Street crossing simultaneously on its main-line tracks. The crossing had an active warning system consisting of flashing-light signals and automatic gates. Plaintiffs asserted at trial that the ability of the crossing warning system to provide a "positive warning" of an approaching train was effectively neutralized by CSX's practice of allowing slow-moving switching locomotives to use the main-line tracks. It was alleged that this practice frequently resulted in the extended activation of the crossing's flashing lights and gate arms when no trains were in hazardous proximity. As a result, according to plaintiffs, CSX was not using the warning system in accordance with its design, and thus was not in compliance with 49 C.F.R. § 234.225 (1998).2

Several witnesses, including Sullivan, testified to their past experience of encountering extended activations because of slow-moving trains in the vicinity of the Fifth Street crossing. The former mayor of St. Albans, Edward Bassitt, indicated that he had previously discussed with CSX the problem of extended activations at the Fifth Street crossing as early as 1989. CSX employees also testified to the fact that drivers in the St. Albans area frequently ignored the crossing warning signals.

Plaintiffs' expert in the area of gradecrossing safety, William Berg, Ph.D., testified that the fixed-distance circuitry installed on the main-line tracks at the Fifth Street crossing is designed to activate a warning whenever an approaching train is within 2,000 to 2,200 feet of the crossing, regardless of the train's speed. Thus, while a train traveling at the maximum speed of sixty miles per hour would give a twenty-five second warning, the approach of a slower-moving locomotive could result in much longer warning times. Dr. Berg estimated, based in part upon information contained in the accident diagram, that the eastbound locomotive would have activated the warning system over forty seconds prior to the accident.

Dr. Berg further stated that the optimal warning time was twenty-five to thirty seconds, and that warning times in excess of forty seconds result in a dramatic increase in the number of people driving around deployed gates. He stressed the importance of giving motorists credible warnings, and the need to provide uniform warning times at crossings where there are significant disparities in train speeds.3 As one example of alternatives to CSX's practices, Dr. Berg pointed to so-called constant warning-time technology ("CWT"), which gives a consistent warning regardless of the speed of the approaching train. Other alternatives cited by Dr. Berg included relegating slow-moving trains to side tracks, where the fixed distance circuitry is specifically designed to accommodate the lower speeds,4 or keeping slower locomotives outside of the circuitry on the main-line tracks when faster trains are approaching.

In its case, CSX presented the testimony of Gary Wolf, an expert in railway operations, and Joseph Blaschke, Ph.D., an expert in traffic engineering and highway design. Both of these witnesses rejected the contention that twenty-five to thirty seconds was an optimal warning time, and cited the absence of any federal regulation mandating maximum warning times.5 Each stated that CWT was intended primarily to improve vehicular flow at crossings, not to increase traffic safety. Dr. Blaschke also testified that CWT was indicated in situations involving both heavy vehicular traffic and heavy train activity, and that the Fifth Street crossing did not generate the level of vehicular traffic necessary to justify the installation of CWT. He gave the opinion that the characteristics of the crossing, including the existing presence of an active warning system with gates, and the excellent sight distance at the crossing, did not make Fifth Street a priority candidate for CWT.

After hearing the evidence, the jury deliberated until sending a note indicating that they were having difficulty reaching a unanimous verdict. The trial court then gave an Allen-type instruction.6 The jury subsequently rendered a special verdict regarding liability, finding CSX and Sullivan, as well as plaintiffs Tanya Lacy and Richard Brooks, negligent, but determining that Sullivan's negligence was the sole proximate cause of the accident. The jury ascribed one percent negligence each to CSX, Lacy and Brooks, and ninety-seven percent to defendant Sullivan.7 The circuit court entered judgment in favor of CSX based upon the jury's special verdict. Plaintiffs' subsequent Motion for a New Trial and Judgment Notwithstanding the Verdict was denied by the trial court.




Joint and Several Liability

Plaintiffs first contend that the trial court erred in permitting counsel for CSX to argue the potential post-judgment effects of joint and several liability to the jury.8 We reverse on this issue, finding that the trial court abused its discretion by permitting counsel for CSX to speculate and otherwise mislead the jury regarding whether the railroad would ultimately be charged with paying the entire judgment if both CSX and defendant Sullivan were found at fault.

Prior to trial, plaintiffs filed a motion in limine "to exclude any questions, suggestions, comments, allegations, testimony or argument by the defendant, [CSX], as to the effect that West Virginia's joint and several liability law may have upon [CSX]." The circuit court ruled on the motion after CSX proposed an instruction on the issue.9 CSX argued to the trial court that the jury needs to understand the relationship between the parties and the effect of a finding of either one percent against CSX, because of the way the plaintiffs have plead[ed] this case and argued this case, because of the relationship between the parties and the cooperation that we've...

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