Marshall v. Burlington Northern, Inc.

• Citation: 720 F.2d 1149
• Decision Date: 25 November 1983
• Docket Number: No. 81-3161,81-3161
• Parties: Mary MARSHALL, individually and as personal representative, Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1149

720 F.2d 1149

Mary MARSHALL, individually and as personal representative Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., Defendant-Appellant.

No. 81-3161.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 3, 1982.

Decided Nov. 25, 1983.

Bruce R. Toole, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Mont., for defendant-appellant.

John C. Hoyt, Hoyt & Trieweiler, Great Falls, Mont., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before KENNEDY, FARRIS, and NORRIS, Circuit Judges.

KENNEDY, Circuit Judge:

In this wrongful death case brought with diversity jurisdiction, the jury found Burlington Northern, Inc. liable for negligence when one of its freight trains collided with a truck at a grade crossing, killing Kenneth Marshall. The jury awarded Marshall's surviving widow $75,000 in compensatory damages and $750,000 in punitive damages. We reverse and remand for a new trial.

I. Federal Preemption of On-Train Warning Devices

The Burlington train that collided with Marshall was equipped with a bell, a whistle, two front white headlights, one right above the other, and a revolving amber light behind and above the headlights. Appellee's negligence case was premised largely on the alleged inadequacy of these devices as warning equipment. Appellee presented evidence and argued to the jury that the headlights were inadequate because from a distance they presented a narrow, single beam that made it difficult for motorists to judge the distance and speed of the train. Appellee urged that various available devices used by other railroads, namely, strobe lights and oscillating lights, are effective warning devices that Burlington failed to install. Strobe lights are used in pairs and flash in an alternate sequence to provide reference points for determining speed, distance, and movement. Oscillating lights wave back and forth in a figure eight pattern and bounce off surrounding objects. Had such alerting devices been used on the eastbound train, the jury was told, Marshall, in his rear view mirror or by his peripheral vision, would have been warned that another train was coming toward him from the west.

Federal regulations then applicable required locomotives to have a headlight of sufficient illumination to enable a crew member in the cab to see a dark object as large as a man of average size at a distance of at least 800 feet in front of the headlight, and a "suitable whistle, or its equivalent." 49 C.F.R. Secs. 230.231(a), 230.234 (1978) (revised and modified at 49 C.F.R. Secs. 229.125, 229.129 (1981)). The Burlington freight train met these requirements.

At trial Burlington objected to any testimony concerning additional on-train warning devices. The district court overruled the objection and admitted testimony regarding the uses of strobe or oscillating lights on locomotives. Burlington presents as its primary argument on appeal, that the subject of proper warning equipment to be used on locomotives has been preempted by federal statutes and regulations, and that testimony regarding the railroad's failure to use additional warning lights was improper. We agree.

The central inquiry in preemption cases is whether Congress intended to foreclose the challenged local regulation. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978); San Diego Unified Port District v. Gianturco, 651 F.2d 1306, 1310 (9th Cir.1981) (per curiam), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). A congressional intent to preempt may be explicit in the statute or implicit in its structure and purpose. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977); see also Pacific Gas & Elec. v. State Energy Resources Conservation & Development Comm'n, --- U.S. ----, ----, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983); Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). In this case we must examine two federal statutes regulating railroads, the Boiler Inspection Act of 1911, 45 U.S.C. Secs. 22-23, 28-43 (1976), and the Federal Railroad Safety Act of 1970, 45 U.S.C. Secs. 421-44 (1976), to determine if they are preemptive of state law.

The Boiler Inspection Act, as amended by Act of March 4, 1915, ch. 169, 38 Stat. 1192, granted the Interstate Commerce Commission the power to prescribe and regulate "all parts and appurtenances" of locomotives. 45 U.S.C. Sec. 23 (1976). That power was transferred to the Secretary of Transportation in 1966 by the Department of Transportation Act, 49 U.S.C. Secs. 1651-1659 at 1655(e)(1)(E) (1976). Federal regulation of locomotive equipment under the Boiler Inspection Act has been held a total occupation of the field, preventive of any state or local regulation on the same subject. Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 612-13, 47 S.Ct. 207, 209-10, 71 L.Ed. 432 (1926).

The scope of preemption under the Boiler Inspection Act is determined by the interpretation of the words "parts and appurtenances." The Supreme Court interpreted the phrase in Southern Railway Co. v. Lunsford, 297 U.S. 398, 56 S.Ct. 504, 80 L.Ed. 740 (1936), as encompassing "[w]hatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of the [Secretary] ...." 297 U.S. at 402, 56 S.Ct. at 506 (emphasis added). Combining this language with Napier, we hold that under the Boiler Inspection Act 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. It is within the scope of the Secretary's authority to prescribe strobe or oscillating lights for locomotives, and any state regulation is therefore preempted.

The precise holding in Lunsford, supra, was that an experimental device that had been installed on a locomotive by the railroad was not a "part and appurtenance." Id. The Court did not, however, establish "experimental devices" as a general category of locomotive equipment subject to state regulation. Rather, the Court held that railroads have an ordinary duty of care to maintain properly all devices actually attached to a locomotive. This duty is in addition to the absolute liability established by the Boiler Inspection Act for failure to maintain "parts and appurtenances." There is no allegation here that strobe or oscillating lights were attached to the locomotive at the time of the accident, and that Burlington had negligently failed to maintain them. Rather, the allegation is that Burlington was liable for failure to attach strobe or oscillating lights. The ordinary duty of care described in Lunsford does not apply in these circumstances, and Lunsford in no way affects our holding that the Boiler Inspection Act preempts any state regulation of locomotive equipment.

We now consider the effect, if any, of the Railroad Safety Act of 1970. The Railroad Safety Act confers upon the Secretary authority to prescribe "rules, regulations, orders, and standards for all areas of railroad safety supplementing provisions of law and regulations in effect on October 16, 1970...." 45 U.S.C. Sec. 431(a) (1976). The Railroad Safety Act does not subsume or recodify previously existing federal statutes on railroad safety. Rather, it leaves existing statutes intact, including the Boiler Inspection Act, and authorizes the Secretary to fill interstitial areas of railroad safety with supplemental regulation. Id.

The preemptive effect of the Railroad Safety Act is different from that of the Boiler Inspection Act. In particular, the Railroad Safety Act provides:

... A state may adopt or continue in force any law, rule, regulation, order or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement....

45 U.S.C. Sec. 434 (1976).

This language means that, unlike the Boiler Inspection Act, the Railroad Safety Act preempts only those state laws where the federal government has acted with respect to the same "subject matter." The Railroad Safety Act does not occupy the field.

The main issue is whether the Railroad Safety Act modified the preemptive effect of the Boiler Inspection Act. We conclude that the language and structure of the Railroad Safety Act indicate a congressional intent to leave the Boiler Inspection Act intact, including its preemptive effect. Accord Consolidated Rail Corp. v. Pennsylvania Public Utilities Comm'n, 536 F.Supp. 653 (E.D.Pa.1982), aff'd mem., 696 F.2d 981 (3d Cir.1982), aff'd sum. sub nom., Pennsylvania Public Utilities Comm'n v. Consolidated Rail Corp., --- U.S. ----, 103 S.Ct. 1888, 77 L.Ed.2d 280 (1983).

The Safety Act conferred upon the Secretary authority to adopt regulations "supplementing provisions of law and regulations in effect on October 16, 1970...." 45 U.S.C. Sec. 431 (1976). It does not subsume, replace, or recodify any acts. The logical inference from this structure is that Congress intended to leave unchanged the force and effect of existing federal regulatory statutes. See H.R.Rep. No. 91-1194, reprinted in 1970 U.S.Code Cong. & Ad.News 4104, 4105, 4108-09.

Moreover, to adopt appellee's argument and find that Congress repudiated the preemptive effect of the Boiler Inspection Act when it adopted 45 U.S.C. Sec. 434, would undermine achievement of one of the explicit purposes of the Railroad Safety Act--national uniformity of railroad regulation. 45 U.S.C. Sec. 434 (1976). As the district court noted in Consolidated Rail:

In expanding the scope of federal rulemaking...