McTavish v. Chesapeake and Ohio Railroad Co.

• Citation: 485 F.2d 510
• Decision Date: 16 October 1973
• Docket Number: No. 72-2085.,72-2085.
• Parties: Jewell McTAVISH, Administratrix of the Estate of Peter R. McTavish, Deceased, Plaintiff-Appellant, v. CHESAPEAKE AND OHIO RAILROAD CO., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

485 F.2d 510 (1973)

Jewell McTAVISH, Administratrix of the Estate of Peter R. McTavish, Deceased, Plaintiff-Appellant, v. CHESAPEAKE AND OHIO RAILROAD CO., Defendant-Appellee.

No. 72-2085.

United States Court of Appeals, Sixth Circuit.

Argued June 4, 1973.

Decided October 16, 1973.

Edward M. Post, Louisville, Ky., for appellant; H. S. Horen, Louisville, Ky., on brief.

Gerald Kirven, Louisville, Ky., for appellee; Matthew R. Westfall, Joseph H. Terry, Louisville, Ky., on brief; Middleton, Reutlinger & Baird, Louisville, Ky., of counsel.

Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from the District Court's entry of summary judgment for Appellee, Chesapeake and Ohio Railroad Co., in a wrongful death action by Appellant as administratrix of the estate of Peter R. McTavish, who was killed in an auto-train collision involving one of Appellee's trains. Jurisdiction is based upon diversity of citizenship, and Kentucky law is therefore controlling.

McTavish was killed when his car was struck at the grade crossing of Appellee's tracks and Kentucky Highway 801 in Farmers, Kentucky. The crossing was marked with a standard yellow "RR" sign, a standard railroad crossbuck, and a state highway stop sign. The accident occurred in daylight at approximately 6:45 a. m., on a clear day.

Appellant alleged that the Railroad was negligent in that McTavish's view of the track was obstructed by overgrown foliage along the track; the train was traveling at an excessive speed; the train's crew failed to give any signal; and the train's crew failed to keep a proper lookout at what was known to be an extra-hazardous crossing.

According to the depositions of four eye witnesses, McTavish stopped at or near the stop sign about 25 feet from the track and stopped again near or on the track before attempting to proceed across the track. It was Appellant's contention that due to the overgrown foliage, McTavish was unable to see the approaching train when he first stopped near the stop sign. Appellant further asserted that McTavish then proceeded slowly (at about 3 to 4 MPH), but when he finally did see the train it was impossible for him to avoid entering the train's path. It then became necessary for him to remove himself from this danger zone by rapidly proceeding across the tracks.

Appellee's argument, as accepted by the District Court, is that under the holding of the Kentucky Court of Appeals in Louisville & N. R.R. v. Fisher, 357 S.W.2d 683 (Ky.1962), McTavish was contributorily negligent as a matter of law and is therefore barred from recovery. In Fisher, a wrongful death action for a motorist killed at a railroad crossing, it was argued that the crossing was extra-hazardous due to an overgrowth of vegetation which obstructed the motorist's view of the approaching train. The Court held that regardless of whether the crossing was extra-hazardous, the decedent had been contributorily negligent as a matter of law because he had failed to exercise due care in ascertaining the presence of the oncoming train. Basing its decision on the holding that the existence of an obstruction requires a greater degree of care to be exercised by a motorist, the Court stated:

"The fallacy in plaintiff\'s position is that a motorist has exhausted his duty to exercise care upon reaching a STOP sign. This could not be true from the standpoint of common sense, rational conduct, or the law.

* * * * * *

"Surely if a motorist\'s view is obstructed when he stops at a STOP sign, he is under a duty to proceed with caution until he can discover the particular hazard the sign warns him to expect.

* * * * * *

"The extra-hazardous condition upon which plaintiff pins his case is the very condition which the motorist must observe and can neutralize if he obeys the literal warning of the sign and arrests his progress. Stopping puts him in a position of mobility, which we have heretofore discussed in connection with the duties of a pedestrian. Warned by the sign and confronted with an unseen but predictable peril on his right, a reasonably prudent person would certainly take extra precautions to discover his danger. The circumstance of obscured vision imposed on Fisher more rather than less care." 357 S.W.2d at 691-692. (Emphasis in original).

In Fisher, the Court assumed without deciding that the jury could have found the Railroad negligent due to the condition of the crossing and/or the acts of its employees. The decision precluded any recovery on that basis because the contributory negligence of the decedent was a complete defense to a finding of negligence. We are unable to rule that the District Court erred in concluding that McTavish was contributorily negligent as a matter of law under the Fisher holding.¹

However, two degrees of negligence are recognized in Kentucky: ordinary negligence, or the "failure to exercise care which ordinarily prudent persons would exercise in like or similar circumstances"; and gross negligence, which is the "absence of slight care". Lowe v. Commonwealth, 298 Ky. 7, 181 S.W.2d 409, 412 (1944); Shearer v. Hall, 399 S.W.2d 701 (Ky.1966); Louisville & N. R.R. v. George, 279 Ky. 24, 129 S.W.2d 986 (1939). We interpret the Fisher decision as dealing with contributory negligence as a defense to ordinary negligence, not as a defense to gross negligence. In the present case, in addition to the obstructed view of the railroad track, it was also alleged that the excessive speed of the train and the failure of the crew to give any signals or to keep a lookout at an extra-hazardous crossing were elements of Appellee's negligence. Appellant contends that these additional elements, not present in Fisher² could have resulted in a finding of gross negligence by the jury. Our question, then, is whether the evidence presented a genuine issue of material fact as to Appellee's gross negligence — an issue not considered by the District Court in its entry of summary judgment.³ Every negligence case, of course, rests upon its own facts and circumstances. Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526 (Ky.1969). An act which would not be negligent under one set of circumstances could be negligent in a different situation. And an act constituting ordinary negligence could, when combined with other acts, constitute gross negligence. See Brown v. Riner, 500 P.2d 524 (Wyo.1972); Ferguson v. Ferguson, 212 Va. 86, 181 S.E.2d 648 (Va.1971).

The affidavits and depositions submitted in the District Court indicate that the overgrowth of vegetation obstructed the decedent's view of the track until some point between the stop sign and the track. The depositions of the witnesses also presented conflicting statements regarding the speed of the train, the signals given by the crew and the lookout maintained by the crew at what appears to have been an extra-hazardous crossing. It is therefore apparent that the pleadings, depositions, affidavits, etc., before the District Court raised genuine issues of fact which were material to the question of Appellee's gross negligence.

As the Kentucky Court of Appeals recognizes, summary judgment should...