Norfolk Southern R.R. v. Thompson

• Decision Date: 28 June 1996
• Parties: NORFOLK SOUTHERN RAILROAD and E. E. Haynes v. Pat THOMPSON, as administratrix of the Estate of Wayne Daniel Thompson, deceased. 1950414.
• Court: Alabama Supreme Court

Page 689

679 So.2d 689

NORFOLK SOUTHERN RAILROAD and E. E. Haynes v. Pat THOMPSON, as administratrix of the Estate of Wayne Daniel Thompson, deceased.

1950414.

Supreme Court of Alabama.

June 28, 1996.

David K. Howard of Jester, Howard & Jenkins, Florence, for Appellants.

Garve Ivey, Jr. of King, Ivey & Junkin, Jasper, for Appellee.

COOK, Justice.

Pat Thompson, as administratrix of the estate of her husband Wayne Daniel Thompson, sued Norfolk Southern Railroad and its train engineer E.E. Haynes, alleging that negligence and/or wantonness on their part had caused the wrongful death of Wayne Thompson, who was killed when his automobile was struck by a freight train at the "Baker Lane Crossing" in Colbert County. The trial court directed a verdict for the defendants on the plaintiff's wantonness claim, but submitted her negligence claim to the jury. The jury awarded Thompson $1,000,000 in damages, and the trial judge entered a judgment on that verdict. The defendants appealed, arguing that the evidence required a finding that Mr. Thompson had negligently failed to stop, look, and listen at the railroad crossing; that he had thereby been contributorily negligent; and, therefore, that the trial judge should have granted the defendants' motion for a judgment notwithstanding the verdict. The defendants also argue that the trial court improperly admitted into evidence certain statements made to the plaintiff that the defendants say should have been excluded. For the following reasons, we affirm the judgment.

Mr. Thompson was killed when his vehicle was hit by a freight train at the Baker Lane Crossing in November 1990. Although the engineer testified that he blew the whistle in an effort to alert Mr. Thompson of the oncoming train, other witnesses testified that they did not remember hearing the whistle. These same witnesses said they did remember hearing the crash.

First, the defendants contend that the trial court erred in not granting their motions for a directed verdict, a judgment notwithstanding the verdict or a new trial, because, they say, the evidence offered showed that Mr. Thompson was contributorily negligent, as a matter of law. The defendants contend that the trial judge instructed the jury that someone familiar with the crossing would have a duty to stop, look, and listen. The engineer testified that Thompson did not stop; therefore, the defendants argue that he was contributorily negligent.

The trial judge instructed the jury as follows:

"The plaintiff claims that the railroad, acting through its agents and employees and Mr. Haynes, were guilty of negligence in the operation of the train in question at the time and at the place complained of by the plaintiff, and that such negligence proximately caused the death of Wayne Daniel Thompson. And when a plaintiff files a claim like that, the defendants have a right to come in and answer the claim, and the defendants have done that in this case. And first of all, in their answer the defendants have denied all of the allegations of the plaintiff's complaint. That means they deny that they were guilty of any negligence on the occasion complained of or that anything they did caused Mr. Thompson's death. And they have also filed in their answer what is known as an affirmative defense, and that is the defense of contributory negligence. And that is, that the defendants claim that Wayne Daniel Thompson himself was guilty of negligence on the occasion complained of at that time and at that place and that his negligence proximately caused or contributed to his death; and that therefore, the plaintiff cannot recover in this case. Now that is the claim that has been made by the plaintiff and the answer that has been filed by the defendants.

"And in the course of this Charge I'm going to instruct you with respect to definitions of legal terms and also read you some statutes.

"First of all, though, I charge you that the burden is upon the plaintiff to reasonably satisfy you by the evidence of the truthfulness of the matters and things claimed by her before she would be entitled to recover. However, with respect to the affirmative defense of contributory negligence on the part of Wayne Daniel Thompson, I charge you that the burden is upon the defendant to reasonably satisfy you by the evidence of the truthfulness of that defense.

"....

"Now, as I have explained to you, members of the jury, the defendant has pled the affirmative defense of contributory negligence, and I would like to define that term for you. Contributory negligence is negligence on the part of Mr. Wayne Daniel Thompson that proximately contributed to his death. And as I have told you, the burden is upon the defendant to reasonably satisfy you from the evidence as to the truth of the material allegations of this defense.

"Now, the Court charges you, members of the jury, that the defendants can prove negligence on the part of the deceased, Wayne Daniel Thompson, by proving to your reasonable satisfaction that Mr. Thompson violated a rule or rules of the road. However, before such a violation will be a defense on the part of the defendants, such violation must proximately cause or contribute to cause the accident that resulted in the death of Mr. Thompson.

"I will now read you certain of these rules of the road, the violation of which is negligence as a matter of law. The fact that I read these statutes is no indication that any of these statutes have been violated or that such violation proximately caused or contributed to cause the death of Mr. Thompson. It is for you to decide whether or not the statutes have been violated and whether or not any such violation proximately caused, or contributed to cause, the accident that resulted in the death of Mr. Thompson, depending on what you find the facts to be.

"I charge you, members of the jury, that the Alabama rules of the road provide as follows: In Section 32-5A-150 of the Code of Alabama, 'Obedience to signal indicating [approaching] train,' subsection (a): 'Whenever [a] person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within 50 feet but not less than 15 feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply there [sic, when] ... (3) A railroad train approaching within approximately 1,500 feet of the highway crossing emits a signal audible from such distance and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard; and (4) An approaching railroad train is plainly visible and is in hazardous proximity to such crossing.'

"I further charge you, members of the jury, that Section 32-5A-170 provides as follows: 'No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards [in existence]. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing [and] when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, [or] when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.'

"I further charge you, members of the jury, that if a motorist cannot see clearly, he has no right to assume that his course is free of danger but must anticipate that some hazard lies immediately beyond his range of vision. And I further charge you that if a motorist's vision is obscured, an added duty of keeping a lookout is imposed rather than excusing an inadequate lookout.

"I charge you, members of the jury, that there is not an absolute duty to stop, look, and listen before a traveler may go on a railroad crossing in every case and under all circumstances. However, the court does charge the jury that a person in the process of approaching and attempting to cross a railroad track with knowledge on his part of the location of the railroad track is under a duty to stop, look, and listen for approaching train[s]. This use of his senses must be made within such nearness to the track and under such circumstances as will afford the traveler the knowledge of whether he may cross the track with reasonable safety from collision with an approaching train. Such duty is also a continuing duty during his attempt to cross between the time he last stopped, looked, and listened, if he did so, and the time he entered the zone of danger made by the train's entering the crossing.

"I charge you, members of the jury, that if you are reasonably satisfied from the evidence that the deceased, Wayne Daniel Thompson, was guilty of contributory negligence at the time and place complained of, then the plaintiff cannot recover for any initial simple negligence of the defendants."

R.T. at 400-08. The engineer testified that Thompson, before attempting to cross the railroad tracks, did not stop, look toward the train, or take any of the precautions required by law to check to see if a train was approaching. The defendants argue that this testimony showed that Thompson was contributorily negligent as a matter of law. We disagree.

In order to prove that Thompson was contributorily negligent, the defendants had the burden of proving (1) that Thompson had failed to exercise reasonable care (i.e., had failed to stop, look, and listen) and (2) that that failure was the proximate cause of his accident. See Slade v. City of Montgomery, 577 So.2d 887, 892 (Ala.1991) (defining contributory negligence as "negligence on the part of a plaintiff that proximately contributes to the plaintiff's injury"). Evidence indicated that the crossing where Thompson was killed was a hazardous one. The plaintiff introduced photographs showing a sharp curve near the crossing....