Northland Ins. Co. v. Union Pacific R. Co.

• Decision Date: 11 May 1992
• Docket Number: No. 92-119,92-119
• Citation: Northland Ins. Co. v. Union Pacific R. Co., 830 S.W.2d 850, 309 Ark. 287 (Ark. 1992)
• Parties: NORTHLAND INSURANCE COMPANY, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 850

830 S.W.2d 850

309 Ark. 287

NORTHLAND INSURANCE COMPANY, Appellant, v.UNION PACIFIC RAILROAD COMPANY, Appellee.

No. 92-119.

Supreme Court of Arkansas.

May 11, 1992.

Dick Jarboe, Walnut Ridge, for appellant.

Charles Gschwend, Herschel H. Friday, Little Rock, for appellee.

DUDLEY, Justice.

The Bill J. Smith Trucking Company owned a tractor and trailer that Darrell Carter was driving across the Union Pacific railroad tracks in Walnut Ridge when the rear of the trailer was struck by the engine of a Union Pacific train.The Smith Trucking Company's insurer, Northland Insurance Company, paid for the loss of the trailer and filed this subrogation claim against Union Pacific.The jury returned a verdict for the defendant railroad.The plaintiff insurance company appeals and argues that the trial court erred in refusing to give two instructions to the jury.The court of appeals certified the case to us.We hold that trial court ruled correctly, and accordingly, we affirm the judgment.

The proof in the case that determined whether the instructions were proper was as follows.Carter was operating a tractor and trailer unit, which was either 74 or 75 feet long, in a westerly direction on State Highway 412 in Walnut Ridge as he approached Union Pacific's dual set of tracks that cross the highway.The tracks run north and south and cross the highway at right angles.Carter was an experienced driver and had driven over this crossing many times.He was familiar with, and to some extent relied upon, the railroad's automatic gates with lights affixed that will lower to stop traffic, and the warning bells and flashing lights that are located next to the highway on both the east and west sides of the dual tracks, but he additionally looked both to the north and to the south and did not see an approaching train.These safety devices are electronically activated by a trigger that is 1,979 feet, or one-third of a mile, from the crossing.At the time he started to cross the tracks, none of the warning devices indicated that he should not do so.He started across slowly because the tracks were rough and because he intended to turn left, or south, onto U.S. Highway 67 at the intersection that was only a short distance past, or west of, the tracks.From the photographs introduced as exhibits at trial, it appears that the intersection is perhaps 50 or 60 feet past the western side of the crossing.

As Carter was crossing the tracks, another long truck approached the intersection from the opposite direction.This second truck, which was facing east, stopped before it reached the railroad tracks because the driver saw the train coming up one of the tracks from the south.The second truck was so long that the back of the trailer blocked part of the intersection behind it and thus prevented Carter from turning left.Carter was "inching" his truck forward and trying to decide how to turn left through the intersection.The decision was compounded when a car, headed in a southerly direction, stopped at the north side of the intersection, or on Carter's right, leaving Carter, with a 74-foot rig, and apparently only one option, to go straight ahead.Unfortunately, that option was quickly closed when the car on the right entered the intersection and blocked Carter's lane of traffic.At the same time another car, heading north, entered the intersection from the south, went around the back of the second truck, and stopped just short of the car facing south, in Carter's lane of traffic.It is possible that another car was behind Carter, but the testimony concerning it consists of one vague statement.In short, there was gridlock ahead of Carter in the intersection.At that time, Carter heard the warning bells and saw the arm of the gate coming down behind him.He testified that his only options were to drive his tractor into the car that was blocking his lane of traffic and try to push it aside, or inch as close to the car as possible and hope that he was clear of the tracks.He knew that he had cleared the first of the parallel tracks, but was afraid that he had not cleared the second.Facing this Hobson's choice, he chose to inch forward until he was almost touching the car that was in his lane of traffic.

Meanwhile, the brakeman on the train testified that he saw the truck on the tracks about a mile before reaching the crossing, but saw that the truck kept slowly moving forward.He testified that the train was about one-quarter of a mile away from the crossing before he realized the truck was not going to make it across the tracks.The engineer testified that he saw the truck about nine-tenths of a mile from the crossing.He testified that he blew the train's whistle for almost that entire mile and that, at one-third of a mile from the crossing, the truck was still moving.At that point the automatic triggering device activated the warning bells and lights and lowered the crossing gates.He was operating the train at 50 miles per hour, and he thought the truck still had time to get out of the way.At 50 miles per hour it would take the engine 27 seconds to travel the 1,979 feet to the crossing.He testified that he did not realize that the truck would not clear the tracks until the engine was only about one and one-half or two city blocks from the crossing, and he then made an emergency application of the brakes.By that time the result was fated.The train could not be stopped before it reached the crossing, and the traffic jam had locked the truck in the crossing.The emergency application of the brakes only slowed the train by about 5 miles per hour before it reached the crossing.Because the train was made up of 41 to 43 cars, it would have taken one-half to three-quarters of a mile to completely stop.The train struck the rear part of the trailer, causing the damage that resulted in this case.

Appellant, the company that insured the trucking company against...