Pearman v. Norfolk & Western Ry. Co., 90-2280

• Decision Date: 16 August 1991
• Docket Number: No. 90-2280,90-2280
• Parties: David D. PEARMAN, as Administrator of the Estate of Tamra S. Pearman, Deceased, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, a railroad corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 521

939 F.2d 521

David D. PEARMAN, as Administrator of the Estate of Tamra S.

Pearman, Deceased, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, a railroad corporation,

Defendant-Appellee.

No. 90-2280.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 25, 1991.

Decided Aug. 16, 1991.

John T. Papa (argued), Pratt & Callis, Granite City, Ill., for plaintiff-appellant.

Brian L. McPheters (argued), Hatch, Blockman, McPheters, Fehrenbacher & Lyke, Champaign, Ill., for defendant-appellee.

Before MANION and KANNE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

KANNE, Circuit Judge.

During the evening of March 25, 1989, at approximately 8:20 p.m., Tamra Pearman was driving her pickup truck on a highway in Vermilion County, Illinois. One of the Norfolk & Western Railway Company's trains was stopped in such a manner that a black tanker car came to rest blocking the grade crossing where the highway on which she was travelling crossed the tracks. The pickup truck collided with the tanker car at that grade crossing and Mrs. Pearman was killed.

This case involves a tort doctrine, relatively ancient in origin, which was recently reaffirmed by the Illinois Supreme Court. It is the standing-car rule, which relieves the railroad of a duty to give warning, and the question presented to us in this diversity case is whether the district court properly applied the rule in granting Norfolk & Western's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

We review de novo the district court's grant of Norfolk & Western's 12(b)(6) motion to dismiss. Harris Trust & Sav. Bank v. E-II Holdings, Inc., 926 F.2d 636, 641 n. 17 (7th Cir.1991). The following is a summary of the facts alleged in the complaint, and for purposes of our review, we assume the truth of all well-pleaded allegations and draw all reasonable inferences in the light most favorable to the estate. Id.

The complaint contains allegations that Norfolk & Western was negligent in the following respects: 1) operating the train in such a way as to block the crossing with a black tanker car; 2) failing to illuminate the crossing when it knew or should have known the tanker cars blocking the crossing would not be visible to traffic approaching the crossing at night; 3) failing to place ignited fusees or station a crew member with such fusees at the crossing to warn approaching traffic of the train; 4) failing to provide any means of warning to approaching traffic of the train, other than a stationary railroad sign which was not adequate, efficient, reasonable, or in compliance with state regulations; and 5) failing to remove various forms of growth from within 500 feet of the crossing in violation of Illinois law.

The standing-car rule provides that "a train stopped at a crossing is generally held to be adequate notice and warning of its presence to any traveler who is in the exercise of ordinary care for his own safety, and the railroad is under no duty to give additional signs, signals or warnings." Dunn v. Baltimore & O.R.R., 127 Ill.2d 350, 130 Ill.Dec. 409, 412, 537 N.E.2d 738, 741 (1989). An exception to the general rule provides that more warnings may be required in the presence of "special circumstances." Id. In a case involving the conclusion that a blinding snowstorm was a special circumstance, an Illinois appellate court emphasized that "[p]erceptibility [ ] is an important element in the general rule." Petricek v. Elgin, J. & E. Ry., 21 Ill.App.2d 60, 157 N.E.2d 421, 423 (1959), cited in Dunn, 130 Ill.Dec. at 412, 537 N.E.2d at 741. The Dunn court noted that the Petricek rationale was that if one cannot see the standing train because of a blinding snowstorm, the train cannot serve as warning of its presence, and thus the general rule would not apply. The Dunn court then states the Petricek court's implication that if the train is not perceptible to one exercising ordinary care, the railroad may be liable. Dunn, 130 Ill.Dec. at 412, 537 N.E.2d at 741.

With regard to the cause of the accident, the complaint boils down to stating that Norfolk & Western parked black tanker cars across the highway at night; no warning of the cars' presence was given other than the stationary cross-arm sign which permanently marked the crossing; and the black train cars were not visible to the approaching Mrs. Pearman.

Norfolk & Western used a common litigation tool at this point in the case and filed a 12(b)(6) motion, relying on Dunn and stating that an allegation that the railroad car was black is not sufficient to support "special circumstances" which would remove this case from the ambit of the general standing-car rule. The district court agreed and dismissed the case.

Although the estate's possibility of recovery in this litigation is far from certain, the 12(b)(6) dismissal precluded it from developing reasonable inferences raised by its complaint which might support a factual showing of special circumstances.

At the time the district court rendered its ruling it did not have the aid of our decision in Trevino v. Union Pac. R.R., 916 F.2d 1230 (7th Cir.1990), which provides some guidance in interpreting the Illinois standing-car rule set forth in Dunn. In Trevino, we emphasized that there are many different "special circumstances" that might allow the case to fit within the exception to the general rule regarding the standing cars, and these...