Shanklin v. Norfolk Southern Ry. Co.

Decision Date13 April 1999
Docket NumberNo. 96-6371,96-6371
Citation173 F.3d 386
PartiesDedra SHANKLIN, Individually and as Next Friend of Jessie Guy Shanklin, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant, Cincinnati, New Orleans & Texas Pacific Railway Company; Norfolk Southern Corporation, Defendants.
CourtU.S. Court of Appeals — Sixth Circuit

Everett B. Gibson (argued and briefed), Bateman, Gibson & Childers, Memphis, Tennessee, for Defendant-Appellant.

Pamela R. O'Dwyer (argued and briefed), Paty, Rymer, and Ulin, Chattanooga, Tennessee, for Plaintiff-Appellee.

Jeffrey Robert White (briefed), Washington, D.C., James Lacey O'Connell (briefed), Lindhorst & Dreidame, Cincinnati, Ohio, for Amici Curiae.

Before: BATCHELDER, MOORE, and CLAY, Circuit Judges.


BATCHELDER, Circuit Judge.

This action arises out of an accident that occurred in Gibson County, Tennessee, on October 3, 1993. Eddie Shanklin collided with, and was killed by, one of Norfolk Southern's trains while he was driving his car east across the Oakwood Church Road Crossing. Dedra Shanklin (Eddie Shanklin's widow) brought claims-based on both Tennessee common law and statutory law-alleging that the accident was the result of Norfolk Southern's negligence in: (1) operating its train at an excessive speed; (2) failing to sound the horn or apply the brakes in a timely fashion; (3) failing to remove vegetation from the area surrounding the crossing; (4) failing to install a "ditch light" on the train; and (5) failing to install adequate warning devices at the crossing.

Norfolk Southern moved for summary judgment, claiming that Shanklin's claims are preempted by the Federal Railroad Safety Act ("FRSA"), 45 U.S.C. §§ 421-447, repealed and recodified as 49 U.S.C. §§ 20101-20153. On April 17, 1996, the district court granted summary judgment to Norfolk Southern on the excessive speed and "ditch light" claims, holding that they were preempted by the FRSA and Boiler Inspection Act, respectively, but denied the motion in all other respects.

Thus, the claims concerning failure to apply the brakes, failure to sound the horn, failure to remove vegetation, and failure to install adequate warning devices went to a jury trial beginning on April 29, 1996. On May 7, 1996, the jury returned a verdict finding that Shanklin and Norfolk Southern were both guilty of negligence. The jury assigned 30% negligence to Shanklin and 70% to Norfolk Southern. The jury further found the damages to be $615,379.00. Accordingly, a judgment was entered by the district court awarding Shanklin $430,765.30.

Norfolk Southern timely filed a motion for judgment as a matter of law or, in the alternative, for a new trial. The motion was denied on September 13, 1996, and Norfolk Southern timely filed a notice of appeal on September 25, 1996.


In 1987, the Tennessee Department of Transportation ("TDOT") installed reflectorized crossbucks at the Oakwood Church Road Crossing as part of an improvement project including 196 crossings in 11 West Tennessee counties. Terry Cantrell, the TDOT employee in charge of Tennessee's railroad crossing programs, testified that the improvements at the Oakwood Church Road Crossing were undertaken as part of a federally funded "minimum protection program" to bring crossings into compliance with 23 C.F.R. § 130(d). That section mandates that a state establish a schedule of crossing safety projects and that "[a]t a minimum, such schedule shall provide signs for all railway-highway crossings." 23 U.S.C. § 130(d). No evidence was produced that any federal employee was involved in the decision to install crossbucks, as opposed to active warning devices such as gates and flashing lights, at the Oakwood Church Road Crossing.

Furthermore, evidence was introduced at trial showing that the Oakwood Church Road Crossing exhibited the following dangerous conditions: (1) high speed train operations combined with limited sight distance; (2) moderately high railroad and highway traffic; (3) trucks carrying hazardous materials; and (4) a prior collision at the crossing.


Eddie Shanklin was driving east along Oakwood Church Road at a speed of 20 miles per hour when he was struck by a Norfolk Southern train at the Oakwood Church Road Crossing. Archie Brunham, former head of the Georgia Department of Transportation, explained at trial that Shanklin did not have enough time to stop the car after seeing the train and that he was not able to hear the train whistle because his windows were rolled up, his heater fan was on, and his radio was playing. Burnham explained that in order to stop, Shanklin needed to have seen the train and to have started applying the brakes no closer than 135 feet from the tracks. Shanklin could not have seen the train until he was a mere 94 feet from the tracks, however, because of vegetation and the proximity of a house to the tracks. Indeed, the engineer of the train testified that he never saw Shanklin's vehicle prior to the accident, and the other two crew members testified that they only saw Shanklin's car after it was too late to stop.

Burnham also testified that "very possibly sight and sound of the approaching train could have been received by Shanklin at the same point in time. And as I've demonstrated earlier that point in time, 94 feet away from the rail, is just too late." When Norfolk Southern tried to rebut Burnham's horn-related testimony with an expert of their own, the results were less than stellar. Tom Rose opined that the train horn could have been heard at 400 feet, but he reached that opinion by doing tests in a car different from Shanklin's, without radio or heater on, and sitting still on a flat road in Texas. Rose played a tape recording at trial, which he expected would establish that Mr. Shanklin would have been able to hear the train horn. The demonstration, however, was not very successful. At one point, Rose apologized:

I have a little egg on my face, as you heard ... the recording, as you can tell, is terrible. It's extremely muddy. There was a malfunction, but I think you can still tell that the horn is-you can tell the horn is there sometimes and not there at others.

Expert testimony further suggested that the headlamp on the train may have been inadequate to warn Shanklin of the train's approach. Burnham pointed out how the existence of street lights along the tracks could confuse a driver into thinking that the train's headlamp was just another street light. Burnham further testified that the headlamp on Norfolk Southern's train was designed "to give indication of the illumination in front of the train as opposed to being a warning to the traffic that here comes the train."


Norfolk Southern contends that Shanklin's state law crossing warning device claim was preempted by the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20106 (formerly 45 U.S.C. § 434), and regulations issued under the Highway Safety Act, 23 U.S.C. § 101 et seq.

The FRSA was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. As an aid to developing solutions to safety problems posed by railroad grade crossings, the FRSA provides that the Secretary of Transportation "as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing [existing] laws and regulations." 49 U.S.C. § 20103.

Not long after enacting the FRSA, Congress enacted the Highway Safety Act of 1973, which makes federal funds available to the states to improve grade crossings. As a prerequisite to receiving federal funds, a state must "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." 23 U.S.C. § 130(d). States may have to meet other requirements, as specified by regulations promulgated by the Secretary through the Federal Highway Administration ("FHWA") under the FRSA and the Highway Safety Act. See 23 C.F.R. pts. 646, 655, 924, 1204.

The FRSA specifically provides for preemption, stating:

Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.

49 U.S.C. § 20106.

In CSX Transportation, Inc. v. Easterwood, the Supreme Court addressed the preemptive force of the FRSA with respect to state warning device claims for accidents at grade crossings. 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Very much like the present case, the plaintiff in Easterwood had been killed by one of defendant's trains at a grade crossing. Easterwood's widow brought a state tort claim for failure to maintain adequate warning devices at the crossing. The Supreme Court held that the state law claims in that case were not preempted by the FRSA.

The Easterwood Court first held that the regulations contained in 23 C.F.R. §§ 646.214(b)(3) and (4) provided the only potential sources for preemption in the circumstances of that case. Those sections apply, however, only to grade crossings in which "Federal-aid funds participate in the installation of the [warning] devices." See 23 C.F.R. §§ 646.214(b)(3) and (4). With respect to such federally funded crossings or federally funded projects to improve or create such crossings, § 646.214(b)(2) states that "the crossing shall not be opened for unrestricted use by traffic or the project accepted by the FHWA until adequate warning devices for the crossing are installed and functioning properly." 23 C.F.R. § 646.214(b)(2) (emphasis added).

Subsections (b)(3) and (4) outline the types of warnings deemed adequate for...

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