Smith v. Norfolk S. Ry. Co.
| Decision Date | 28 June 2016 |
| Docket Number | A16A0711 |
| Citation | 337 Ga.App. 604,788 S.E.2d 508 |
| Parties | Smith et al. v. Norfolk Southern Railway Company. |
| Court | Georgia Court of Appeals |
Michael J. Warshauer, Trent Scott Shuping, Warshauer Law Group, Atlanta, for Appellants.
Daryl Glenn Clarida, Eileen M. Crowley, Keith Marc Hayasaka, Hall, Bloch, Garland & Meyer, Atlanta, for Appellee.
This appeal arises out of a fatal collision between a freight train and a pickup truck at a railroad crossing. Before the collision between the train and pickup truck, the truck was involved in an motor vehicle accident with another car and had come to rest on the railroad tracks as a result. A passenger in the truck subsequently was killed when the train owned by Norfolk Southern Railway Company entered the crossing and struck the truck. The plaintiffs, who are the children of the deceased truck passenger,1 filed this wrongful death action against Norfolk Southern, asserting claims for negligence per se and ordinary negligence on the ground that the train engineer allegedly had failed to blow the train's horn upon approaching the railroad crossing in the manner required by a federal railroad regulation and the standard of ordinary care. Norfolk Southern answered, denying liability on the alleged grounds that its engineer's actions were reasonable in light of the sudden emergency that had transpired and were not the proximate cause of the truck passenger's death. The case was tried before a jury, which returned a verdict in favor of Norfolk Southern.
On appeal from the final judgment entered on the verdict, the plaintiffs contend that the trial court erred by charging the jury on the defense of sudden emergency for several reasons. The plaintiffs first contend that the evidence did not support the charge on sudden emergency. The plaintiffs also contend that a charge on the sudden emergency defense was improper because the defense was preempted by a federal railroad regulation. Furthermore, the plaintiffs contend that even if a sudden emergency charge was proper, the charge as given by the trial court was an incomplete statement of the defense. Lastly, the plaintiffs contend that a separate, introductory portion of the jury charge also contained an erroneous definition of the sudden emergency defense.
For the reasons discussed below, we conclude that there was evidence to support a charge on the defense of sudden emergency. As to the plaintiffs' remaining challenges to the jury charge, we conclude that the plaintiffs waived those challenges by failing to raise them in the trial court and have failed to show that any defect in the charge rose to the level of substantial error. We therefore affirm the judgment entered in favor of Norfolk Southern.
“On appeal, the evidence is construed most strongly to support the verdict and judgment.” Tice v. Cole , 246 Ga.App. 135, 135, 537 S.E.2d 713 (2000). So construed, the evidence shows that the sequence of events giving rise to this litigation began at the intersection of Buford Highway and Amwiler Road in Gwinnett County. Amwiler Road crosses over three railroad tracks near the intersection.
On the late afternoon of March 12, 2013, Tony Lungaro was a passenger in a pickup truck traveling southbound on Buford Highway towards the intersection with Amwiler Road. The driver of the truck was Lungaro's employee, Lorenzo Wilkerson. As the truck approached where Buford Highway intersects with Amwiler Road, the traffic light for Buford Highway turned yellow. According to an eyewitness, Wilkerson did not stop or slow down the truck. As the light turned red, Wilkerson drove the truck into the intersection and collided with a van traveling northbound on Buford Highway that was in the process of making a left turn onto Amwiler Road.
The impact of the collision knocked both vehicles off course. The van came to rest on a grassy area near Buford Highway. The pickup truck was propelled approximately 90 feet onto one of the railroad tracks that crossed Amwiler Road. After the truck came to rest on the railroad tracks, the crossing gates closed, and the lights and bells at the crossing activated. Other drivers began to honk their horns and to yell at the occupants of the truck to call their attention to the crossing signals.
The crossing signals activated because a freight train was traveling northbound from Atlanta to South Carolina and was approaching the crossing at Amwiler Road. The train was operated by an experienced Norfolk Southern locomotive engineer familiar with the train route. The train had 3 engine cars and 75 freight cars, was approximately 1 mile long, weighed 8,900 tons, and included several cars that carried hazardous materials. The train was traveling within the speed limit at 48 mph as it approached the crossing at Amwiler Road.
A regulation issued by the Federal Railroad Administration requires that the horn on the lead locomotive of a train be blown at least 15 seconds before the train enters a public highway railroad crossing. 49 CFR § 222.21 (a), (b) (2).2 The horn must be blown in the sequence of two long blasts, one short blast, and one long blast, with the sequence repeated or prolonged until the locomotive occupies the crossing. See 49 CFR § 222.21 (a). Norfolk Southern's internal operating rules are consistent with the federal railroad regulation.
Pursuant to the federal railroad regulation and Norfolk Southern's internal operating rules, the locomotive engineer began the first long blast of the horn before arriving at the Amwiler Road crossing. The engine bell, which also alerts others to the approach of the train, turned on automatically during the first horn blow and remained on throughout the incident at issue. The headlight and two “ditch lights” on the front of the train were activated as well.
During the first horn blow, the engineer “saw something come across the crossing and kind of make a sudden stop right on ... [the] track.” Upon realizing that it was a stationary vehicle, the engineer stopped blowing the horn and carried out a sequence of emergency steps aimed at stopping or slowing down the train. According to the engineer, The engineer put the train into emergency because the truck was “not going to move” from the track and he was concerned about a possible derailment, which would have been a “catastrophe” in light of the hazardous materials on board. The engineer moved the throttle to the idle position and sequentially applied four different train brakes, causing him to be “jostled around a little bit” inside the lead engine car and to be “shook up in [his] seat.” The engineer “got back ... onto the horn as quick as ... [he] could” and resumed blowing the horn shortly before arriving at the Amwiler Road crossing.
The engineer was able to slow the train down, but not to stop it. As the train approached the crossing, the pickup truck remained on the tracks facing in the direction of the oncoming train. Wilkerson, the driver of the pickup truck, was slumped over in the driver's seat and did not respond to the approaching train. Lungaro exited from the passenger side of the truck and remained standing there, facing the opposite direction from which the train was approaching. According to an eyewitness, Lungaro appeared to be in a “daze” and “just kept standing there like he was trying to figure out what was going on.” As the train blew its horn for the second time, Lungaro “turned to run, but it was too late.” The train hit the pickup truck, and the truck hit Lungaro and killed him. Wilkerson was severely injured but survived the impact from the train. The train did not derail, and the locomotive engineer was not injured. It took the engineer a half mile to bring the train to a complete stop on the tracks.
Video from a camera mounted in the train showed that approximately 22 seconds elapsed from the time the pickup truck came to a rest on the railroad tracks until the impact with the train. The video also recorded when the engineer was blowing the horn on the train. The video reflected that the engineer first sounded the horn for 4 seconds, starting 22 seconds before the collision and ending 18 seconds before the collision. The engineer blew the horn a second time approximately 2 seconds before the train hit the truck. During the approximately 16–second gap between the first and second horn blast, the engineer applied the four different train brakes as part of the emergency procedure aimed at stopping or slowing down the train.
Following the collision, the plaintiffs sued Norfolk Southern for the wrongful death of their father, Lungaro.3 The plaintiffs alleged that Norfolk Southern was liable under theories of negligence per se and ordinary negligence based on the 16–second gap between the first and second horn blast sounded by the locomotive engineer as the train approached the railroad crossing. According to the plaintiffs, the engineer had failed to continuously blow the horn in the manner prescribed by 49 CFR § 222.21, the railroad's internal operating rules, and the standard of ordinary care, and thus had failed to properly warn Lungaro of the approaching train. The plaintiffs asserted that if the train horn had been properly sounded, it would have alerted Lungaro to the train and would have caused him to flee from the tracks for his own safety.
Norfolk Southern answered, denying liability. Norfolk Southern alleged that the locomotive engineer's decision to apply the four brakes to slow the train rather than continuously blow the horn was reasonable in light of the sudden emergency that had transpired. Norfolk Southern further alleged that the actions of the engineer were not the proximate cause of Lungaro's death, and that the true proximate cause was the negligence of the drivers of the pickup truck and van involved in the motor vehicle accident.
A jury trial ensued over several days in August 2015....
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