Southern Pacific Transp. Co. v. Maga Trucking Co.

• Decision Date: 14 March 1991
• Docket Number: No. CV-N-89-352 BRT.,CV-N-89-352 BRT.
• Citation: 758 F. Supp. 608
• Parties: SOUTHERN PACIFIC TRANSPORTATION COMPANY, Plaintiff, v. MAGA TRUCKING COMPANY; et al., Defendants.
• Court: U.S. District Court — District of Nevada

758 F. Supp. 608

SOUTHERN PACIFIC TRANSPORTATION COMPANY, Plaintiff, v. MAGA TRUCKING COMPANY; et al., Defendants.

No. CV-N-89-352 BRT.

United States District Court, D. Nevada.

March 14, 1991.

Alfred Osborne, Reno, Nev., for plaintiff.

Charles W. Spann, Reno, Nev., for defendants.

ORDER DENYING SUMMARY JUDGMENT

BRUCE R. THOMPSON, District Judge.

This action was brought by Southern Pacific Transportation Company (S.P.) against Maga Trucking Company (Maga) for damages to its equipment, tracks, and freight resulting from a collision on June 12, 1989 of its train with a tractor and trailer owned by Maga which had become stranded across the railroad tracks at the Herschell Road crossing approximately 8.5 miles west of Winnemucca, Nevada. S.P. alleged negligence of the Maga driver. Maga counterclaimed for damages to its tractortrailer allegedly caused by S.P.'s negligent maintenance of the crossing. S.P. has moved for summary judgment upon the ground that federal law has preempted the field of the standard of care respecting railroad safety and that there can be no cause of action predicated on state law concepts of negligence. During the discovery period the evidence on this issue has been fully developed.

The federal statutes and regulations implicated by the motions are the Federal Railroad Safety Act (FRSA) (45 U.S.C. § 421 et seq.) and the Federal Aid Highway Act (23 U.S.C. § 101 et seq.).

45 U.S.C. § 434 provides:

The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

23 U.S.C. § 130(d) provides:

Survey and schedule of projects. — Each State shall 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. At a minimum, such a schedule shall provide signs for all railway-highway crossings.

The Department of Transportation (DOT) has prescribed some safety regulations pertaining to the installation and maintenance of railroad tracks and the roadbed (49 C.F.R. § 213.1 et seq.), none of which are applicable to the alleged facts of this case.

Nevada has a statute which implements the requirements of 23 U.S.C. § 130(b), supra. This statute, NRS § 704.300, provides:

1. After an investigation and hearing, which has been initiated either upon the commissions own motion, or as the result of the filing of a formal application or complaint by the Department of Transportation, the Board of County Commissioners of any county, the Town Board or Council of any town or municipality, or any railroad company, the commission may determine, an order for the safety of the travelling public:

a. The elimination, alteration, addition or change or a highway crossing or crossings over any railroad at grade, or above or below grade, including its approaches and surface.

b. Changes in the method of crossing at grade, or above or below grade.

c. The closing of a crossing and the substitution of another therefor.

d. The removal of obstructions to the public view in approaching any crossing.

e. Such other details of use, construction and operation as may be necessary to make grade crossing elimination, changes and betterment for the protection of the public and the prevention of accidents effective.

Pursuant to these legislative authorizations the State of Nevada DOT on February 2-4, 1987 conducted a diagnostic railroad safety review of nine crossings. Among the participants were representatives of the DOT, the S.P., the Union Pacific Railroad, Humboldt County, Lander County, Washoe County, the Federal Highway Administration, and the Nevada Public Service Commission. The report and findings, dated June 17, 1987, respecting the Herschell Road crossing are as follows:

740-796R, M.P. 408.87 SPTCo. Herschell Rd. in Humboldt County: This crossing is located on the S.P. mainline about eight and a half miles west of Winnemucca. The road ties into Grass Valley Rd. and serves several local ranches, homes, and mining interests in the area. Traffic is between 50 and 100 ADT with 20 thru trains including high speed Amtrak passenger trains. Maximum allowable train speed is 70 mph. The roadway speed is unposted but probably averages 45 mph, except at the crossing itself which has to be taken at 15 to 20 mph. The roadway alignment makes a `dog-leg' at the crossing and was the cause of a single car rollover on Sept. 17, 1986. The terrain is relatively flat except for the grade over the crossing (6' ± embankment). The crossing itself consists of timber planks in very rough condition, is too narrow (15'), and is on an (sic) 5° skew angle. The roadway approach width is 18'. Sight distance exceeds minimum requirements of 840' in advance of the crossing and 904' down the track. Existing protection consists of passive signing, crossbuck signs (R15-1) and advance warning signs (W10-1). The National Transportation Safety Board (NTSB) has recommended all mainline high speed crossings used by Amtrak be protected with automatic gates.

The diagnostic review team, therefore, recommends the crossing be upgraded with flashing lights augmented with automatic gates. Existing power is located near the crossing, approximately 46' west of the roadway and 52' south of the track. The crossing surface will be upgraded as follows: relocate the crossing 30' west to eliminate the dog-leg, flatten the approach gradient, widen crossing to 30' (future roadway width will be 24") and install an (sic) `Omni' prefab crossing panels (sic). The track substructure will be rehabilitated including construction of a drywell, new sub base, lateral perforated drains, engineering fabric, new ballast, crossties, and 136# CWR rail. The realignment of the southerly cattleguards, the remainder of the roadway R/W is by prescriptive rights according to the County Road Superintendent, Jim Smith. County `force account' labor will be used to construct the new roadway fill (use 6:1 fill slopes), pave an all weather, roadmix asphalt surface on the approach landing platform, approximately 24' × 100', install 75' galvanized, highway guardrail on both approaches, blade out old approach, and install new advance warning signs and pavement markings. There is a BLM/County borrow pit approximately two miles south of the crossing.

Traffic control will consist of a standard two lane closure when necessary. The new crossing and roadway will be constructed first, then traffic will be shifted over; however, the new road will not be open to traffic until the automatic gates are in operation. Concrete barricades from the NDOT district maintenance yard may be used (if available) to keep the crossing closed until the signals are operational and the roadway construction is complete

By June 12, 1989 (the date of the collision in question) none of the recommendations of the report had been followed. The excuse of the S.P. is that the federal government had not supplied the funds to make the improvements and that it had no duty to act until funds were provided.

The S.P. has persisted in its contention that the federal laws and regulations...