Stallworth v. Illinois Cent. Gulf R.R., 81-7459
| Decision Date | 01 November 1982 |
| Docket Number | No. 81-7459,81-7459 |
| Citation | 690 F.2d 858 |
| Parties | 11 Fed. R. Evid. Serv. 1531 Elbert STALLWORTH, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Melvin W. Brunson, Mobile, Ala., for plaintiff-appellant.
Wesley Pipes, Sam W. Pipes, Mobile, Ala., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before GODBOLD, Chief Judge, MERRITT * and HENDERSON, Circuit Judges.
Appellant Stallworth drove his automobile into an Illinois Central Gulf Railroad locomotive at approximately 2:30 a.m. the morning of January 8, 1980 at a crossing in Mobile, Alabama. He sued the railroad on the theories of negligence and wantonness in Alabama state court. The railroad removed to federal court based upon diversity. In the jury trial the district court refused to allow Stallworth to introduce evidence regarding placement of flares by the railroad at the crossing immediately after the accident. At the close of Stallworth's evidence the court directed a verdict for the railroad on all counts. Stallworth appeals, raising the exclusion of the evidence of the flares and the directed verdict.
We present the facts in the light most favorable to Stallworth. See Boeing Company v. Shipman, 411 F.2d 365, 373-76 (5th Cir. 1969) (en banc). 1 Most of the facts are not disputed.
Conception Street Road ("Conception Street") is a two-lane, asphalt road within the city limits of Mobile. The road is straight for one-half mile on either side of the railroad tracks. To the west of Conception Street lies "a very heavy marshy area, and on the east side there is a railroad track and an area where ... trains come into the State Dock area...." 2 The testimony and photographs in evidence indicate that Conception Street is very dark at night. It is bordered by trees and shrubs, and there are no streetlights, no lights at the railroad crossing, and no buildings in close proximity to it. The night of the accident the road was covered with fog. Witnesses described weather conditions as: "exceptionally foggy," "very foggy in patches," "very, very foggy and the streets were sort of damp from the fog." 3
The only warning of the railroad crossing was a crossbuck sign. There were no automatic devices, no lights, no bells, no other signs, 4 and no railroad pavement markings. 5 The crossbuck sign did not serve its function well. The function of a crossbuck is to alert travelers to the presence of a railroad crossing, not necessarily to the presence of trains on the crossing. A crossbuck in good condition consists of an 11-foot pole with two four-foot boards crossing to form an "X" near the top of the pole. On one board is the word "RAILROAD" and on the other the word "CROSSING." The crossbuck should have a white background and black lettering, and the paint and lettering should be illuminated or reflectorized. The crossbuck sign, of course, should stand straight. 6
The crossbuck at the railroad crossing leaned away from the street. The board with "RAILROAD" on it had fallen off years earlier. Most of the original paint had weathered away. If examined closely, the letters "R O S I N G" could be deciphered. In a deposition read at trial, Knight, a railroad employee familiar with the railroad's crossbuck specifications, gave as his opinion that the crossbuck was in poor condition and should be replaced. Officer Skanes, driving north on Conception Street on a clear night some time during the month following the accident, could not see the crossbuck until he was within 30 feet of it. The condition of the crossbuck and the thick brush surrounding it made the sign difficult to spot even though Skanes was specifically looking for it.
The railroad does not regularly inspect crossbuck signs, but it will inspect a sign if an employee or a citizen reports one as being in bad condition. According to the railroad, the crossbuck on Conception Street had never been reported as being in bad condition.
Having set the scene, we now review the activity surrounding the accident. The Conception Street crossing was used approximately once a day for switching maneuvers. Thompson, switchman for the railroad, testified that the track crossing Conception Street was a "Y" used for railroad yard switching maneuvers. The "Y" was used the night of the accident to turn four locomotives around. The four locomotives entered the crossing from the south leg of the "Y." Once across the road the train reversed its direction, recrossed the road, and exited on the north leg of the "Y."
Thompson's job was to give signals (go ahead, back up, stop) to the engineer with a radio or a lantern. Going into the "Y" Thompson was on the first locomotive, the engineer on the fourth one. As the train approached the crossing Thompson walked into the middle of the street. Seeing no cars, he radioed to the engineer to back up. The train backed across the road. After the tracks were switched and aligned to allow the locomotives to exit on the north leg of the "Y," the train pulled up to the crossing and stopped. Thompson walked to the middle of the road to check for oncoming traffic. He saw no cars and gave the engineer the go ahead signal with his lantern. The engineer blew the whistle and started back across the road, and Thompson mounted the first locomotive, the one the engineer was on. The locomotive moved across the road at 3-4 miles per hour. Just before he cleared the crossing Thompson looked up and saw two headlights coming around a curve on Conception Street. He did not contemplate the matter further until he heard a skid and felt a bump as Stallworth's car collided with the third locomotive. When asked why he did not stay in the road to flag approaching cars and then board the last locomotive, Thompson replied: Thompson did not notice the condition of the crossbuck. He stated that it was not his responsibility to look for and report signs in need of repair. 7
The final participant in this scenario is Stallworth. The night of the accident he worked from 4:00 p.m. to 12:30 a.m., then went to the residence of a friend, left there about 2:00 a.m., and started home.
Stallworth entered Conception Street at a curve about a half mile from the railroad crossing. He was familiar with the road, having driven this route to and from work about half the time for 13 years. Stallworth testified:
It is dark ordinarily on this street and very hard to see, and I was looking more or less for some sort of sign to show me where I am all the time, but particularly when I get to the area when I know where the railroad crossing should be I am looking for a sign for there.
....
I sit up sort of straight in my car because it was kind of hard to see and I was leaning forward towards the steering column and driving slow enough to try to pick my way through the fog and look for the railroad crossing sign, or the bad spot in the side of the road or whatever I could see to give me a sign of how close I was to the track. But, it was really hard to pick up anything right there.
When Stallworth entered Conception Street he was traveling approximately 25-30 miles per hour. He released his foot from the gas pedal in anticipation of slowing down further. Stallworth could see no traffic on the road. He looked for the crossbuck sign, aware of both its presence and its condition, but never saw it. He continued down the street, headlights on low beam, window down, and radio on.
On direct examination Stallworth testified:
I didn't realize how close I was to the tracks until I was right up on them and saw the train. Like I said already, I released the gas pedal altogether and I reached for the brakes and applied the brakes. And I tried to make an effort to steer over into a ditch instead of the train. When I could see the train, it blended into the darkness so well, it was the same color of the night and no lightings or markings on it, and no paint that I could see.
On cross-examination, he repeated his story,
When I first saw the train, it was a matter of feet. It was just invisible in the dark. (The locomotive was the) same color as the night to me. Just a dark faded color, black or dark gray or whatever. It just seemed to blend into the night. I didn't look at it very long, though. I went right into it.
Q (by the railroad's counsel) Mr. Stallworth, as you were driving down that road that night and expecting to stop at a railroad crossing, how did you plan to stop your automobile within sight of the sign if you were going so fast that you could not stop without hitting the locomotive?
A I expected to see the sign much earlier than I saw the train.
Q The locomotive is considerably larger than the sign, isn't it?
A Yes, sir. The locomotive was the same color or blending into the night. I thought the sign would stand out somewhat. It should have been white. It should have stood out a little bit.
At the close of Stallworth's case in chief the railroad moved for a directed verdict on the entire case and on each cause of action. The court directed a verdict for the railroad, holding that the facts did not justify a finding of wantonness and that Stallworth was contributorily negligent as a matter of law.
In Alabama contributory negligence is a complete defense in a negligence action. Contributory negligence, however, will not defeat a claim of wantonness. Golden v. McCurry, 392 So.2d 815, 817 (Ala.1980) (per curiam) ().
Wantonness is a conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or...
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