Sullivan v. Chicago and Northwestern Transp. Co., 67872

• Decision Date: 24 November 1982
• Docket Number: No. 67872,67872
• Citation: 326 N.W.2d 320
• Parties: Edward SULLIVAN, as Executor of the Estate of Barbara Gayle Sullivan and Paul Edward Sullivan, Deceased, and Edward Sullivan, Individually, Appellees, v. CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY, Successor in Interest to Chicago and Northwestern Railway Company, Appellant, T.J. Moyer and Jim Huddleston, Defendants.
• Court: Iowa Supreme Court

Page 320

326 N.W.2d 320

Edward SULLIVAN, as Executor of the Estate of Barbara Gayle Sullivan and Paul Edward Sullivan, Deceased, and Edward Sullivan, Individually, Appellees, v. CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY, Successor in Interest to Chicago and Northwestern Railway Company, Appellant T.J. Moyer and Jim Huddleston, Defendants.

No. 67872.

Supreme Court of Iowa.

Nov. 24, 1982.

Brent B. Green and Arthur E. Gamble of Gamble, Riepe, Burt, Webster & Davis, Des Moines, for appellant.

Michael R. Mundt of Franck, Mundt, Nepper & Franck, Denison, for appellees.

Considered by REYNOLDSON, C.J., and HARRIS, McGIVERIN, LARSON, and CARTER, JJ.

HARRIS, Judge.

Permission for this interlocutory appeal was granted to review the trial court's interpretation of Iowa Code § 307.26(5)(b) (1981), and also to review a number of pretrial rulings on discovery. Except for one of the several rulings on discovery, which we reverse in part, we affirm the trial court.

Barbara Sullivan and her three-year-old son Paul were killed when their vehicle was struck by a train owned by the defendant railway company (the railroad). The executor of the victims' estate brought this wrongful death action against the railroad and against the engineer and brakeman of the train. The colliding train was proceeding on a track owned by the railroad. It is claimed that an adjacent siding, which it also owned, was occupied by another of its trains waiting for the colliding train to pass. Plaintiff alleges the waiting train prevented the motorist from seeing the colliding train.

It became important whether the accident scene was an "extra-hazardous crossing" when a train was waiting on the siding so as to block the view of a motorist so as to require extraordinary safety precautions. Each side eventually obtained the services of an expert. Plaintiff's expert was prepared to testify that special safety precautions were needed. Defendants' expert was prepared to testify that the ordinary precautions in place at the scene were adequate.

The railroad filed a motion to adjudicate law points, Iowa R.Civ.P. 105, in which it requested the court to determine the crossing could not be considered extra-hazardous so as to require special precautions. The motion was based on Iowa Code § 307.26(5)(b) which provides: "A railroad crossing shall not be found to be particularly hazardous for any purpose unless the department [of transportation] has determined it to be particularly hazardous." It was shown the department of transportation never made such a determination.

In response to this motion plaintiff clarified his position by stating he did not argue that the crossing was permanently extra-hazardous and in need of special precautions such as electronic signals. He only argued that the crossing was extra-hazardous at those times when a second train was parked on the siding and that a flagman was necessary at those times. The trial court, noting that plaintiff would be bound by the position taken in the clarification, overruled the railroad's motion for adjudication of law points.

I. The trial court ruling was an interpretation of a statutory amendment enacted in 1977. 1977 Iowa Acts ch. 103 § 2. The amendment followed by only a few years an extensive statutory revision which established (See Code ch. 307) the present department of transportation (DOT). 1974 Iowa Acts ch. 1180 §§ 1-30.

Prior to the amendment in question our settled rules for particularly or extraordinarily hazardous crossings were well understood. ¹ In Maier v. Illinois Central Railroad Company, 234 N.W.2d 388, 391 (Iowa 1975), we summarized them as follows:

Case law on a railroad's duty to give warnings in addition to minimum statutory requirements has become well settled. It was summarized in Wickman v. Illinois Central R. Co., 253 Iowa 912, 917, 114 N.W.2d 627, 629-630 (1962) as follows:

"... [A] railroad company is not required to install a signalling device or station a flagman at every railway crossing. (Authority).... [S]tatutory requirements for warnings at railway crossings, as the cross bucks, ringing the bell and blowing the whistle, are minimum only; ... conditions may exist which require more. (Authorities).

"A third principle, elementary of course, is that in this class of cases our duty is not to decide whether the crossing in question was in fact extraordinarily hazardous so that some warning beyond the statutory requirements was called for, but only to say whether there was substantial evidence from which a jury might so find. (Authorities).

"The general rule also is that whether the condition of a crossing, with its surroundings, is such as to call for additional warning devices, or flagmen, is a question for the jury unless reasonable minds could reach only one conclusion from the evidence. (Authorities)."

We applied these principles again in Kuper v. Chicago & North Western Transp. Co., 290 N.W.2d 903, 905-06 (Iowa 1980). In Kuper we also applied a well established principle that crossing signs required by section 327G.2 delineate only a minimum railroad duty and do not establish a ceiling. Id. at 905.

In 1977 the legislature amended Code section 307.26(5) to explain the duties and responsibilities of the railroad transportation division of the DOT. Subsections a and b, together with their introductory phrase, were added. The provision now reads:

5. Advise and assist the director in the conduct of research on railroad-highway grade crossings and encourage and develop a safety program in order to reduce injuries or fatalities including, but not limited to, the following:

a. The implementation of a program of constructing rumble strips at grade crossings on selected hard surface roads.

b. The establishment of standards for warning devices for particularly hazardous crossings or for classes of crossings on highways, which standards are designed to reduce injuries, fatalities and property damage. Such standards shall regulate the use of warning devices and signs which shall be in addition to the requirements of section 327G.2. Implementation of such standards shall be the responsibility of the government agency or department or political subdivision having jurisdiction and control of the highway and such implementation shall be deemed adequate for the purposes of railroad grade crossing protection. The department, or the political subdivision having jurisdiction, may direct the installation of temporary protection while awaiting installation of permanent protection. A railroad crossing shall not be found to be particularly hazardous for any purpose unless the department has determined it to be particularly hazardous.

We have never been called upon to interpret the amended statute, though we did point out that it had been too recently adopted to affect our holding in Kuper, 290 N.W.2d at 906.

The subsections are stated as examples only of the sort of advice and assistance the administrator of the railroad division is expected to provide to the DOT director. It is apparent that other administrative programs aimed at the reduction of injuries or fatalities were also contemplated.

The railroad points to the broad language in the last sentence of the amended provision: "A railroad crossing shall not be found to be particularly hazardous for any purpose unless the department has determined it to be particularly hazardous." (Emphasis added.) The railroad maintains that the legislature wrote "sweeping changes into the railroad grade crossing law" by taking the extra-hazardous crossing determination from juries and placing it in the hands of the administrative agency. It argues the change was warranted by "modern day safety needs" of rail and motor traffic, as well as the "complex engineering considerations present at every railroad crossing." It is argued that the legislature was dissatisfied with our past application of the common law rules which, it is said, resulted in virtually all hazardous crossing cases being submitted for determination by a jury.

It seems curious that, if the legislature really intended the crucial and sweeping changes the railroad suggests, it would do so in the manner and at the place suggested. The rules governing negligence claims arising from railroad crossing accidents were long and painstaking in development. The cases, and the rules derived from them, date from early statehood. The change perceived by the railroad would shift responsibility, and presumably tort liability, from railroads to the public. And it is said that this is done by a sentence added to the second of two mere examples of advice--in an incomplete listing--that an agency division is required to give its director.

The question, posing the literal wording of the sentence against considerations raised by its placement, requires no answer here. Like the trial court we are persuaded that the statute does not serve the railroad as a defense to plaintiff's assertion in this suit. At most the provision could apply only to permanent conditions at a crossing. It does not lift from railroads the responsibility to warn of conditions made extra-hazardous by a temporary or transitory situation of the railroad's making.

Plaintiff is claiming that a flagman should have been posted at the crossing during the time the second train was on the siding so as to obstruct the view of plaintiff's decedent. The word "flagman" is not mentioned in the section, which refers only to "devices." Plaintiff argues that the omission of any reference to a flagman is not accidental. Accordingly, he concludes, there was no legislative intent to overturn the common law doctrine that required the use of flagmen in certain circumstances.

Under the general rules of statutory construction, Iowa National Industrial Loan Co. v. Iowa State Dept. of Revenue, 224 N.W.2d 437, 440 (Iowa 1974), we agree with plaintiff. The trial court was right in overruling the motion.

II. The parties argue a...