Weaver v. National RR Passenger Corp.
| Decision Date | 06 September 1994 |
| Docket Number | Civ. A. No. 93-0029-C. |
| Citation | 863 F. Supp. 291 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | Terry R. WEAVER, Administrator of the estate of Myral Weaver, Deceased, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORP., d/b/a Amtrak, CSX Transportation, Inc., and Norfolk Southern Railway Co., Defendants. |
Stephen Haiden Ratliff, Cadeaux & Taglieri, Washington, DC, for plaintiff.
Aubrey Russell Bowles, III, and Aubrey Russell Bowles, IV, Bowles and Bowles, Richmond, VA, for defendants.
Pursuant to a standing order entered on June 26, 1992, the court referred this case to the Honorable B. Waugh Crigler, United States Magistrate Judge, for proposed findings of fact and a recommended disposition. The Magistrate Judge filed his Report and Recommendation on August 9, 1994, finding that while there exists a triable issue of fact in this case with respect to the defendants' primary negligence, the plaintiff is precluded from recovering due to the contributory negligence of Myral Weaver (also "plaintiff's decedent" or "decedent"). The defendants filed their objections thereto on August 15 and the plaintiff filed his reply and objections on August 19. Said objections having been lodged with the court in a timely and appropriate manner, this court is required to undertake a de novo determination. Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir.1982). Having reviewed the Report, objections, and record of proceedings in this case, the court adopts the Report and Recommendation in accordance with this Opinion.
On March 13, 1994, at 3:35 p.m., Myral Weaver, age 65, drove her car in front of a train on the way home from a day of errands. She attempted to traverse the rocky, sloped grade crossing that connects the Weaver home and the home of the Weavers' married daughter to the main road paralleling the Norfolk Southern railway line on the opposite side of the tracks. It appears that Mrs. Weaver traveled south on the main road, with the train closing in on her. She turned right off of the road, drove up the fairly steep gravel grade on the east side of the crossing, and, apparently failing to hear or see the train to her right, was crushed by the Amtrak Cardinal ("Cardinal"), piloted by a CSX crew. The train was en route from Washington to Charlottesville, and according to the engineer the train was traveling at 79 miles per hour, one mile per hour under the federal speed limit.1 The engineer sat on the right side of the train, the opposite side from the approach of Mrs. Weaver's car.
Mrs. Weaver's son, the administrator of her estate, is now suing Amtrak, CSX, and Norfolk Southern for wrongful death. The plaintiff alleges that the companies failed to provide adequate warnings of approaching trains at the crossing, failed to maintain the crossing in a safe and proper manner, operated the train at an excessive rate of speed, failed to maintain the train under proper control, and failed to maintain a proper lookout.
In support of summary judgment, the defendants assert that the train was traveling within federal limits, which precludes a finding of negligence based on speed;2 that the crossing is signalled by crossbucks on either side; that the train sounded its horn as it approached a public crossing 983 feet north of the Weaver crossing, as required by law, and continued to sound the statutorily required signal as it approached the Weaver crossing; that adequate sight distance was provided to the north from the east side of the crossing; that the train was burning its front light; and that its crew kept a proper lookout and applied the train's brakes once it became apparent that Mrs. Weaver was not going to stop. The defendants only object to the Magistrate's Report insofar as the report found a triable issue of fact with respect to primary negligence.
There are no eye-witnesses to support the plaintiff's allegations that the train failed to keep a proper lookout, provide a signal, maintain a proper speed, or apply its brakes. Mrs. Weaver's husband, Cecil, was home at the time that she died, but he has no knowledge of the circumstances surrounding the terrible accident. Likewise, there are no eye-witnesses to counter the depositions of the defendant's witnesses, the Cardinal's engineer and baggageman, that Mrs. Weaver failed to look or stop at the crossing.
In opposition to summary judgment, the plaintiff rests entirely on the deposition of its expert witness, Archie Burnham, who states that the crossing is ultrahazardous. P.'s Objections, Ex. 2. The expert testified that the growth of vegetation restricted sight at the crossing, the train provided insufficient audible warning of its approach, the crossing grade was too rough and steep, and the traffic control devices at the crossing were inadequate. Id.
The defendants served a Request for Admissions on the plaintiff, requesting that the plaintiff admit the decedent's contributory negligence and the fact that the Cardinal train blew its horn through the crossing. The plaintiff responded that he had insufficient information with which to admit or deny the requests. At the hearing, the Magistrate found that the plaintiff "essentially admitted" defendants' requests for admissions, by failing to point to any contrary evidence that the decedent failed to stop or look, or that the train failed to blow its whistle. The plaintiff has objected to the Magistrate's Report on the grounds that the plaintiff's expert places the credibility of the defendants' witnesses in question and the plaintiff should not be bound by the testimony of the CSX crew, who are adverse witnesses in this case. The plaintiff argues that the expert's testimony that the crossing is ultrahazardous precludes a finding of contributory negligence.
Summary judgment is appropriate if there are no genuine issues of material fact from which the non-moving party could prevail. Fed.R.Civ.P. 56(c). The moving party shoulders its burden by demonstrating an absence of evidence to support the non-moving party's case, through affidavits, admissions on file, or depositions. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The non-moving party must then respond, by affidavit or other verified evidence, with specific facts showing a genuine issue for trial and cannot rest on the allegations contained in the pleadings alone. Id.; Fed.R.Civ.P. 56(e).
Neither a "scintilla of evidence" advancing the plaintiff's position, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986), nor counsel's argument, without evidence such as sworn affidavits attached to the objections to summary judgment, will satisfy the necessary standard for creating a triable issue, Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. In deciding a motion, the court must draw all inferences in the light most favorable to the non-moving party. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979).
Under Virginia law, contributory negligence will bar recovery in crossing accidents, Wright v. Norfolk and Western Ry., 245 Va. 160, 427 S.E.2d 724 (1993), unless a crossing is "public" within the meaning of Va.Code Ann. § 56-416 (Michie 1986). If the statutory crossing provisions apply, and a train fails to abide by its duty to provide a signal of approach, comparative negligence is the rule. § 56-416. The nature of a crossing is a question of fact. Norfolk and Western Ry. v. Fletcher, 198 Va. 397, 94 S.E.2d 251, 254 (1956). If there is evidence that could support a finding that the Weaver crossing is public within the meaning of Va. Code Ann. § 56-416 then evidence of contributory negligence will not bar recovery.
The statutory duty attaches only at a public crossing, which is "`a way open to all ... without distinction for passage or repassage at their pleasure.'" Wray v. Norfolk and Western Ry., 191 Va. 212, 61 S.E.2d 65, 69 (1950) (quoting 39 C.J.S. Highways at 909). Generally, public crossings are crossings of highways owned by the state. See Virginia Ry. v. Rodgers, 170 Va. 581, 197 S.E. 476, 476-77 (1938) (). In a narrowly defined class of cases, a technically private crossing may take on the attributes of a public crossing for purposes of the statute. See Chesapeake and Ohio Ry. v. Pulliam, 185 Va. 908, 41 S.E.2d 54, 56 (1947); Southern Ry. v. Abee's Adm'r, 124 Va. 379, 98 S.E. 31, 32 (1919). These cases involve crossings frequently used by the public where the railway company has treated the crossings as public, constructing crossbucks and whistle posts; see, e.g., Pulliam, 41 S.E.2d at 56; Abee's Adm'r, 98 S.E. at 32; and where the state has taken on the duty of maintaining a private road that is open to the public, due to the road's frequent use; Pulliam, 41 S.E.2d at 55-56.
Even where a crossing is not public within the meaning of the statutes, habitual and longstanding use of a crossing by the public with the knowledge and acquiescence of a railway company may give to the passageway the attributes of a public crossing at common law and cast upon a railway the duty of exercising ordinary care for the safety of others. Chesapeake and Ohio Ry. v. Faison, 189 Va. 341, 52 S.E.2d 865, 866 (1949); Fletcher, 94 S.E.2d at 254. Where only a common law duty exists, comparative negligence is inapplicable and evidence of contributory negligence will bar recovery. Id. ().
Mrs. Weaver lived in her house and used the crossing for most of her life. Her use was "habitual, general and of long standing, and was known to the employees of the railway company." Faison, 52 S.E.2d at 866. Accordingly, the railway clearly owed her a duty of due care at common law. This...
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