Wermerskirchen v. Can. Nat'l Rd.

• Decision Date: 05 March 2021
• Docket Number: No. 18-2039,18-2039
• Parties: RICHARD J. WERMERSKIRCHEN and CAROL M. WERMERSKIRCHEN, Appellants, v. CANADIAN NATIONAL RAILROAD, a/k/a CN, a/k/a CN RAILWAY, CHICAGO, CENTRAL & PACIFIC RAILROAD COMPANY, a/k/a CCP, ILLINOIS CENTRAL RAILROAD COMPANY, TIM DORSEY, and JOSH VOKEM, Appellees.
• Court: Iowa Supreme Court

RICHARD J. WERMERSKIRCHEN and CAROL M. WERMERSKIRCHEN, Appellants,
v.
CANADIAN NATIONAL RAILROAD, a/k/a CN, a/k/a CN RAILWAY,
CHICAGO, CENTRAL & PACIFIC RAILROAD COMPANY,
a/k/a CCP, ILLINOIS CENTRAL RAILROAD COMPANY,
TIM DORSEY, and JOSH VOKEM, Appellees.

No. 18-2039

SUPREME COURT OF IOWA

Submitted December 15, 2020
March 5, 2021

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.

A railroad seeks further review of a court of appeals decision reversing a grant of partial summary judgment in a case arising out of a collision. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

Mansfield, J., delivered the opinion of the court, in which Waterman, McDonald, Oxley, and McDermott, JJ., joined. Appel, J., filed an opinion concurring in part and dissenting in part. Christensen, C.J., took no part in the consideration or decision of the case.

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Jordan M. Talsma (argued), and John R. Walker, Jr., of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellants.

R. Todd Gaffney (argued) and Kellen B. Bubach of Finley Law Firm, P.C., Des Moines, for appellees.

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MANSFIELD, Justice.

This case involves a collision between a freight train and a road grader on a foggy Iowa winter morning. It is jarring to watch the locomotive's video of the accident. Suddenly, about six seconds before the crash, the road grader comes into sight approaching the tracks. The grader keeps moving forward continuously without stopping. The grader then begins to cross the tracks. About three seconds later, the train strikes the front of the grader and continues for another half mile or so before coming to stop.

As a result of the collision, the driver of the grader was seriously injured. He sued the railroad and the train crew alleging excessive speed, failure to keep a proper lookout, failure to brake, and failure to sound the horn properly.

The district court granted summary judgment to the defendants on all but the horn claims. It determined that federal law preempted the excessive speed claims since the train was in compliance with the applicable federal speed regulation. It also reasoned that the lookout and braking claims were either preempted as related to the excessive speed claims, or barred by lack of causation. In the court's view, even immediate braking at the earliest time when the grader became visible would not have prevented the serious collision that resulted. Two months later, a jury returned verdicts for the defendants on the horn claims. The plaintiffs appealed.

Following transfer, the court of appeals affirmed the defense verdict on the horn claims but reversed the summary judgment for the defendants on the other claims and directed a second trial. We granted further review and now reinstate the district court's grant of summary judgment.

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I. Facts and Procedural History.

On the morning of January 28, 2013, in rural Black Hawk County, freezing rain was falling, and the fog was heavy. A 113-car freight train operated by Chicago, Central & Pacific Railroad Company (CCP) was traveling westbound on the tracks at approximately forty-seven miles per hour.¹ Under federal regulations, the speed limit on that stretch of track was sixty miles per hour.

Meanwhile, Richard Wermerskirchen, a county employee, was operating a forty-foot-long John Deere 772G road grader to "scarify," or rough up, the gravel surfaces to improve traction for drivers. At around 9:30 a.m., Wermerskirchen's grader was heading northbound on Nesbit Road at about fifteen miles per hour as it approached the railroad crossing. The crossing was visibly marked with crossbucks and a yield sign, and there was also a yellow advance warning sign 700 feet from the intersection. Wermerskirchen was familiar with the intersection. He had crossed it approximately 100 times before, including two prior times that morning.

Visibility was poor, but Wermerskirchen claims that he listened for a horn and heard none. From prior experience, Wermerskirchen could normally hear the horn from approximately one mile away.

Wermerskirchen elevated the plow and scarifier and proceeded across the tracks at approximately eight to twelve miles per hour. The video on the lead locomotive shows the grader pulling onto the tracks directly in front of the train. On the video, the grader becomes visible approximately six seconds before the collision and enters the crossing

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approximately three seconds before the collision. Engineer Timothy Dorsey and conductor Joshua Yokem, anticipating an immediate collision, dove to the ground without activating the emergency brake. The locomotive struck the grader and continued another half mile before coming to a stop.²

The crash struck the front part of the grader and ejected Wermerskirchen out the grader's back window. He landed on the grass with a piece of metal lying across his legs. Dorsey and Yokem came running back, but Yokem was unable to lift the metal bar. Eventually emergency medical technicians were able to free Wermerskirchen. He suffered serious injuries, including a broken pelvis, a broken left ankle, five broken ribs, and a cracked sternum.

The event recorder on the lead locomotive showed that the bell was operating continuously up until the collision and that the horn had been sounded repeatedly. This was consistent with the recollection of both Dorsey and Yokem.³

On December 18, 2014, Wermerskirchen and his spouse sued CCP in the Black Hawk County District Court.⁴ As amended, their petition alleged negligence in the following respects: (1) operating the train at an excessive speed under the circumstances, (2) failing to maintain a proper lookout, (3) failing to apply the brakes in a proper manner, and (4) failing to sound an audible warning sufficiently in advance of the crossing.

On July 20, 2017, CCP moved for summary judgment on all claims. They maintained that the train complied with the federal speed limit and

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that federal law preempted Wemerskirchen's excessive speed claims. They also urged that the lookout and braking claims were related to speed and thus preempted or alternatively failed as a matter of law on causation. CCP argued that even Wemerskirchen's expert conceded that keeping a proper lookout and initiating braking immediately on seeing the grader would not have prevented the collision. Regarding the horn claims, CCP maintained that there was no issue of fact that its crew sounded the horn in accordance with federal regulations and that the horn was working properly.

Wermerskirchen resisted CCP's motion. Among other things, he argued that federal law did not have preemptive force because claims involving essentially local or individual safety hazards, such as the weather conditions on January 28, 2013, were not preempted. He also argued there were issues of fact as to whether the horn was operating properly and in compliance with federal regulations.

On September 15, 2018, the district court entered a ruling granting CCP's motion in part and denying it in part. The court found that weather conditions did not provide a basis for avoiding federal preemption and therefore the excessive speed claims were expressly preempted. The court also found that the lookout and braking claims were barred. To the extent Wermerskirchen was arguing that the train's speed left the crew with insufficient time to react before striking the grader, such a claim directly related to the speed of the train and was therefore preempted. To the extent Wermerskirchen was arguing that the crew could have and should have braked at the first moment when the grader would have been visible, that claim flunked a causation test. On that point, the undisputed evidence showed that any action would have been too late by then to prevent a violent collision. The district court denied summary judgment

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on the horn claims on the ground there were fact questions as to how and when the horn was sounded.

The horn-related claims proceeded to a jury trial beginning October 30. On November 7, the jury returned a verdict for CCP.

Wermerskirchen filed a notice to appeal on November 27. He argued that the district court had erred in granting summary judgment on the excessive speed, lookout, and braking claims. He also challenged certain evidentiary rulings and the giving of certain jury instructions by the district court. We transferred his appeal to the court of appeals.

On February 19, 2020, the court of appeals issued an opinion affirming in part and reversing in part the judgment entered after summary judgment and trial proceedings. That court concluded that partial summary judgment should not have been granted. In the court of appeals' view, preemption did not apply and there were issues of fact on causation. However, the court of appeals affirmed the jury verdict on the horn claims, determining that there had been no error in the evidentiary rulings or in the giving of jury instructions.

CCP filed an application for further review, which we granted.

II. Standard of Review.

"On further review, we have the discretion to review all or some of the issues raised on appeal or in the application for further review." State v. Roby, ___ N.W.2d ___, ___ (Iowa 2020) (quoting State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012)). We choose to review only the ruling granting summary judgment on the excessive speed, lookout, and braking claims. We let the court of appeals decision stand as our final decision on the trial of the horn-related issues.

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We review the grant of summary judgment for correction of errors at law. Susie v. Fam. Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 336 (Iowa 2020). As we said in Susie v. Family Health Care of Siouxland, P.L.C.,

The burden is on the moving party to demonstrate the nonexistence of a material fact question. However, the nonmoving party may not rely on mere allegations in the

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