Wessinger v. Southern Ry. Co., Inc.

• Decision Date: 25 October 1977
• Docket Number: Civ. A. No. 76-1372.
• Citation: 438 F. Supp. 1256
• Court: U.S. District Court — District of South Carolina
• Parties: Shirley B. WESSINGER, Plaintiff, v. SOUTHERN RAILWAY COMPANY, INC., a corporation, Defendant.

438 F. Supp. 1256

Shirley B. WESSINGER, Plaintiff, v. SOUTHERN RAILWAY COMPANY, INC., a corporation, Defendant.

Civ. A. No. 76-1372.

United States District Court, D. South Carolina, Columbia Division.

October 25, 1977.

Ronald L. Motley, Blatt, Fales, Bedingfield, Loadholt, Poole, Motley & Richardson, Barnwell, S. C., M. M. Weinberg, Jr., Weinberg, Bryan, Warner & Brown, Sumter, S. C., for plaintiff.

John Gregg McMaster, Columbia, S. C., for defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HEMPHILL, District Judge.

This is a diversity action. It was commenced by the filing of a complaint with the Clerk of this Court on August 2, 1976. The action grows out of a train-automobile collision that occurred on October 10, 1974, at about 11:00 o'clock p. m. at a railroad crossing near the city limits of Lexington, South Carolina. Plaintiff, Mrs. Shirley B. Wessinger, sues to recover damages for the loss of consortium sustained as a result of the injury to her husband, Harold W. Wessinger, in the collision, alleging gross negligence, carelessness, willfullness, and wantonness on defendant's part.¹ Wessinger, about 45 years of age, was riding alone and driving a 1970 Pontiac station wagon; he sustained extensive personal injuries in the collision, and the station wagon was demolished.

The train involved was Southern's freight train # 157, moving south from Columbia toward Lexington. It consisted of four diesel units and 86 cars, moving at a speed of 43 miles per hour at the time of the collision.² The speed limit as fixed by Southern's time table was 45 miles per hour. Mr. Wessinger was proceeding east on a paved South Carolina highway. As he approached the crossing, there were several warning signs on his right in the immediate area of the crossing: first, a 15 mph sign, second an advance warning sign, a round yellow disc with the letters "RR" on it, and third and at the crossing a reflectorized railroad cross-arm sign.

The cause is now before the court on defendant's Motion for Summary Judgment.³ The defendant contends that no genuine issue of material fact exists in the dispute and that plaintiff was guilty of contributory and grossly contributory negligence as a matter of law. For reasons hereinafter stated defendant's motion is denied.

Defendant bases its motion on the following facts: The train was advancing at a speed of 43 mph; approaching the crossing the train sounded its whistle as required by statute;⁴ before approaching the crossing there was a 15 mph sign, a round yellow sign with the letter "RR" on it, and at the crossing a reflectorized cross-buck sign; Mr. Wessinger saw the 15 mph sign and the yellow "RR" sign; Mr. Wessinger admitted that he did not look for the train, hear the train, or realize that the train was present.⁵ These facts, claims defendant, establish contributory and grossly contributory negligence as a matter of law.

In a Motion for Summary Judgment, the record will be reviewed in a light most favorable to the party opposing the motion. Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1961). And — summary judgment should not be granted unless the entire record shows a right to judgment so as to leave no room for controversy and establish affirmatively that the adverse party cannot prevail under any circumstances. Phoenix Savings and Loan, Inc. v. Aetna Casualty and Surety Co., 381 F.2d 245, 249 (4th Cir. 1967). Nor is summary judgment appropriate where inquiry into the facts is desirable to clarify the application of the law. Kirkpatrick v. Consolidated Underwriters, 227 F.2d 228 (4th Cir. 1955). Even though there may be no controversy over the basic facts, summary judgment should not be granted if the parties disagree as to the inferences which may properly be drawn. American Fid. & Cas. Co. v. London & Edinburgh Ins. Co., 354 F.2d 214, 216 (4th Cir. 1965). Under Rule 56 of the Federal Rules of Civil Procedure, any doubt as to the existence of a genuine issue of fact is to be resolved against the moving party. As the Fourth Circuit noted in Phoenix Savings and Loan, Inc., supra, "neither should summary judgment be granted if the evidence is such that conflicting inferences may be drawn therefrom, or if reasonable men might reach different conclusions. . . . Burden is upon party moving for summary judgment to demonstrate clearly that there is no genuine issue of fact, and any doubt as to the existence of such an issue is resolved against him." 381 F.2d at 249. (Citing 3, Barron & Holtzoff, Federal Practice & Procedure, §§ 1234, 1235 (Rules ed. 1958).

The law in South Carolina with respect to one approaching a railroad crossing is as follows:

Ordinary prudence requires every person who is in the full enjoyment of his faculties of hearing and seeing, before attempting a dangerous act or operation, to exercise them for the purpose of discovering and avoiding peril. (Citations omitted.) . . .. But the duty of the traveler arising under the foregoing rule is not an absolute one, but may be qualified by attendant circumstances. The view taken in this state is that it is ordinarily a question for the jury in the application of the standard of due care to say whether the attempt of the traveler to cross without looking and listening effectively was excusable or culpable; that is, whether or not it amounted to negligence or willful misconduct. (Citations omitted.) The true form of the inquiry is: Could the traveler by the reasonable use of his senses in the performance of his duty to look and listen under the circumstances surrounding him have discovered the proximity of the approaching train in time to avoid the accident?

The facts and conditions which may quality the duty and excuse the failure to look and listen within the foregoing rules are usually: First, where looking and listening would not have availed to avert the injury . . .; third, the presence of some imminent danger or emergency, not brought about by the traveler's own negligence; fourth, the presence and influence of unusual or extraordinary conditions, not created or controlled by the traveler himself, and especially where such conditions are brought about by the railway company, which are sufficient to distract and divert the attention of a man of ordinary prudence and self-possession from the duty of looking and listening effectively for an approaching train. Chisolm v. Seaboard Airline Ry., 121 S.C. 394, 114 S.E. 500, 502 (1922).

and —

It has never been held in this state that one about to cross a railroad track at a public highway or street crossing is under an absolute duty to stop, look, and listen, before going on said track, unless the exercise of ordinary care and prudence, under all the surrounding facts and circumstances, requires the adoption of such a course, and it is ordinarily a question for the jury to determine, in the application of the standard of due care, whether the attempt of a traveler to cross without looking or listening effectively was excusable or culpable. (Citations omitted.) Clark v. Southern Railway Company, 243 S.C. 27, 131 S.E.2d 844, 846-47 (1963). Accord: Seaboard Coastline Railroad Co. v. Owen Steel, D.C., 348 F.Supp. 1363 (1972).

Additionally,

. . . A traveler when reaching a railroad crossing and before attempting to cross the track or tracks must use his senses of sight and hearing to the best of his ability under the existing circumstances, and must look and listen in both directions for approaching trains, if not prevented from doing so by the railroad's fault and, to the extent the matter is under his control, he must look and listen at a place and in a manner that will make the use of his senses effective. (Emphasis added.) Connelly v. Southern Railway Company, 249 S.C. 363, 154 S.E.2d 569, 571 (1967).

Plaintiff submitted along with her memorandum opposing defendant's motion for summary judgment, the affidavits of two experts, Frank D. Fowler and J. Edwin Clark, Ph.D.⁶

In considering a motion for summary judgment, the court must consider the affidavits submitted in support of or opposition to the motion. (footnote # 3, supra). Fowler's affidavit reads in part as follows:

3. . . . I have given opinion testimony in safety-related litigation in both Federal and State courts. In particular, I have rendered opinion testimony regarding railroad grade crossing safety and railroad grade crossing design factors in Federal and State courts in Florida and Federal court in Georgia.

4. With respect to the above-styled cause of action: I have investigated the circumstances surrounding the accident between Herbert Wessinger and a Southern Railway train. I have read and reviewed the accident reports, witness statements and the reports supplied by the railroad. Additionally, I have personally visited the scene and made measurements and photographs. I have also reviewed recommended design standards promulgated by the American Association of Railroads and the American Association of State Highway and Transportation Officials. In addition, I have reviewed other documents and research into the problems of grade crossing safety.

5. The sight distance at this crossing does not meet the minimum requirements specified by the American Association of Highway and Transportation Officials, nor does it meet recommended standards promulgated by the Institute of Traffic Engineers.

6. The geographical layout of the crossing and the approach road render

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