Whitaker v. Burlington Northern, Inc.

• Decision Date: 27 July 1984
• Docket Number: No. 83-151,83-151
• Citation: 352 N.W.2d 589,218 Neb. 90
• Parties: Kermit L. WHITAKER and American Colloid Carrier Corporation, Appellants, v. BURLINGTON NORTHERN, INC., and Joel D. Schaffer, Appellees.
• Court: Nebraska Supreme Court

Page 589

352 N.W.2d 589

218 Neb. 90

Kermit L. WHITAKER and American Colloid Carrier Corporation, Appellants, v. BURLINGTON NORTHERN, INC., and Joel D. Schaffer, Appellees.

No. 83-151.

Supreme Court of Nebraska.

July 27, 1984.

Syllabus by the Court

1. Railroads: Motor Vehicles: Negligence. A traveler on a highway, when approaching and while crossing a railroad crossing, has a duty to look and listen for the approach of trains. He must look, where by looking he could see, and listen, where by listening he could hear, and if he fails without a reasonable excuse to exercise such precautions, then he is guilty of contributory negligence more than slight as a matter of law and no recovery can be had for damages resulting from a collision with a passing train.

2. Negligence. A person who is himself negligent may not recover under the doctrine of the last clear chance where his negligence is active and continuing to the very time of the accident. Such a situation involves questions of contributory and comparative negligence and not those of the last clear chance doctrine.

Winner, Nichols, Douglas & Kelly, Scottsbluff, for appellants.

Holtorf, Kovarik, Nuttleman, Ellison, Mathis & Javoronok, P.C., and William C. Beyers, Gering, for appellees.

BOSLAUGH, HASTINGS, and GRANT, JJ., and CHEUVRONT, District Judge, and COLWELL, District Judge, Retired.

GRANT, Justice.

Plaintiff Kermit L. Whitaker was the owner of a truck tractor and plaintiff American Colloid Carrier Corporation owned a trailer and the cargo loaded on that trailer. On March 8, 1981, Whitaker's tractor, being driven by Whitaker's employee, was pulling the corporation's trailer and cargo. The tractor-trailer rig was in collision with a train owned by defendant Burlington Northern, Inc., and being operated by BN's employee, defendant Joel D. Schaffer. Since the interests of the two named plaintiffs are treated by the parties as identical for the purposes of this lawsuit, they will be referred to collectively as plaintiff. Similarly, the two named defendants will be referred to as defendant.

Plaintiff sued defendant for damages resulting from the collision, alleging that defendant was negligent in not keeping a proper lookout; in not keeping its locomotive under proper control; in exceeding a safe speed; in failing to stop or attempting to stop the train; and in failing to slow down the train after the train operators saw plaintiff's rig stopped on the railroad tracks. In its answer defendant generally denied any negligence on its part, and alleged that plaintiff was contributorily negligent. At the conclusion of plaintiff's evidence at the jury trial of the issues, the trial court, on defendant's motion, directed a verdict in favor of defendant and dismissed the case. This appeal followed. Plaintiff assigns five errors, which may be consolidated into one, namely, that the court erred in granting defendant's motion for directed verdict because a jury question was presented either under general negligence theories or under the doctrine of last clear chance. For the reasons hereinafter set out we affirm.

In reviewing the case in the posture presented, we are bound by the rule, as set out in Morris v. Laaker, 213 Neb. 868, 331 N.W.2d 807 (1983), that the party against whom a verdict is directed is entitled to have every controverted fact resolved in favor of that party and to have the benefit of every inference that can reasonably be deduced from the evidence.

The record shows that the collision took place at the intersection of 21st Avenue and defendant's two main line railroad tracks east of Scottsbluff, Nebraska. Twenty-first Avenue is a two-lane road running north and south. The railroad tracks run slightly northwest to southeast and cross 21st Avenue at an angle of approximately 67? . The crossing was protected, as to traffic coming from the north, by a standard railroad crossbuck sign and a standard red, octagonal stop sign located a short distance north of the tracks. A paved highway known as the South Beltline Highway runs parallel to, and approximately 100 feet south of, the railroad tracks. The Beltline Highway intersects 21st Avenue at approximately the same angle of 67? . A standard red, octagonal stop sign to control southbound traffic on 21st Avenue at its intersection with the South Beltline Highway is located approximately 55 feet south of the southernmost tracks and approximately 45 feet north of the north edge of the Beltline Highway. At the northwest corner of 21st Avenue and the Beltline Highway, construction work was going on and an excavation had been dug. The construction work was not on either highway, but was sufficiently close so as to make a right turn onto the Beltline Highway difficult for a rig such as plaintiff's. Barricades had been erected on 21st Avenue a substantial distance to the north of the tracks to give notice of the construction work.

From the crossing at 21st Avenue the tracks run east in a straight line, with unlimited visibility. To the west of the crossing the tracks run straight for approximately eight-tenths of a mile and then curve to the north.

Defendant's train consisted of 110 coal cars, 5 locomotives, and 1 caboose. The train was 5,982 feet long and weighed 14,467 tons. Plaintiff's rig was 59 feet in overall length, consisting of a tractor approximately 18 feet long pulling a trailer approximately 42 feet long. The trailer was loaded with 25 tons of cargo.

Plaintiff's driver, Larry Kuhlman, testified that he was proceeding south on 21st Avenue and stopped at the stop sign to the north of the tracks. At this stop he turned his tractor to the west at an angle in order to observe up the tracks as far as possible. This maneuver let Kuhlman see the eight-tenths of a mile west to the curve in the tracks, and the maneuver was necessary because of the angle at which the road and tracks intersected. Kuhlman saw there was no train approaching, and heard no train, and then continued south. The tractor and all but the last 10 feet of the trailer were across the track when Kuhlman noticed the excavation and construction at the northwest corner of 21st Avenue and the Beltline Highway. When Kuhlman noticed the excavation, he knew he "couldn't make that turn where my tractor was because I was right on the right-hand side of the road there." He stopped his rig at this point, which was approximately at the stop sign for the Beltline Highway, and some 45 feet north of the highway itself. Kuhlman then backed his rig up "approximately seven, eight feet, to twist my tractor around again so I could start my tractor to get on the left-hand side of the road so that the trailer would miss the hole ...." Kuhlman further testified that after backing up he again went forward and was struck by the train at the halfway point of the 42-foot trailer. Kuhlman estimated he was actually on the tracks "a couple minutes."

Kuhlman never saw the train, nor did he hear the whistle until a second before the collision. It was undisputed that the train's whistle was blowing the last one-quarter of a mile before the collision. With regard to seeing the train, or looking for a train before backing up, Kuhlman testified there were no back windows in the tractor, and with regard to rear vision, "Well, just the mirrors on the side of the truck but, you know, you just see straight back, that...