Witham v. Norfolk and Western Ry. Co.

• Decision Date: 20 March 1989
• Docket Number: No. 41A04-8802-CV-63,41A04-8802-CV-63
• Citation: 535 N.E.2d 1197
• Parties: Bobby G. WITHAM, Guardian of the Estate and Person of Eddie G. Witham, and Bobby G. Witham and Betty D. Witham, Individually, Plaintiffs-Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, Consolidated Rail Corporation, Andrew Dooley and R.D. Martin, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1197

535 N.E.2d 1197

Bobby G. WITHAM, Guardian of the Estate and Person of Eddie G. Witham, and Bobby G. Witham and Betty D Witham, Individually, Plaintiffs-Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, Consolidated Rail Corporation, Andrew Dooley and R.D. Martin Defendants-Appellees.

No. 41A04-8802-CV-63.

Court of Appeals of Indiana Fourth District.

March 20, 1989.

Jerome Mirza, Bloomington, Ill., Thomas E. Hamer, Anderson, for plaintiffs-appellants.

Nicholas C. Nizamoff, Cynthia L. Wodock, White & Raub, Indianapolis, for defendants-appellees.

MILLER, Judge.

Eddie G. Witham [Eddie] was severely and permanently injured when he disregarded flashing signals and the automobile he was driving was struck by a Conrail train at a crossing owned by the Norfolk and Western Railway [N & W]. We will refer to the defendants collectively as the Railroad, when appropriate. Witham's guardian and father, Bobby G. Witham, brought suit on behalf of Eddie and for loss of services suffered by himself and Eddie's mother, Betty D. Witham, against N & W, Conrail, and members of the train's crew. After extensive discovery, the Railroad filed a Motion for Summary Judgment which was granted. Witham appeals the grant of summary judgment asserting the trial court erred in determining Eddie was guilty of contributory negligence as a matter of law. He also claims that, even if Eddie were contributorily negligent, such negligence would not bar recovery if the Railroad was guilty of willful and wanton misconduct and that the trial court erred in determining the Railroad was not guilty of such misconduct as a matter of law.

We affirm.

FACTS

On Saturday, April 9, 1983 at approximately 11:00 a.m. Eddie Witham was westbound on U.S. 36 in Mt. Summit, Indiana. The N & W tracks crossed U.S. 36. The crossing was controlled by automatic flasher signals. As Eddie approached the crossing, the flashers were operating. He was a few car lengths ahead of a vehicle occupied by Ronald D. Poindexter, his wife, Carol Ann Poindexter, and their friend Chester Claborn. The occupants of the Poindexter vehicle testified in depositions, that Eddie was driving between 20 and 30 m.p.h. (within the speed limit) and braked as he approached the crossing. He stopped with the front of his car either on the tracks or a short distance from the tracks. Almost simultaneously with his stop ¹ his vehicle was struck by a southbound Conrail train which was traveling approximately 53 m.p.h. The witnesses heard the train's whistle at the same time or a second before the crash. As a result of the collision, Eddie suffered brain damage leaving him quadraplegic and unable to speak.

Numerous witnesses testified by deposition or affidavit the flashers at this crossing frequently malfunctioned by flashing when no train was in the area. According to the witnesses this malfunction occurred repeatedly for a period of many years. On the two days immediately preceding the day of the accident the signals were flashing when no train was present. The Poindexters and Claborn testified that when they crossed the track from the opposite direction earlier on the morning of the accident the signals were flashing but no train was present.

Eddie was home on leave from the military. He grew up in the area and was familiar with the crossing. He had crossed the tracks at least once on the previous evening.

N & W was responsible for the maintenance of the warning signals. The signals were activated by a motion sensor. The sensor was affected by weather conditions and could be reset to accomodate changes caused by differences in the amount of moisture present. In wet weather the sensors would sometimes activate when no train was present. Its maintenance records showed the signals were checked visually once a week and tested every other

week. During the week immediately preceding the accident, the signals were checked on April 4th, 5th and 7th. On April 4th and 7th the flashers were operating when no train was present and were reset by the signal maintainer.

DECISION

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits and testimony, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C); Crull v. Platt (1984), Ind.App., 471 N.E.2d 1211. Any doubt as to the existence of a genuine issue of material fact must be resolved in favor of the nonmovant. Mogan v. Southern Indiana Bank & Trust Co. (1985), Ind.App., 473 N.E.2d 158. All reasonable inferences must be resolved against the moving party. Boswell v. Lyon (1980), Ind.App., 401 N.E.2d 735.

Although summary judgment is rarely appropriate in negligence actions, when the facts are undisputed and support only the conclusion the plaintiff was contributorily negligent, such a finding may be entered as a matter of law. Law v. Yukon Delta, Inc. (1984), Ind.App., 458 N.E.2d 677; Pontious v. Littleton (1970), 146 Ind.App. 369, 255 N.E.2d 684. This cause of action arose before the Comparative Fault Act ² was enacted, therefore contributory negligence is a complete bar to recovery. Law, supra.

Witham asserts the trial court erred in determining Eddie was contributorily negligent as a matter of law based on its following conclusions of law:

"2. At the time of the collision, there was in effect in the State of Indiana a statute which provided:

9-4-1-106. Obedience to Signal Indicating Approach of Train--

Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty feet [50'] but not less than ten feet [10'] from the nearest track of such railroad and shall not proceed until he can do so safely, when:

(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train.

(b) A crossing gate is lowered or when a human flagman gives or continues to give the signal of the approach or passage of a train.

(c) A railroad train, as defined in this Act [9-14-1-1--9-4-1-136], approaching within approximately one thousand five hundred feet [1,500'] of a highway crossing emits a signal audible for such distance and such train, by reason of its speed or nearness to such crossing, is an immediate hazard.

(d) An approaching train is plainly visible and is in hazardous proximity to such crossing. [Acts 1939, ch. 48, 100, 289.]

3. Eddie G. Witham did not comply with the provisions of I.C. 9-4-1-106 and was contributorily negligent as a matter of law.

4. Eddie G. Witham's failure to comply with the statute was a proximate cause of the collision and his resulting injuries.

5. The undisputed material facts establish that Eddie G. Witham was not excused from complying with his statutory duties, and other duties imposed upon him by law, and was not justified in his failure to comply with his statutory duties, and other duties imposed upon him by law.

Proof of the violation of a safety statute creates a rebuttable presumption of negligence. Thorton v. Pender (1978), 268 Ind. 540, 377 N.E.2d 613. Witham does not deny Eddie failed to stop his vehicle "within fifty feet but not less than ten feet from the nearest track," but argues there are genuine issues of material fact concerning whether the signal "gave warning" of the approach of the train. ³ Relying on the depositions of two safety experts, he argues the frequent malfunction of the signals diminished the general level of warning given by the signals, so that the flashers were equivalent to a crossing where only crossbucks existed. Therefore, he argues IND.CODE Sec. 9-4-1-106(a) does not apply, and there are genuine factual questions in regard to whether Eddie violated paragraphs (c) and (d). ⁴

Witham relies on Consolidated Rail Corp. v. Thomas (1984), Ind.App., 463 N.E.2d 315 (where plaintiff Thomas recovered a jury verdict for injuries received in a car/train accident) for the proposition that the fact the signals were operating does not necessarily mean that the warning described in the statute was provided. However, Consolidated Rail is factually distinguishable from the case at bar. In Consolidated Rail, plaintiff Thomas was in the far right lane of a five lane, east/west highway which crossed four sets of tracks. The tracks at the crossing ran northwest and southwest intersecting the street at a forty-five degree angle. The two easterly sets of tracks were owned and maintained by N & W and the two westerly tracks were owned and maintained by Conrail. Thomas was driving in a westerly direction and thus would cross the N & W tracks first and then the Conrail tracks. There was a space of 119 feet between N & W's tracks and Conrail's tracks. N & W maintained warning signals and a crossing gate on the east side of the crossing to stop traffic approaching from the east. Conrail had similar warning signals on the west side of the crossing. When Thomas entered the crossing the N & W signals were not flashing and the gate was not down. Then, as described by the court, the following occurred.

"Thomas approached this crossing from the east at 12:45 a.m. on April 9, 1978. He observed that the N & W signals were not flashing and that the gate was not down. He passed over the N & W tracks and drove toward the Conrail tracks at approximately 20 miles per hour. At this time, a Conrail train was approaching the crossing from the northwest on the westernmost Conrail track, traveling at ten to twelve miles per hour. The train thus came toward Thomas from his right, at a forty-five degree angle from his line of sight. Thomas testified that, because the N & W signal was not activated, he was not looking for a train. His car hit the front of Conrail's lead engine, and Thomas suffered severe injuries to his jaw and right leg....

The N & W signals facing Thomas as he entered the crossing were not working....