Witham v. Norfolk and Western Ry. Co.

• Citation: 561 N.E.2d 484
• Decision Date: 19 October 1990
• Docket Number: No. 41S04-9010-CV-678,41S04-9010-CV-678
• Parties: Bobby G. WITHAM, Guardian of the Estate and Person of Eddie G. Witham, and Bobby G. Witham and Betty D. Witham, Individually Appellants (Plaintiffs), v. NORFOLK AND WESTERN RAILWAY COMPANY, Consolidated Rail Corporation, Andrew Dooley and R.D. Martin, Appellees (Defendants).
• Court: Supreme Court of Indiana

Page 484

561 N.E.2d 484

Bobby G. WITHAM, Guardian of the Estate and Person of Eddie

G. Witham, and Bobby G. Witham and Betty D.

Witham, Individually Appellants (Plaintiffs), v. NORFOLK AND WESTERN RAILWAY COMPANY, Consolidated Rail

Corporation, Andrew Dooley and R.D. Martin,

Appellees (Defendants).

No. 41S04-9010-CV-678.

Supreme Court of Indiana.

Oct. 19, 1990.

Rehearing Denied Dec. 12, 1990.

Jerome Mirza, Jerome Mirza & Associates, Bloomington, Ill., Thomas E. Hamer, Anderson, for appellants.

Cynthia L. Wodock, White & Raub, Indianapolis, for appellees.

ON CIVIL PETITION TO TRANSFER

DICKSON, Justice.

In this action for personal injury resulting from a railroad crossing collision, the trial court granted the defendants' motion for summary judgment. The Court of Appeals affirmed, Witham v. Norfolk and Western Ry. Co. (1989), Ind.App., 535 N.E.2d 1197. We reverse.

On April 9, 1983, 23-year-old Eddie J. Witham was severely injured when the automobile he was driving was struck by a Conrail train at the U.S. Highway 36 railroad crossing owned and maintained by Norfolk and Western Railway (N & W) in Mt. Summit, Indiana. The trial court entered summary judgment upon express findings that the proximate cause of the collision was Witham's unjustified and unexcused failure to comply with the statutory duties of motorists approaching railroad grade crossings, Ind.Code Sec. 9-4-1-106, and that the defendants' conduct was not willful, wanton, or reckless. ¹

The statute provided:

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 to 9-4-1-136], approaching within approximately 1500 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.

The Court of Appeals majority opinion acknowledged that factual questions existed regarding whether Witham violated subparagraphs (c) or (d) of the statute, but held that there was no genuine issue of material fact, and the facts established that Witham violated subparagraph (a).

The grant of summary judgment is proper under Indiana Trial Rule 56 if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Any doubt as to the existence of a factual issue should be resolved against the moving party, construing the contents of all pleadings, papers, affidavits, and testimony, and reasonable inferences therefrom, in favor of the nonmovant. Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552.

Proof of the violation of a safety regulation creates a rebuttable presumption of negligence. Thornton v. Pender (1978), 268 Ind. 540, 377 N.E.2d 613; Davison v. Williams (1968), 251 Ind. 448, 242 N.E.2d 101. However, the presumption may be rebutted by evidence that the person violating the statute "did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law." Davison, 251 Ind. at 457, 242 N.E.2d at 105. This standard has also been rephrased as "in spite of the exercise of reasonable care the violation nonetheless occurred." Kurowsky v. Deutsch (1989), Ind., 533 N.E.2d 1210, 1214. Witham contends that due to the notorious long-standing malfunctioning of the flashing lights, they did not constitute a signal device that "gives warning" and that any violation of this statute was excused or justified because his conduct was reasonably prudent under the circumstances.

A violation of Ind.Code Sec. 9-4-1-106(a) is not established merely upon a showing that a driver disregarded an operating signal device, but it must be shown that such device was "clearly visible" and "gave warning." Consolidated Rail Corp. v. Thomas (1984), Ind.App., 463 N.E.2d 315, 322.

Among the facts favorable to Witham were the following as noted in the dissenting opinion of Judge Conover:

"Here, the crossing flashers had been malfunctioning for many years. They often flashed when no train was in the area. In fact, [Witham] saw the flashers malfunctioning the day before the accident. The railroad had been specially notified of their malfunctioning 24 hours before the collision. One witness testified [Witham's] exposure to the malfunctioning flashers modified his perception of their meaning and gave "him an indication that it was also likely that there was no train on this occasion." (...