Loredo v. CSX Transportation, Inc.

ELMORE, Judge. This action arises out of a collision between an Amtrak train and a motor vehicle at a railroad grade crossing located off of Hillsborough Street between Raleigh and Cary. The crossing runs over two main line railroad tracks and provides access to two businesses located on the other side of the tracks. At approximately 4:34 p.m. on the afternoon of 25 April 1998, Victoria Torres was driving a van with her two children as passengers, Henry and Jazmine Loredo, when she attempted to cross over the tracks and was struck by the approaching train. Ms. Torres and Henry were killed by the collision, and Jazmine was severely injured. The crossing was controlled and maintained by defendants CSX Transportation, Inc. (CSX) and Norfolk Southern Corporation and — 510 — Norfolk Southern Railway Company (Norfolk Southern).1 A white stop bar was painted on the road and a stop sign and crossbucks sign were in place at the crossing where the van was traveling south to north. The Amtrak train was traveling east to west at a speed of approximately 68 miles per hour when it collided with the van’s right side. Defendants’ evidence showed that the train blew its horn for 21 seconds prior to the collision and that the driver’s side window on the motorist’s vehicle was rolled down at the time of the collision. Plaintiffs Reuben Loredo, J. Frank Wood, Jr., Guardian ad litem of Jazmine Loredo, and Thomas Berkau, Administrator of the Estate of Henry Loredo, filed two separate negligence actions, one in Wake County and one in Johnston County Superior Court, on 22 February 2000. Plaintiff Amelia Torres, Administratrix of the Estate of Victoria Torres, filed a negligence action in Wake County Superior Court on 24 April 2000. On 20 December 2002, Judge Jack W. Jenkins granted summary judgment against plaintiffs in one of the actions on their claim for punitive damages. The three actions were consolidated on 23 April 2003, and the parties have stipulated that all pleadings, motions, discovery and orders entered into in one action are binding in the other two actions. In an order entered 26 June 2003, the trial court granted summary judgment to defendants as to all of plaintiffs’ claims. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. §1A-1, Rule 56(c) (2003); DiOrio v. Penny, 331 N.C. 726, 728, 417 S.E.2d 457, 459 (1992). The record is reviewed in the light most favorable to the non-movant, and all inferences are drawn against the movant. Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). The trial court does not resolve issues of fact and must deny a motion for summary judgment if there is a genuine issue as to any material fact. Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d 666, 668 (1980). In North Carolina, railroad companies have a duty “ ‘to give to users of the highway warning, appropriate to the location and circumstances, that a railroad crossing lies ahead.’ ” Collins v. CSX Transportation, 114 N.C. App. 14, 18, 441 S.E.2d 150, 152 (quoting — 511 — Cox v. Gallamore, 267 N.C. 537, 541, 148 S.E.2d 616, 619 (1966)), disc. review denied, 336 N.C. 603, 447 S.E.2d 388 (1994). Automatic warning devices, such as gates or flashing lights, are required only at crossings “ ‘so dangerous that prudent persons cannot use them with safety unless extraordinary protective means are used.’ ” Price v. Railroad, 274 N.C. 32, 46, 161 S.E.2d 590, 600 (1968) (internal quotation omitted). Thus, a railroad company is negligent in failing to maintain an automatic alarm only when the crossing is more than ordinarily hazardous2, such as where the view at the crossing is obstructed. Id. This is so because “[a] railroad company is not an insurer of the safety of travelers, and it is not required to maintain a foolproof crossing or a crossing where no injury is possible.” Id. at 39, 161 S.E.2d at 595. In the instant case, the trial judge found as a matter of law that the conditions existing at the crossing did not render it “peculiarly and unusually hazardous.” In considering the motion for summary judgment, the trial court reviewed extensive deposition testimony by experts for both parties. Plaintiffs’ own expert, Archie Burnham, testified that the sight distance to the east from the stop bar was at least 1500 feet and that this sight distance was satisfactory. Also, defendants presented as exhibits two enlarged photographs of the crossing to illustrate the sight distance available on a clear day. Exhibit 2, which is referenced in the court’s order, shows the view from a vehicle at the stop sign of an approaching train 1800 feet from where the collision occurred. The trial judge concluded as follows: According to the plaintiffs’ own evidence and the undisputed details of Exhibit 2 described above, there is no genuine issue of material fact in this case as to the available sight distance at this crossing from a safe place (behind the stop bar and stop sign) on the day of the accident. The photographs and the referenced testimony from the plaintiffs’ own retained expert witness establish that there was a safe point from which the plaintiff could have looked for a train and traveled over this railroad crossing safely. Thus, as a matter of law, this Court finds that this crossing was not “peculiarly and unusually hazardous[.]” Plaintiffs contend that there were genuine issues of material fact in dispute, and that the issue of whether the crossing was peculiarly and unusually hazardous should have been submitted to the jury. — 512 — Plaintiffs argue that the trial court erred in considering only sight distance, rather than all the conditions at the crossing. Specifically, plaintiffs point out that the surprise of a train approaching at between 65 and 70 miles per hour when other trains approach at less than 10 miles per hour may create an extraordinarily dangerous crossing. Our Supreme Court has stated that the inquiry into whether a crossing is peculiarly dangerous focuses on “the conditions existing at or about the crossing.” Caldwell v. R.R., 218 N.C. 63, 70, 10 S.E.2d 680, 684 (1940). The Court described certain conditions that would show a crossing presents a peculiar danger: that it is a thickly populated portion of a town or city; or, that the view of the track is obstructed either by the company itself or by other objects proper in themselves; or, that the crossing is a much traveled one and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard by reason of bustle and confusion incident to railway or other business; or, by reason of some such like cause. Id. at 69, 10 S.E.2d at 683 (quoting Batchelor v. R.R., 196 N.C. 84, 87, 144 S.E. 542, 543 (1928)). Thus, plaintiffs are correct in that the motorist’s view of the tracks is not the only condition a factfinder may consider in determining whether a crossing is more than ordinarily hazardous. However, the variable speeds of other trains, e.g., a freight train as compared to a passenger train, is not a condition existing at the crossing at the time when a motorist must discern whether a train is approaching. Indeed, no case in North Carolina has recognized varying speeds of different trains as a factor bearing upon the degree of danger presented by conditions at a crossing. In contrast, our Supreme Court has consistently held obstructed view to be a material factor in analyzing the reciprocal duties of the railroad and a motorist at a grade crossing. See, e.g., Johnson v. R.R., 257 N.C. 712, 127 S.E.2d 521 (1962) (nonsuit improper where evidence showed box cars partially obstructed motorist’s view down tracks); Neal v. Booth, 287 N.C. 237, 214 S.E.2d 36 (1975) (directed verdict improper where motorist’s view obstructed by a building and railroad cars); Mansfield v. Anderson, 299 N.C. 662, 264 S.E.2d 51 (1980) (jury question where view severely obstructed by vegetation until motorist came within few feet of tracks such that motorist did not have safe position from which to look and listen). Here, the evidence presented to the trial court established that the crossing was marked by both a stop sign and stop bar indicating — 513 — a safe position to observe approaching trains, and there was an unobstructed view of more than 1,500 feet down the tracks for a motorist stopped behind either the stop sign or stop bar. Even viewed in the light most favorable to plaintiffs, there was no evidence placing the sight distance and unobstructed view into dispute. The record clearly indicates that the trial judge considered the evidence of sight distance at both 16 feet (at stop bar) and 21 feet (at stop sign) from the near rail. Plaintiffs assert that 24 feet from the near rail is also a reasonable point from which to measure the sight distance because the stop sign is 20 feet from the near rail and a driver’s head is at least 4 feet behind the front of the vehicle. However, plaintiffs offer no evidence that the sight distance for a motorist stopped 24 feet from the rail is limited and thus are speculating that the sight distance from this point would be inadequate. In sum, plaintiffs failed to present affirmative evidence that the sight distance from behind either the stop bar or stop sign was limited or obstructed to any extent. Cf. Parchment v. Garner, 135 N.C. App. 312, 314, 520 S.E.2d 100, 102 (1999) (plaintiffs expert submitted report documenting severe limitations on sight distance caused by trees and vegetation), disc. review denied, 351 N.C. 359, 542 S.E.2d 216 (2000); Collins, 114 N.C. App. at 16-17, 441 S.E.2d at 155 (evidence that motorist’s view partially obstructed by foliage near the tracks); Dixon v. CSX Transp., Inc., 990 F.2d 1440, 1451 (4th Cir.) (ample evidence that obstructed view prevented motorist from being able to look and listen for approaching train without stopping vehicle within 3 or 4 feet of tracks), cert. denied, 510 U.S. 915, 126 L. Ed. 2d 252 (1993). It is undisputed that a train 1500 feet away from the crossing is visible from a safe point behind either the stop bar or stop sign. The unobstructed view at the crossing permits a motorist to safely observe whether a train is approaching without using extraordinary protective means. Defendants’ duty under our common law is to warn a motorist of an approaching railroad crossing and train, and that duty is met when a motorist stopped safely behind a stop sign at the crossing has an unobstructed view of an approaching train. See Price, 274 N.C. at 46, 161 S.E.2d at 600. For the foregoing reasons, we hold that the undisputed evidence in the record before the trial court, considered in the light most favorable to plaintiffs, creates no genuine issue of material fact as to whether defendants had a duty to maintain gates or other mechanical warning and the grant of summary judgment must be affirmed. We do not reach plaintiffs’ assignment of error challenging the court’s ruling on the punitive damages claim. — 514 — Affirmed. Chief Judge MARTIN concurs. Judge HUDSON concurs in part and dissents in part. Footnotes [1] The North Carolina Railroad owns the underlying right of way at the crossing, but has entered into lease agreements with defendants Norfolk Southern and CSX. [2] The terms “more than ordinarily hazardous” and “peculiarly and unusually hazardous” are used interchangeably throughout the cases discussed herein.