The opinion of the court was delivered by: ROSZKOWSKI
STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE
Before the court is Plaintiff's motion to dismiss the tenth affirmative defense of Defendants Chicago Central and Charles J. Freeland. For the reasons which follow, the court grants Plaintiff's motion. Further, the court grants Defendants leave to amend their tenth affirmative defense within twenty-one days, in accordance with this Order.
On May 5, 1989, Plaintiff, Edward A. Anderson, filed a complaint in this court against Chicago Central and Pacific Railroad Co. (hereinafter Chicago Central), a Delaware corporation, and Charles J. Freeland. Because the parties are of diverse citizenship, this court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. On August 9, 1989, Defendants filed a third party complaint against Calvin Cook and Charles Strook. On July 2, 1990 Plaintiff filed a motion to dismiss Defendants' tenth affirmative defense, and that motion is the subject of this Order.
Plaintiff's complaint alleges that he was injured when the truck he was operating was struck by a train owned by Chicago Central. Plaintiff asserts that the crossbuck warning, the sole warning device other than standard traffic warning signs at the site of the collision, was an inadequate warning. Plaintiff argues that Defendant Chicago Central was negligent in failing to place adequate warning devices at the railroad crossing where the collision occurred, on Myelle Road in DeKalb County, Illinois. The gist of Plaintiff's motion to dismiss is that federal railway law does not free Chicago Central from its common law duty to provide a good and safe crossing.
Plaintiff's claims, insofar as they seek recovery based on the defendants' alleged failure to provide additional signals or warning devices at the grade crossing in question, are preempted by federal law pursuant to the Rail Safety Act of 1970 (45 U.S.C. Section 434) and the Highway Safety Act of 1973 (23 U.S.C. Section 130 et seq.), as amended, and the regulations issued by the Secretary of Transportation pursuant thereto,, [sic] which vested all legal duties related to such claims in the public authorities of the State of Illinois, which was required to, and did accept and undertake such duties so as to remain qualified for its continued receipt of federal highway funding.
Defendants' amended answer, filed June 20, 1990.
In analyzing a motion to dismiss, this court will not dismiss a complaint unless it is clear there are no set of facts that Plaintiffs could prove consistent with the pleadings that would entitle them to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Murphy v. Lane, 833 F.2d 106, 107 (7th Cir. 1987); Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908, 96 L. Ed. 2d 381, 107 S. Ct. 2489 (1987). The court will accept all well-pleaded factual allegations in the complaint as true. Vaden, 809 F.2d at 363; Doe v. St. Joseph's Hosp. of Fort Wayne, 788 F.2d 411, 414 (7th Cir. 1986). In addition, this court will view the allegations in a light most favorable to the non-moving party. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 84 L. Ed. 2d 821, 105 S. Ct. 1758 (1985); Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984).
Defendants argue that the doctrine of federal preemption applies here, so that a claim of common law negligence cannot stand against them. Federal law preempts state law if the two are in actual conflict; in other words, if it is impossible to comply with both state and federal law, or where the state law impedes the achievement of the objectives of the federal law. Consolidated Rail Corp. v. Smith, 664 F. Supp. 1228, 1236 (N.D. Ind. 1987), citing California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580-81, 94 L. Ed. 2d 577, 107 S. Ct. 1419 (1987); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984); Hines v. Davidowitz, 312 U.S. 52, 68, 85 L. Ed. 581, 61 S. Ct. 399 (1941). Courts have interpreted that Congress intended that the Federal Railway Safety Act, 45 U.S.C. §§ 421 - 445 (1988) (hereinafter FRSA) have total preemptive effect over state law. Consolidated Rail, 664 F. Supp. at 1236. However, the FRSA authorizes two specific exceptions to its preemptive effect. It allows states to adopt railway safety rules or continue such rules in force 1) until the Secretary of Transportation enacts a rules covering the same subject matter, or 2) when necessary to reduce a local safety hazard, so long as the state law is compatible with federal law and interstate commerce. 45 U.S.C. § 434 (1988).
The FRSA requires the Secretary of Transportation to study and develop solutions to problems related to railroad grade crossings. Id. at § 433. The Secretary adopted the Manual on Uniform Traffic Control Devices on Streets and Highways. 23 C.F.R. § 655.601. The Manual requires that the local agency with jurisdiction over a given rail crossing is to select devices for grade crossings. Id. Illinois law has authorized the Illinois Commerce Commission (ICC) to require the installation of warning devices at rail crossings. The relevant provision of the Illinois Commercial Transportation Law provides: