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Isbell v. Union Pacific Railroad Company

January 25, 2001

JONATHAN ISBELL, AS ADMINISTRATOR OF THE ESTATE OF STEVEN A. KELSO, DECEASED, PLAINTIFF-APPELLEE,
v.
UNION PACIFIC RAILROAD COMPANY, DEFENDANT-APPELLANT, DONALD F. CAIN AND MISSOURI PACIFIC RAILROAD COMPANY, D/B/A UNION PACIFIC RAILROAD COMPANY, DEFENDANTS.



Appeal from the Circuit Court of Madison County. No. 96-L-182 Honorable Randall A. Bono, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

Union Pacific Railroad Company (defendant), appeals a jury verdict for Jonathan Isbell (plaintiff) as administrator of the estate of Steven A. Kelso, in plaintiff's cause of action for negligence against defendant.

Plaintiff's counts against Donald F. Cain and Missouri Pacific Railroad Company were dismissed at the trial, so defendant and plaintiff are the only parties in this appeal. Plaintiff's cause of action arose out of a fatal collision on December 12, 1995, as Steven drove his employer's truck south on Springfield Road. Steven's truck was struck by defendant's eastbound train at the Springfield Road crossing, which also is owned by defendant. The jury found that defendant was negligent and awarded plaintiff $2.5 million in damages; however, the jury reduced the award by 50% because of Steven's negligence. Defendant appeals.

On appeal, defendant contends that the trial court erred in failing to grant its motion for judgment notwithstanding the verdict (a) because plaintiff's claim that there were inadequate warning signs at the crossing was preempted by Federal law and (b) because plaintiff failed to prove that defendant's negligence was the proximate cause of Steven's death. In addition, defendant contends that the trial court erred in numerous evidentiary rulings, that the trial court failed to take judicial notice of statutes regulating crossings, that reversible errors occurred during closing arguments, that the court erred in allowing and refusing certain jury instructions, that the cumulative effect of the trial errors deprived defendant of a fair trial, and that the jury's verdict was excessive. We affirm for the reasons set forth below.

FACTS

The following evidence pertinent to the issues was adduced at the trial:

Thomas Allen, a contractor, testified that his business and his residence are located at the corner of Springfield Road and Miller Road, about one-half mile north of the Springfield Road crossing. On December 12, 1995, Steven delivered automotive parts to Allen's place of business.

Allen stated that he is very familiar with the Springfield Road crossing as he has lived and worked in the area since 1964. Allen described the crossing as deceiving, and he explained: "[I am] not quite sure what it is about [the crossing], but it seems like you're on the crossing [before you know it]. There is quite a grade change there. And if you're going from north to south, you can see the train cars off in the distance to your right. But I think you tend to lose focus of where the engine is."

Allen also testified that one of his employees had an accident in 1988 at the Springfield Road crossing, while the employee was driving one of Allen's trucks. After the accident, Allen told his employees not to go over the Springfield Road crossing. Allen stated that when crops are growing, the crops visually obstruct the crossing. Allen also stated that it is more difficult to see a train when traveling north on Springfield Road than when driving south, because there are some buildings, trees, a residence, and shrubbery on the right side of the road, south of the crossing, that obstruct the view. Allen knew of two other prior accidents involving a train and motor vehicle at the Springfield Road crossing. On cross-examination, Allen admitted that he did not witness the two other accidents.

Sergeant Michael Strong of the Madison County sheriff's office testified that he was dispatched to Steven's accident on December 12, 1995, about 2:11 that afternoon. Officer Strong inspected the area to determine the cause of the accident. Officer Strong noted that the railroad tracks are about eight feet lower than the road as you approach the crossing.

Officer Strong found nothing that would totally obstruct Steven's view of the train, but he stated that there were a few tall weeds in the farmer's field to the west of the crossing. Officer Strong also thought that the sun "possibly" affected Steven's view, as the sun was low in the sky and fairly bright. Officer Strong did not know why Steven did not stop for the train. Officer Strong found skid marks north of the crossing that could have been made by Steven's pickup truck.

Ronald Stubblefield, a locomotive engineer for the Burlington Northern Railroad in 1994, testified that he occasionally used defendant's Springfield Road crossing. Stubblefield explained that when he uses defendant's railroad tracks, he notifies defendant's dispatcher so that defendant knows that he is on its tracks. In June 1994, Stubblefield was involved in a collision with a pickup truck at the Springfield Road crossing. Stubblefield reported the accident to defendant.

Carl Smith, an employee of Norfolk Western for approximately 27 years, testified that a speed tape from a locomotive is equivalent to a black box on an airplane because it is an event recorder that gives data that occurred during a given period. Smith stated that from 1979 until he retired in 1995, he reviewed speed tapes about once a week. Smith explained that speed tapes are used to determine if an engineer contributed to an accident or if the engineer performed his duties properly.

Smith reviewed the speed tape from defendant's train that collided with Steven's truck. He determined that in the 16 seconds immediately before the collision, the locomotive traveled at 62 miles per hour for eight seconds and 61 miles per hour for another eight seconds. Smith stated that the train was placed in full emergency when it was traveling 62 miles per hour. Smith also explained that a train's speed can be converted into feet per second. According to Smith, if the train had been going 60 miles per hour, the maximum speed allowed for a train on these tracks, for the 16 seconds that the train was going more than 60 miles per hour, there would have been a 35.12-feet difference.

On cross-examination, Smith admitted that it takes a long time for a train to slow down, because of the length of a train. Smith also admitted that the train traveled at 58 miles per hour for four seconds shortly before the collision.

Donald Cain, the engineer who operated defendant's train on December 12, 1995, testified that he did not see Steven's truck prior to the collision. Cain became aware of a problem when Charles Cudworth put the train in emergency. Cain was sitting in the front seat on the right side of the locomotive, the opposite side from Steven's path of travel, and Cudworth was sitting in the front seat on the left side of the locomotive. Although there are windows on each side and in the front of the locomotive, Cain could not see to the left as Cudworth blocked his view.

Cain explained that an engineer of a train operates the throttle, brake, and whistle of the locomotive. On December 12, 1995, Cudworth was learning the route, and Cain was showing Cudworth the terrain and informing him where the signal locations were.

Cain stated that he would not have done anything differently even if he had known the prior accident history of the Springfield Road crossing. Cain also stated that he has more than 80 crossings in his territory and that he ...


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