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Hummer v. BNSF Railway Co.

June 8, 2007


The opinion of the court was delivered by: Joe Billy McDade United States District Judge


Before the Court are the parties' Motions for Summary Judgment and accompanying briefs. Defendant, Black's Railroad Transit Service, Inc. ("Black's" or "Black's Transit"), filed a Motion for Summary Judgment (Doc. 38) on October 25, 2006. Plaintiff filed a Response (Doc. 40) on November 14, 2006 and Black's Transit filed a Reply (Doc. 47) on November 22, 2006. In addition, Defendant BNSF Railway Co. ("BNSF") filed a "Joinder in Support" of Black's Motion (Doc. 45) on November 17, 2006 to which Plaintiff filed a Response (Doc. 50) on November 27, 2006.

Also before the Court is Plaintiff's Motion for Partial Summary Judgment (Doc. 39) filed on November 16, 2006. Both BNSF and Black's Transit filed Responses (Doc. 52 & Doc. 53) on December 5, 2006. Lastly, Plaintiff filed a Reply to the Responses (Doc. 54) on December 6, 2006. For the following reasons, Black's Motion (Doc. 38) and BNSF's Motion (Doc. 45) are DENIED and Plaintiff's (Doc. 39) Motion is GRANTED.


This case arises out of a motor vehicle accident that occurred on U.S. Route 67 near Rushville, Illinois.

Plaintiff, Donald Hummer, is a train operator and conductor for BNSF. (Doc. 39 at ¶ 7; Doc. 52 at 3; Doc. 53 at 2.) On March 29, 2005, Plaintiff was a passenger in a van driven by Richard Black. (Doc. 38 at ¶ 1,3; Doc. 40 at 2.) Mr. Black is the owner and manager of Black's Transit. (Doc. 38 at ¶ 1; Doc. 40 at 2.) Black's Transit had contracted with BNSF to provide transportation services for BNSF employees. (Doc. 39 at ¶ 2-4; Doc. 52 at 3; Doc. 53 at 2.) Beside Black's van, there was another vehicle proceeding on Route 67 that morning. Traveling behind the van was a pickup truck operated by David Simpson, a salesperson for Defendant, Agventure-West Central Illinois, Inc. ("Agventure").

Both vehicles were headed toward Beardstown, Illinois around 5:15 in the morning when several deer crossed into the road. (Doc. 38 at ¶ 6; Doc. 40 at 2.) Mr. Black saw the deer when they were approximately three to four hundred feet away. (Doc. 28 at ¶ 6; Doc. 40 at 2.) He forcefully applied the breaks and the vehicle came to a complete stop without hitting a deer. (Doc 40 at ¶ 9; Doc. 47 at 3.) According to the Plaintiff, Mr. Black kept the vehicle at a complete stop in the road for approximately 10-15 seconds. (Doc 40 at ¶ 9; Doc. 47 at 3.)

Simpson, however, was not so lucky. Simpson was not able to stop his pickup truck in time and he crashed into the back of Black's van. As a result of the collision, Plaintiff has had neck and back surgery and is unable to work as a conductor. (Doc. 40 at ¶ 10.) Plaintiff now brings suit against Agventure, Black's Transit, and BNSF. Plaintiff alleges that Simpson, as the agent of Agventure, was negligent in operating the pickup truck. In addition, Plaintiff alleges that Mr. Black was negligent in the operation of his van. Finally, Plaintiff alleges that Black's Transit was the agent of BNSF and brings a claim against BNSF (a railway company) under the Federal Employer's Liability Act, 45 U.S.C. §§ 51-60 ("FELA").

Black's Transit has now filed a Motion for Summary Judgment and argues that no reasonable jury could conclude that Mr. Black was negligent because his van was hit from behind after he safely responded to an emergency situation. According to Black's Transit, there was nothing else Mr. Black could do except stop and wait for the deer to get out of the road.

Plaintiff argues in response that Mr. Black should not have come to a complete stopped for ten to fifteen seconds in "an active traffic lane." (Doc. 40 at 2.) A reasonable person, Plaintiff argues, would not have come to a complete stop, would have pulled over onto the shoulder, and would have driven around the deer.

Thus, one of the key factual disputes is whether there were deer also on the shoulder of the road at the time of the accident. Black's Transit argues that there were deer on the shoulder and they prevented Mr. Black from pulling over. However, the pertinent evidence in the record on that issue comes from Plaintiff's deposition where he stated that deer were "down on the hill," and they were "coming up to the shoulder." (Plaintiff's Depo. at 138.)


Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the responsibility of informing the Court as to portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the movant has met its burden, to survive summary judgment the "non-movant must show through specific evidence that a triable issue of fact remains on issues on which he bears the burden of proof at trial." Warsco v. Preferred Tech. Group, 258 F.3d 557, 563 (7th Cir. 2001); See also Celotex Corp., 477 U.S. at 322-24. "The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support ...

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