Gonzalez v. Union Pacific RR. Co. ( 2015 )

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GONZALEZ v. UNION PACIFIC RR. CO.
Cite as 292 Neb. 281
M anuela Domingo Gaspar Gonzalez,
Personal R epresentative of the
Estate of Efrain R amos-Domingo,
deceased, appellant, v. Union Pacific
R ailroad Company, appellee.
___ N.W.2d ___
Filed December 18, 2015. No. S-14-986.
1. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most favor-
able to the party against whom the judgment was granted and gives
such party the benefit of all reasonable inferences deducible from
the evidence.
2. Negligence: Proof. To entitle a defendant to judgment under the com-
parative negligence statutory scheme, the defendant must prove that
any contributory negligence chargeable to the plaintiff is equal to or
greater than the total negligence of all persons against whom recovery
is sought.
3. Summary Judgment. Summary judgment is proper if the pleadings
and admissible evidence offered at the hearing show there is no genuine
issue as to any material facts or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to judgment
as a matter of law.
4. ____. On a motion for summary judgment, the question is not how the
factual issue is to be decided but whether any real issue of material
fact exists.
5. Negligence: Words and Phrases. Contributory negligence is conduct
for which the plaintiff is responsible, amounting to a breach of the duty
which the law imposes upon persons to protect themselves from injury
and which, concurring and cooperating with actionable negligence on
the part of the defendant, contributes to the injury.
6. Negligence: Proximate Cause. A plaintiff is contributorily negligent
if (1) he or she fails to protect himself or herself from injury, (2) his
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or her conduct concurs and cooperates with the defendant’s actionable
negligence, and (3) his or her conduct contributes to his or her injuries
as a proximate cause.
7. Actions: Negligence. Nebraska’s comparative negligence law, Neb. Rev.
Stat. §§ 25-21,185 to 25-21,185.12 (Reissue 2008), applies only to civil
actions in which contributory negligence is a defense.
8. Negligence: Liability. An important factor to be considered in appor-
tioning fault is the extent to which each person’s risk-creating conduct
failed to meet the applicable legal standard.
9. Negligence: Minors. A child is required to exercise that degree of
care which a person of that age would naturally and ordinarily use in
the same situation under the same circumstances; the degree of care
required increases when an actor is dealing with a dangerous activity.
10. Trial: Negligence: Evidence. Where reasonable minds may draw dif-
ferent conclusions and inferences regarding the negligence of the plain-
tiff and the negligence of the defendant such that the plaintiff’s negli-
gence could be found to be less than 50 percent of the total negligence
of all persons against whom recovery is sought, the apportionment of
fault must be submitted to the jury. Only where the evidence and the
reasonable inferences therefrom are such that a reasonable person could
reach only one conclusion, that the plaintiff’s negligence equaled or
exceeded the defendant’s, does the apportionment of negligence become
a question of law for the court.
Appeal from the District Court for Colfax County: M ary
C. Gilbride, Judge. Reversed and remanded for further
proceedings.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder,
Chaloupka, Longoria & Kishiyama, P.C., L.L.O., and Horacio
J. Wheelock, of Law Office of Horacio Wheelock, for appellant.
Mark E. Novotny and Cathy S. Trent-Vilim, of Lamson,
Dugan & Murray, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, McCormack, and
Cassel, JJ.
Wright, J.
NATURE OF CASE
On July 27, 2005, 13-year-old Efrain Ramos-Domingo
(Efrain) was struck and killed by a Union Pacific Railroad
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Company (Union Pacific) train in Schuyler, Nebraska. Manuela
Domingo Gaspar Gonzalez (Plaintiff), Efrain’s mother, as per-
sonal representative of Efrain’s estate, filed a wrongful death
action against Union Pacific. Union Pacific moved for sum-
mary judgment on the wrongful death claim, which motion
the district court sustained. The court concluded that as a
matter of law, Union Pacific had not violated its standard of
care, and that Efrain had violated his duty to look and lis-
ten for the oncoming train. We reverse, and remand for fur-
ther proceedings.
SCOPE OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives such party
the benefit of all reasonable inferences deducible from the evi-
dence. DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d
867 (2015); Dresser v. Union Pacific RR. Co., 282 Neb. 537,
809 N.W.2d 713 (2011).
[2] To entitle a defendant to judgment under the compara-
tive negligence statutory scheme, the defendant must prove
that any contributory negligence chargeable to the plaintiff
is equal to or greater than the total negligence of all persons
against whom recovery is sought. Fickle v. State, 273 Neb.
990, 735 N.W.2d 754 (2007), modified on denial of rehearing
274 Neb. 267, 759 N.W.2d 113.
[3] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show there is no
genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
Estate of Powell v. Montange, 277 Neb. 846, 765 N.W.2d
496 (2009).
FACTS
At the railroad crossing in Schuyler, there are two sets
of tracks, one for eastbound trains and one for westbound
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trains. On the date of the accident, an eastbound train was
on the south track and a westbound train was on the north
track. They passed each other just east of the railroad cross-
ing. At approximately 1 p.m., Efrain proceeded to cross from
the south set of railroad tracks after the eastbound train had
passed. Efrain was struck and killed by the westbound train as
he tried to cross the north set of tracks.
In Plaintiff’s initial complaint, she alleged claims for
wrongful death and breach of fiduciary duty. The district
court granted a motion to dismiss filed by Union Pacific
with respect to the wrongful death claim and granted Union
Pacific’s motion for summary judgment on the breach of
fiduciary duty claim. Plaintiff appealed. We affirmed the dis-
trict court’s order in the breach of fiduciary duty claim, but
reversed the court’s order regarding Plaintiff’s wrongful death
claim. See Gonzalez v. Union Pacific RR. Co., 282 Neb. 47,
803 N.W.2d 424 (2011).
In the operative complaint filed after remand, Plaintiff
alleged that Efrain’s death was caused by Union Pacific’s
negligence. It was alleged that the noise of one train was loud
enough to prevent a pedestrian from determining whether there
was one train or two at the crossing.
Both parties offered evidence at a summary judgment hear-
ing. The district court took judicial notice of all the exhib-
its that had been offered by the parties in prior hearings.
Included in the evidence was a summation of data collected
by Union Pacific from an event recorder on the eastbound
train. According to that summation, the last car of the east-
bound train cleared the crossing 7.1 seconds prior to the
time the westbound train struck Efrain. The lead locomotive
on the westbound train became even with the last car of the
eastbound train approximately 250 feet east of the crossing.
The westbound train was traveling at 59 m.p.h., and there was
evidence that the view of the westbound train would have been
obscured to one waiting at the south side of the crossing until
approximately 2.9 seconds prior to the time the train entered
the crossing.
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Union Pacific offered the deposition testimony of the con-
ductor and the engineer of the westbound train. The conduc-
tor did not recall seeing the eastbound train. He stated that
5 or 6 seconds before the westbound train entered the cross-
ing, he could see cars stopped on both sides of the railroad
tracks and see the crossing gates were down. A second or
two before the westbound train entered the crossing, he saw
Efrain maneuver his bicycle around the driver’s side of a car
that was stopped in the first position south of the closed gate
and then enter the crossing. Efrain was not on the sidewalk
but, instead, was in the middle of the street as he entered
the crossing.
The conductor believed the train’s horn was blowing, and
when he stood up, he saw Efrain and made eye contact with
him. The conductor testified that Efrain “got off the seat of
his bicycle with both feet on the pedals” and that he thought
the boy was going to stop. He stated that Efrain pedaled a few
more times and, at the last second, he took his eyes off the
train and tried to make it across. The conductor thought for
a split second that Efrain might make it, and then he heard
the collision.
The westbound train’s engineer testified he did not recall
seeing an eastbound train. He did not see Efrain, but he did
see two boys cross safely as the train approached. He recalled
those boys crossing either before the gates went down or as
the gates were going down. He then heard the conductor yell
that he saw a boy on the tracks, and he immediately applied
the emergency brake. The engineer reviewed the data from the
train’s event recorder and stated that it appeared the train horn
stopped sounding 2 or 3 seconds before the accident.
A claims representative for Union Pacific stated in an affi-
davit that based upon his investigation, the westbound train’s
horn was blowing “at the appropriate time as it approached
the crossing.” He averred that the gates, lights, and other
signals at the crossing were actively and properly working.
Union Pacific’s manager of signal maintenance also testified
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that all the lights and signals at the crossing were working
properly on the day of the accident.
At the time of the accident, one witness was stopped in a
vehicle at the south side of the crossing. In his affidavit, he
stated that he saw several boys try to cross the tracks after the
eastbound train passed and that, at that time, it was hard to see
the approaching westbound train because the eastbound train
was blocking the view of the tracks looking eastward.
Plaintiff’s expert, Charles Culver, was a locomotive engineer
with 44 years of railroad industry experience and a railroad
safety instructor. He explained how train crews warn vehicu-
lar and pedestrian traffic of a train’s approach. Culver opined
that based on the configuration of the tracks at the crossing,
the view of the approaching westbound train would have been
obstructed “until the eastbound train had cleared the leading
locomotive of the westbound train.”
Culver stated that Efrain was not provided with the required
warnings of the westbound train’s approach to the cross-
ing. He stated that applicable federal regulations and Union
Pacific’s general operating rules in effect in 2005 required a
train horn to sound for at least 15 seconds prior to entering a
crossing and to sound the horn all the way through the cross-
ing. Culver reviewed the horn activation records from the
westbound train and concluded that its horn sounded for 12
seconds prior to entering the intersection, but did not sound
for the 3 seconds prior to the collision. He opined that the
westbound train approached the crossing at a rate of 86.7 feet
per second and that a proper audible warning was “crucial
for safe railroad operation.” He further opined that Union
Pacific’s failure to comply with the rules and regulations rela-
tive to audible warnings was a matter of negligence on the
part of Union Pacific.
The district court entered summary judgment in favor of
Union Pacific. The court concluded that Union Pacific did not
breach its standard of care. It also concluded that Plaintiff’s
assertions about the sounding of the train’s horn and the
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reduced visibility at the crossing were “speculative [at] best
and . . . not sufficient to create a material issue of fact on the
issue of breach of the standard of care.” It concluded that as a
matter of law, Efrain violated his duty to look and listen for the
approaching train and to obey the crossing gate by maneuver-
ing around the closed gate and attempting to cross the intersec-
tion. Plaintiff filed this timely appeal.
ASSIGNMENTS OF ERROR
Plaintiff assigns as error, summarized and restated, that the
district court erred in finding there was no genuine issue of
material fact as to whether Union Pacific breached its duty of
care and erred in finding as a matter of law that Efrain’s fail-
ure to follow the safety rules was contributory negligence that
barred his recovery.
ANALYSIS
[4] On a motion for summary judgment, the question is not
how the factual issue is to be decided but whether any real
issue of material fact exists. Harrison v. Seagroves, 250 Neb.
495, 549 N.W.2d 644 (1996). In reviewing a summary judg-
ment, an appellate court views the evidence in a light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence. Id.
[5,6] The issue is whether Efrain was, as a matter of law,
contributorily negligent to such a degree as to bar his recov-
ery. Contributory negligence is conduct for which the plaintiff
is responsible, amounting to a breach of the duty which the
law imposes upon persons to protect themselves from injury
and which, concurring and cooperating with actionable negli-
gence on the part of the defendant, contributes to the injury.
Springer v. Bohling, 263 Neb. 802, 643 N.W.2d 386 (2002).
A plaintiff is contributorily negligent if (1) he or she fails to
protect himself or herself from injury, (2) his or her conduct
concurs and cooperates with the defendant’s actionable neg-
ligence, and (3) his or her conduct contributes to his or her
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injuries as a proximate cause. Connelly v. City of Omaha, 284
Neb. 131, 816 N.W.2d 742 (2012).
[7] Nebraska’s comparative negligence law, Neb. Rev. Stat.
§§ 25-21,185 to 25-21,185.12 (Reissue 2008), applies only to
civil actions in which contributory negligence is a defense.
Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d
604 (2001). To entitle a defendant to judgment under the com-
parative negligence statutory scheme, the defendant must prove
that any contributory negligence chargeable to the plaintiff
is equal to or greater than the total negligence of all persons
against whom recovery is sought. Fickle v. State, 273 Neb. 990,
735 N.W.2d 754 (2007), modified on denial of rehearing 274
Neb. 267, 759 N.W.2d 113.
Therefore, in order for Union Pacific to be entitled to sum-
mary judgment, it had the burden of proving under the facts
viewed most favorably to Efrain that Efrain’s negligence was
equal to or greater than the negligence of Union Pacific.
[8,9] An important factor to be considered in apportioning
fault is the extent to which each person’s risk-creating conduct
failed to meet the applicable legal standard. Tadros v. City of
Omaha, 269 Neb. 528, 694 N.W.2d 180 (2005). A child is
required to exercise that degree of care which a person of that
age would naturally and ordinarily use in the same situation
under the same circumstances; the degree of care required
increases when an actor is dealing with a dangerous activity.
Humphrey v. Burlington Northern RR. Co., 251 Neb. 736, 559
N.W.2d 749 (1997). Union Pacific was required to exercise
that degree of care imposed upon a railroad by federal regu-
lations and its own code of operating instructions to provide
proper and adequate warnings of its trains’ approach to rail-
road crossings.
In considering the negligence of the parties, we compare
the duty of care imposed upon a 13-year-old boy on a bicycle
to the duty required of a railroad company whose train is
approaching a pedestrian and automobile crossing. We view the
evidence in a light most favorable and give the benefit of all
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reasonable inferences deducible from the evidence to the party
against whom the judgment was granted.
The evidence offered at the summary judgment hearing
showed that just moments before Efrain was struck by the
train, two other children crossed with their bicycles after the
eastbound train had passed. Efrain also crossed the south tracks
but was killed as he attempted to cross the north set of tracks
upon which the westbound train was approaching.
Generally, it is the duty of a traveler on a highway, or a
pedestrian in this case, when approaching a railroad crossing,
to look and listen for the approach of trains. He or she must
look where by looking, he or she could see, and listen where
by listening, he or she could hear. See, Kloewer v. Burlington
Northern, Inc., 512 F.2d 300 (8th Cir. 1975); Crewdson v.
Burlington Northern RR. Co., 234 Neb. 631, 452 N.W.2d
270 (1990).
Efrain had a duty to look and listen for the oncoming train
and to stop at the crossing gate. It can reasonably be inferred
that a 13-year-old boy knows that railroad crossings are dan-
gerous. And such individual has a duty not to proceed to cross
the railroad tracks until it is safe to do so.
On the other hand, it is undisputed that Union Pacific knew
the dangers associated with a railroad crossing and that it
must sound its horn prior to and through the crossing. Plaintiff
offered evidence that applicable federal regulations, combined
with Union Pacific’s general operating rules in effect in 2005,
required the train horn to sound for at least 15 seconds prior
to entering the crossing and to sound all the way through the
crossing. Plaintiff’s expert testified that the horn activation
records from the westbound train showed the horn sounded
for 12 seconds prior to entering the intersection, but did not
sound for the 3 seconds prior to the accident. Plaintiff’s expert
opined that a proper audible warning was crucial for safe rail-
road operation.
Plaintiff offered evidence that two other children crossed
the tracks just before Efrain. There was evidence that when
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Efrain attempted to cross the tracks, his view was blocked
by the departing eastbound train on the tracks until the last
car of the eastbound train passed the first locomotive of the
westbound train. A motor vehicle operator who was stopped
at the south side of the crossing said it was hard to see the
westbound train because the eastbound train blocked the view
of the westbound train.
The district court erred in concluding as a matter of law that
Union Pacific did not violate its standard of care. There was
evidence that the view of the westbound train was obscured
and that the train failed to sound its horn for 3 seconds prior
to the collision. Union Pacific had a duty to properly sound
its horn as the train approached the railroad crossing in order
to warn of its approach. The failure to properly sound the
horn through the crossing was evidence that Union Pacific
was negligent.
Efrain had a duty to look before he crossed the tracks. But
there was evidence that his view of the westbound train was
obstructed. He had 7.1 seconds in which to safely cross both
tracks. It can reasonably be inferred that Efrain’s view of the
westbound train was obstructed for 4 seconds, until the last car
of the eastbound train cleared the crossing and passed the first
engine on the westbound train. At this point, the westbound
train was 250 feet east of the crossing. The train was traveling
at 86.7 feet per second. It can reasonably be inferred that after
the eastbound train passed the crossing, Efrain had less than 3
seconds in which to see and react to the westbound train before
he was killed.
Efrain had a duty to listen for the train’s approach. But there
was evidence that the horn was not blown for 3 seconds prior
to entry of the intersection. It can reasonably be inferred that
Efrain did not hear the train as it approached because its horn
was not sounded. There was sufficient evidence to establish a
reasonable inference that Union Pacific was negligent in fail-
ing to properly sound its horn and that its negligence was a
proximate cause of Efrain’s death.
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In apportioning fault, we examine the extent to which
Efrain’s and Union Pacific’s conduct failed to meet the appli-
cable standards of care. See Tadros v. City of Omaha, 269
Neb. 528, 694 N.W.2d 180 (2005). Efrain’s conduct is to be
compared to that of a 13-year-old boy, and Union Pacific’s
conduct is to be compared to the experience of a railroad with
over a century of operation and its knowledge of the dan-
gers of railroad crossings. It can reasonably be inferred that
Efrain’s duty to see was hindered by the eastbound train and
his duty to hear was hindered by the westbound train’s failure
to warn of its approach by properly sounding its horn. It can
also be inferred that Union Pacific was negligent in failing to
sound its horn continuously for 15 seconds prior to the rail-
road crossing.
The district court’s conclusion that Union Pacific did not
breach its standard of care was in effect a determination that
Efrain’s negligence was the sole proximate cause of his death.
This determination failed to consider that there was a reason-
able inference that Union Pacific failed to properly warn of the
westbound train’s approach to the crossing.
[10] Where reasonable minds may draw different conclu-
sions and inferences regarding the negligence of the plaintiff
and the negligence of the defendant such that the plaintiff’s
negligence could be found to be less than 50 percent of the
total negligence of all persons against whom recovery is
sought, the apportionment of fault must be submitted to the
jury. Traphagan v. Mid-America Traffic Marking, 251 Neb.
143, 555 N.W.2d 778 (1996). Only where the evidence and
the reasonable inferences therefrom are such that a reasonable
person could reach only one conclusion, that the plaintiff’s
negligence equaled or exceeded the defendant’s, does the
apportionment of negligence become a question of law for the
court. Id.
There are cases in which this court has considered the
comparative negligence of a minor. But it is clear that each
case must be considered on the facts presented. In Humphrey
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v. Burlington Northern RR. Co., 251 Neb. 736, 559 N.W.2d
749 (1997), a child almost 11 years old was injured when
she tried to jump onto a moving train. There, we concluded
as a matter of law that the plaintiff was guilty of contribu-
tory negligence sufficient to bar recovery from the railroad
company. She had repeatedly been warned that trains were
dangerous, and she admitted to knowing she could get hurt
by jumping onto a train. She had made an earlier attempt to
jump onto a train and let go of the ladder because it felt like
her arm was “‘ripped off.’” Id. at 738, 559 N.W.2d at 752. But
most significantly, there was no evidence that the defendant
was negligent.
Thus, Humphrey is readily distinguishable. We did not
address the comparative negligence between the minor and
the railroad company because the railroad was not negligent.
It was uncontradicted that the minor’s persistence in trying
to climb on the ladder of a railroad car while it was mov-
ing required the district court to declare, as a matter of law,
the minor guilty of contributory negligence sufficient to bar
recovery. Her negligence was the sole proximate cause of
her injury.
But this case is different. Plaintiff was entitled to the reason-
able inference that the intersection was obscured by the east-
bound train and that the westbound train became visible only
2.9 seconds before the collision. Plaintiff was entitled to the
inference that Union Pacific did not properly blow its horn for
3 seconds before the collision. Reasonable minds could draw
different inferences and conclusions from the evidence as to
the degree of negligence of Union Pacific and the negligence
of Efrain.
It was for the trier of fact to determine whether Efrain’s
negligence when compared to the negligence of Union Pacific
equaled or exceeded that of Union Pacific. Plaintiff was entitled
to all reasonable inferences from the evidence presented. And
since reasonable minds could draw different inferences and
conclusions from this evidence, the issue of the comparative
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negligence of the parties must be submitted to the jury. See
Traphagan v. Mid-America Traffic Marking, supra.
CONCLUSION
Reasonable minds could draw different conclusions and
inferences when comparing the negligence of Efrain and the
negligence of Union Pacific. The district court erred in decid-
ing as a matter of law that Union Pacific was not negligent and
that Efrain was contributorily negligent sufficient to bar his
recovery. For the above reasons, we reverse the judgment and
remand the cause for further proceedings.
R eversed and remanded for
further proceedings.
Miller-Lerman, J., not participating.
Heavican, C.J., dissenting.
I agree that the record, viewed in the light most favorable
to Manuela Domingo Gaspar Gonzalez, demonstrates there is
a genuine issue of material fact as to whether Union Pacific
breached its duty to sound the train horn in accord with its
own policies and applicable federal regulations. Specifically,
there is an issue of fact as to whether Union Pacific sounded
the horn in the proper sequence for the entire 15 seconds
before the train entered the crossing, or whether the horn
sounded only for 12 seconds, with the last 3 seconds’ being
silent. That, however, is the only possible duty Union Pacific
breached on the record before us. In comparison, it is undis-
puted that Efrain, a 13-year-old boy, maneuvered around
a closed railroad crossing gate and entered the path of an
oncoming train that was clearly visible to him for at least 3
seconds. In my opinion, no reasonable fact finder could con-
clude that Efrain’s negligence in completely disregarding the
railroad safety features at the crossing and riding his bicycle
into the path of an oncoming train did not equal or exceed
Union Pacific’s alleged negligence in failing to sound the
horn in the proper sequence for the entire 15 seconds. I there-
fore dissent.
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The majority opinion immediately states that the issue is
whether Efrain was, as a matter of law, contributorily negligent
to such a degree as to bar his recovery. I agree that this is the
ultimate issue, but I disagree with how the majority analyzes
it. A key component of the comparative negligence analysis is
the extent to which each party’s risk-creating conduct failed
to meet the applicable legal standard.1 It is therefore neces-
sary to first analyze the respective allegations of negligence
made by Gonzalez in the complaint in order to determine the
precise risk-creating conduct of Union Pacific that is at issue
here. Once that conduct is determined, it can then be measured
against Efrain’s conduct.
Visual Obstruction
Gonzalez alleged that Union Pacific was negligent in “struc-
turing” the crossing in a manner that allowed trains traveling
through the crossing in opposite directions to create visual
obstructions for travelers. This court has never held that a
railroad violates its standard of care by structuring a crossing
in such a manner. Gonzalez cites to no case or federal regula-
tion, and I have found none, finding that a railroad has a duty
to prevent two trains from passing in opposite directions on
parallel tracks.
Gonzalez relies on Case v. Norfolk & Western Ry. Co.,2
decided by an Ohio appellate court. In Case, a driver crossed
a double train track after one train had passed and while
electric flashers were still operating. The vehicle was then
struck by a train traveling on the other track in the opposite
direction. The court found that summary judgment in favor of
the railroad was improper for a number of reasons, including
that there was a fact question as to whether the oncoming
1
Tadros v. City of Omaha, 269 Neb. 528, 694 N.W.2d 180 (2005).
2
Case v. Norfolk & Western Ry. Co., 59 Ohio App. 3d 11, 570 N.E.2d 1132
(1988).
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train was “visible” just prior to collision.3 Case did not hold,
however, that the railroad had any duty to prevent trains from
passing through a crossing in opposite directions on paral-
lel tracks. Rather, the visibility issue was simply part of the
larger question of whether the railroad breached the standard
of care by failing to place additional safety features or mecha-
nisms, such as a crossing gate, at the crossing.4 That is not
the issue here, as there is no allegation that Union Pacific
failed to place proper safety features at the crossing. And it
is undisputed that all the safety features in place were prop-
erly functioning.
Simply allowing trains to pass in opposite directions on
parallel tracks at a railroad crossing does not violate a rail-
road’s duty to use reasonable care under the circumstances.5
Thus, in my opinion, Union Pacific was entitled to summary
judgment on the claim that it was negligent for structuring
the crossing in such a manner that trains could simultane-
ously cross on parallel tracks. And the majority opinion is
incorrect to the extent it considers any visual obstruction
created by the passing trains to be negligent conduct of
Union Pacific.
Sounding of Train’s Horn
Gonzalez relies heavily, as does the majority, on the alleged
failure of Union Pacific to comply with federal and internal
regulations regarding how and when a train horn should sound
at a crossing. I am somewhat reluctant to analyze this allega-
tion of negligence at all, as it was not specifically raised in
her complaint. The complaint did, however, allege both that
Union Pacific failed to use reasonable care to eliminate the
3
Id. at 13, 570 N.E.2d at 1135.
4
Case, supra note 2.
5
See, generally, A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784
N.W.2d 907 (2010).
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danger caused by the visual obstruction and that “the noise
of one train was loud enough to prevent a pedestrian from
determining whether one train or two was crossing before
him.” Under our liberal notice pleading rules, this likely was
sufficient to raise the issue. The district court clearly agreed,
because it addressed the horn issue in its order. This convinces
me that we should address the issue as well.
I agree that the record shows a genuine issue of material fact
on this issue. Union Pacific’s conductor testified that the horn
was sounding through the intersection. And a Union Pacific
claims representative testified the horn was “blowing at the
appropriate time” as it approached the crossing. But Gonzalez’
expert opined the horn sounded for only 12 seconds prior
to entering the crossing, instead of the 15 seconds required
by federal regulations. Her expert’s affidavit can reasonably
be interpreted to opine that the horn failed to sound in the
3 seconds prior to the accident, but was sounding for the 12
seconds prior to that time. Gonzalez’ expert also testified that
the horn failed to sound in the sequence required by federal
regulations. There is thus a genuine issue of material fact in
the record as to whether Union Pacific breached the standard
of care with respect to the timing and manner in which it blew
the train horn.
Comparative Negligence
But, as the majority implicitly finds, the mere existence of
an issue of material fact as to whether Union Pacific breached
its standard of care with respect to the horn does not automati-
cally bar Union Pacific from an award of summary judgment
in this action. Here, the district court found Efrain was con-
tributorily negligent as a matter of law to such a degree as
to bar his recovery because he maneuvered around the closed
crossing gate and violated his duty to look and listen for
oncoming trains. Even assuming that the horn failed to blow
in the proper sequence and for the final 3 seconds before the
accident, I agree with the district court’s conclusion.
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Contributory negligence is conduct for which the plaintiff
is responsible, amounting to a breach of the duty which the
law imposes upon persons to protect themselves from injury
and which, concurring and cooperating with actionable negli-
gence on the part of the defendant, contributes to the injury.6
A plaintiff is contributorily negligent if (1) she or he fails to
protect herself or himself from injury, (2) her or his conduct
concurs and cooperates with the defendant’s actionable neg-
ligence, and (3) her or his conduct contributes to her or his
injuries as a proximate cause.7
Nebraska’s comparative negligence law, Neb. Rev. Stat.
§§ 25-21,185 to 25-21,185.12 (Reissue 2008), applies to civil
actions in which contributory negligence is a defense.8 To enti-
tle a defendant to judgment under the comparative negligence
statutory scheme, the defendant must prove that any con-
tributory negligence chargeable to the plaintiff is equal to or
greater than the total negligence of all persons against whom
recovery is sought.9 An important factor to be considered in
apportioning fault is the extent to which each person’s risk-
creating conduct failed to meet the applicable legal standard.10
Where reasonable minds may draw different conclusions and
inferences regarding the negligence of the plaintiff and the
negligence of the defendant such that the plaintiff’s negli-
gence could be found to be less than 50 percent of the total
negligence of all persons against whom recovery is sought,
the apportionment of fault must be submitted to the jury. Only
where the evidence and the reasonable inferences therefrom
are such that a reasonable person could reach only one conclu-
sion, that the plaintiff’s negligence equaled or exceeded the
6
Springer v. Bohling, 263 Neb. 802, 643 N.W.2d 386 (2002).
7
Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).
8
Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001).
9
§ 25-21,185.09; Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007),
modified on denial of rehearing 274 Neb. 267, 759 N.W.2d 113.
10
Tadros v. City of Omaha, supra note 1.
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defendant’s, does the apportionment of negligence become a
question of law for the court.11
Here, the extent to which each party’s conduct failed to meet
the applicable legal standard must be evaluated. Union Pacific
failed to meet its standard of care in only one respect—failing
to properly blow the horn in a specific sequence and for the
3 seconds prior to the accident. How, then, did Efrain fail to
meet the applicable legal standard?
A traveler on a highway, when approaching a railroad
crossing, has a duty to look and listen for the approach of
trains, and the failure to do so without a reasonable excuse
constitutes negligence.12 He or she must look whereby look-
ing, he or she could see, and listen whereby listening, he or
she could hear.13 In addition, § 60-6,170 specifically provides
that when a railroad crossing gate is lowered, any person
approaching the crossing in a vehicle must stop within 50
feet but not less than 15 feet from the nearest rail and shall
not proceed until it is safe to do so. Section 60-6,170 also
provides that no person shall drive a vehicle through, around,
or under any crossing gate or barrier while it is closed or
being closed.14
The ordinary rules of the road which are applicable to
motor vehicles that cross at highway intersections have no
application to railroad trains that approach grade crossings.15
11
Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 555 N.W.2d
778 (1996).
12
Dresser v. Union Pacific RR. Co., 282 Neb. 537, 809 N.W.2d 713 (2011).
13
Kloewer v. Burlington Northern, Inc., 512 F.2d 300 (8th Cir. 1975);
Crewdson v. Burlington Northern RR. Co., 234 Neb. 631, 452 N.W.2d 270
(1990); Anderson v. Union Pacific RR. Co., 229 Neb. 321, 426 N.W.2d
518 (1988); Wyatt v. Burlington Northern, Inc., 209 Neb. 212, 306 N.W.2d
902 (1981). See, also, Neb. Rev. Stat. §§ 60-6,170 and 60-6,314 (Reissue
2010).
14
See, also, Neb. Rev. Stat. § 60-6,314 (Reissue 2010) (operator of bicycle
is subject to all duties applicable to drivers of motor vehicles).
15
Wyatt, supra note 13.
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Instead, presumably because it is incredibly difficult to stop
a moving train, there is no duty on the part of an engineer
who is operating a train to yield the right of way until the
situation is such as to indicate to a reasonably prudent person
that to proceed would probably result in a collision.16 The
rules impose such a heightened duty on a traveler crossing
an intersection that we have held that “even if the train fails
to give warning signals of its approach to the crossing, [a
traveler] can not recover if he recklessly fails and neglects
to” look and listen “at the proper time [so that] he could have
seen the approaching train in time to stop before reaching the
crossing.”17 In a similar vein, although in a case involving the
issue of comparative negligence under the prior “more than
slight” standard, we have held:
[W]here it is undisputed that a traveler on a highway
failed to exercise reasonable precautions by looking
and listening at a reasonable point where he could have
seen an approaching train in time to stop before reach-
ing the tracks, his negligence, as a matter of law, will
defeat a recovery for damages resulting from a colli-
sion with a train at a crossing, even though no signal
by the locomotive bell or whistle was given as required
by law.
Failure of [a] locomotive[’s] engineer to ring the bell
or blow the whistle as the train approached the cross-
ing, even though it may have been negligent, would
not make the railroad company liable for damages . . .
in a collision at the crossing, if the driver of the motor
vehicle recklessly failed and neglected to have his motor
vehicle under control and by looking and listening at
the proper time and place could have seen the approach-
ing train in time to stop before reaching the track, but
16
Dresser, supra note 12; Wyatt, supra note 13.
17
Wyatt, supra note 13, 209 Neb. at 216, 306 N.W.2d at 905.
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r­ecklessly failed and neglected to do so, whereby there
was a collision.18
Here, it is undisputed that Efrain maneuvered his bicycle
under the crossing gate as it was either closed or closing.
Had Efrain obeyed this traffic signal, which he had every
reasonable opportunity to do, he easily would have stopped
in a place of safety and avoided the oncoming train. Once he
chose to maneuver around the crossing gate, it is also undis-
puted that the oncoming train was clearly visible to him for
at least 3 seconds; yet, he chose to proceed onto the tracks.
In my opinion, no reasonable fact finder could conclude
that Efrain’s negligence in disregarding the closed crossing
gate and entering into the path of an oncoming train was not
greater than or equal to Union Pacific’s failure to blow the
horn in the proper sequence and for the 3 seconds prior to
the collision.
Gonzalez’ brief and the majority opinion generally seek to
minimize the degree of Efrain’s negligence for two reasons.
First, that his ability to see the oncoming train was partially
obstructed by the passing train. And second, that he was only
13 years old.
The record does show that Efrain’s view of the oncom-
ing train was partially obstructed by the passing train. But,
as noted, this visual obstruction cannot be imputed to Union
Pacific as negligence. At most, then, it can be considered as
a “reasonable excuse” for Efrain’s failure to comply with his
duty to look for oncoming trains.19 But even this is unclear. In
several cases, we have held that when an obstruction prevents
a traveler from seeing an approaching train or a distraction
averts a traveler’s attention, a railroad is not entitled to rely
upon the traveler’s duty to stop (presumably because the trav-
eler has a reasonable excuse for not complying with this duty),
18
Milk House Cheese Corp. v. Chicago, B. & Q. R. R. Co., 161 Neb. 451,
465, 73 N.W.2d 679, 687 (1955).
19
See Dresser, supra note 12, 282 Neb. at 542, 809 N.W.2d at 718.
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and that the question of whether the traveler’s conduct in tra-
versing was reasonable is a matter of fact for the jury.20
But none of our prior cases invoking this rule involved a
“reasonable excuse” that was not negligently created by the
railroad. In Anderson v. Union Pacific RR. Co.,21 a railroad
created a visual obstruction by parking 17 empty railcars just
east of the crossing on one of three sets of tracks. In Crewdson
v. Burlington Northern RR. Co.,22 a railroad created a visual
obstruction by parking a coal train west of the crossing on
the second of four sets of parallel tracks. And in Kulhanek v.
Union Pacific RR.,23 a railroad created a visual obstruction by
parking a bus adjacent to the tracks. In each of those cases,
we considered the traveler’s reduced visibility in analyzing
the extent to which he or she breached the duty to look for
oncoming trains.
But here, as noted, Union Pacific did not negligently cre-
ate the visual obstruction, because it had no duty to prevent
trains traveling on parallel tracks from simply crossing at an
intersection. It thus appears to me that these cases are inap-
plicable to the instant case. But even assuming the visual
obstruction created by the passing trains can be considered in
weighing the degree of Efrain’s negligent conduct, I would
still hold that his negligence was greater than or equal to that
of Union Pacific’s as a matter of law. It is undisputed that
Efrain willfully passed under the crossing gate and was able
to see the oncoming train for at least 3 seconds, and yet still
chose to enter its path. His complete disregard for the cross-
ing gate safety feature imposed by the railroad at the crossing
20
Crewdson v. Burlington Northern RR. Co., supra note 13 (per curiam of
three judges, with two judges concurring); Anderson, supra note 13. See,
also, Kulhanek v. Union Pacific RR., 8 Neb. Ct. App. 564, 598 N.W.2d 67
(1999).
21
Anderson, supra note 13.
22
Crewdson, supra note 13.
23
Kulhanek, supra note 20.
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is significant negligence, and I do not see how any visual
obstruction created by the passing train could constitute a rea-
sonable excuse for ignoring this safety feature. Moreover, it
is undisputed that there was no visual obstruction for at least
3 seconds, and there is nothing in the record to suggest that
had he looked during those 3 seconds, he would not or could
not have seen the approaching train. To the contrary, the only
evidence is that he actually did look and did make eye contact
with the conductor, and nevertheless chose to attempt to cross
the tracks. In these circumstances, any negligence on Union
Pacific’s part in failing to blow the horn to alert Efrain of the
oncoming train is minimal; for had Efrain looked, he would
have seen the train in time to return to a place of safety. And
had he not disregarded the closed crossing gate, he never
would have been in a place of danger at all.
I also do not find it significant that Efrain was only 13
years old. A minor child is required to exercise that degree of
care which a person of that age would naturally and ordinarily
use in the same situation and under the same circumstances.24
In Humphrey v. Burlington Northern RR. Co.,25 we held that
although it is difficult to find a child contributorily negligent
as a matter of law, the contributory negligence of a child is
not always a question of fact resting within the purview of
a jury. Instead, the issue is whether the child had sufficient
knowledge, discretion, and appreciation of the danger that it
can be said as a matter of law that the child was contributorily
negligent and, if so, whether that contributory negligence is
sufficient to bar recovery as a matter of law.26
And we have so found in other cases involving children
similar in age to Efrain and with similar open and obvious
24
Humphrey v. Burlington Northern RR. Co., 251 Neb. 736, 559 N.W.2d 749
(1997).
25
Id.
26
Id.
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dangers. In Suarez v. Omaha P.P. Dist.,27 a 12-year-old boy
was shocked and burned when he climbed a 27-foot tree and
touched a high-voltage wire. The boy possessed average intel-
ligence and testified that he knew he could be shocked if he
touched the wire. We concluded that a 12-year-old should pos-
sess sufficient knowledge that a wire carrying electric current
is capable of causing shock or injury to one contacting it, and
ruled the boy was guilty of contributory negligence to a degree
sufficient to bar him from recovery.
In Garreans v. City of Omaha,28 two 12-year-old boys were
injured when they dropped a lighted firecracker into a 55-
­gallon drum labeled “flammable.” We held the trial court was
clearly wrong when it failed to find them contributorily negli-
gent as a matter of law, reasoning the boys knew what the word
“flammable” meant and knew fireworks were dangerous.
I would reach a similar conclusion in this case. A reason-
able 13-year-old knows train crossings are dangerous and
knows he or she has a duty to stop, look, and listen for oncom-
ing trains. He or she also knows that he or she has a duty not
to go under a closed gate at a railroad crossing and enter the
path of a train that is approaching him or her. Under the facts
of this case, considering the obvious and inherent dangers
present at a railroad crossing, there is no reasonable argument
that Efrain’s age makes any difference in the contributory neg-
ligence analysis.29
27
Suarez v. Omaha P.P. Dist., 218 Neb. 4, 352 N.W.2d 157 (1984).
28
Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309 (1984),
overruled on other grounds, Bronsen v. Dawes County, 272 Neb. 320, 722
N.W.2d 17 (2006).
29
See, generally, Egan v. Erie R. Co., 29 N.J. 243, 148 A.2d 830 (1959)
(7-year-old negligent in attempting to board moving freight train); Olson
v. Payne, 116 Wash. 381, 199 P. 757 (1924) (12-year-old walking beside
railroad track negligent); Kyle v. Boston Elevated Railway, 215 Mass.
260, 102 N.E. 310 (1913) (6-year-old who ran into street into path of
approaching car negligent); Studer v. Southern Pacific Co., 121 Cal. 400,
53 P. 942 (1898) (12-year-old who attempted to cross between railcars of
nonmoving train negligent).
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Union Pacific was entitled to summary judgment if the
evidence and the reasonable inferences therefrom were such
that a reasonable person could reach only one conclusion—
that Efrain’s negligence equaled or exceeded Union Pacific’s.
Union Pacific was negligent, at most, by not sounding the
horn in the proper sequence and for failing to sound it during
the 3 seconds immediately preceding the accident. Efrain, in
contrast, was negligent in failing to look for an approach-
ing train and in maneuvering under the closed crossing gate.
Although his visibility was somewhat impaired by the cross-
ing trains, the record shows that Efrain had approximately
3 seconds in which to view the oncoming westbound train.
In addition, Efrain had at least 12 seconds of audible warn-
ing of the approaching train. Further, nothing in this record
contradicts the conductor’s testimony that Efrain made eye
contact with him, saw the approaching train, and nevertheless
decided to attempt to cross. On the record before us, no rea-
sonable fact finder could find that Efrain’s negligence was not
equal to or greater than Union Pacific’s negligence. Although
this accident was tragic, subjecting Union Pacific to liability
under these circumstances is legally inappropriate, and I there-
fore dissent.
Cassel, J., joins in this dissent.