Saliba v. Union Pacific Railroad ( 1998 )

The opinion of the court was delivered by

Lockett, J.:

Plaintiff filed a personal injury action against a railroad and three railroad employees to recover for injuries received when the vehicle plaintiff was driving collided with a train at a railroad crossing. The district court granted the railroad’s motion for summary judgment, finding that, under the circumstances, the railroad crossing was not unusually dangerous and the railroad owed no duty to take extra precautions to warn plaintiff. Plaintiff appeals, claiming (1) in granting summary judgment the judge erred by concluding as a matter of law that the railroad crossing was not unusually dangerous and that, therefore, the railroad owed no duty to plaintiff, and (2) K.S.A. 66-234 allows a negligence claim against a railroad based upon the physical characteristics of a train and the actions of railroad employees, irrespective of whether the railroad crossing is unusually dangerous.

FACTS:

On the evening of November 20, 1993, Sam Saliba was driving west on Old Highway 40 when he collided with a Union Pacific flatcar at a rural railroad grade crossing west of Solomon, Kansas. Saliba had driven his daughter to a birthday party in Solomon. The train, which was transporting camouflaged military vehicles to Fort Riley, Kansas, consisted of 51 railroad flatcars and 2 locomotives. The railroad tracks crossed Highway 40 at an angle from southeast to northwest. There was no moon. The evening was coal black. The crossing was unlit and signed with crossbucks.

The Union Pacific crew was turning the railroad cars around for unloading at Fort Riley. When the collision occurred, the train was backing into the crossing at a speed of approximately 4 miles per hour. There was reflective material on the side of the flatcar plaintiff hit. The conductor, Ron Sherlak, was working as a flagman with a lantern to assist the engineer in backing the train. Sherlak observed Saliba’s car as it came over a small hill east of Solomon, approximately 2,200 feet east of the crossing. The plaintiff’s petition alleges an issue of material fact as to whether Sherlak was performing duties in a reasonably careful manner.

Saliba was familiar with Old Highway 40 and the railroad crossing, having crossed the tracks two to four times a week during the 4 years prior to the collision. He was aware that the railroad tracks were used and signed with a crossbuck. On the night of the accident, Saliba did not see any vehicles within 100 feet of the railroad tracks or a flagman at the crossing with a lantern. When Saliba observed the train, he applied the brakes. When Saliba’s car collided with the flatcar, Saliba sustained serious injuries.

Saliba filed suit against Union Pacific, the conductor, the engineer, and the flagman for injuries suffered in the collision. Saliba claimed that the crossing was unusually dangerous in that the

“crossing and its surroundings — including the tree line, bushes, weeds and other vegetation on either side of the track — made the spur track crossing unusually dangerous at night time because said trees, bushes, weeds and other vegetation silhouetted and blended in with a train on said tracks, obscuring the presence of a train as it approached said crossing from travelers . . . .”

He alleged the danger was increased since Union Pacific was backing unlighted flatcars carrying camouflaged military equipment and should have been aware that “normal automobile headlights . . . would not reveal the approach of the train’s unlighted flat cars toward the crossing and, in fact, created an illusion of safety.” Saliba claimed that Union Pacific and its employees negligently failed to warn him of the presence of the train.

When discovery was completed, Union Pacific filed a motion for summary judgment, arguing that there was no evidence that the railroad crossing was unusually dangerous. Therefore, Union Pacific claimed it had no duty to provide special warnings to Saliba. In granting Union Pacific’s motion for summary judgment, the district judge stated:

“Summary judgment may be granted when the evidence shows no liability as a matter of law and where the central facts are not in dispute.

“In the case, at hand, the plaintiff, Sam Saliba, seeks judgment against Union Pacific Railroad, et al. as defendants for an accident on November 20, 1993 at 6:45 p.m.

“The central issue, at hand, is: Does the railroad crossing constitute an unusually dangerous crossing so as to cause a duty to exist to provide additional warning?

“This question is a matter of law — not a triable issue.

“The court considers the entire record and the case law, and the court specifically considers Moses v. Missouri Pac. Rld. Co., 138 Kan. 347.

“The crossing was properly marked, painted and with crossbucks.

“The plaintiff was familiar with the crossing.

“The view was unobstructed.

“The crossing was visible, straight, flat, level, and smooth.

"When all is considered the court concludes that as a mater of law the crossing was not unusually dangerous. Where no duty exists, there can be no claim.

“Summary Judgment, in accordance with stated principles, is proper and is so rendered in favor of defendants.”

Saliba appeals.

STANDARD OF REVIEW

Appellate review of a district court’s grant of summary judgment is governed by well-established rules. The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when 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 judgment as a matter of law. A defendant is entitled to summary judgment if the defendant can establish the absence of evidence necessary to support an essential element of the plaintiff’s case. Hammig v. Ford, 246 Kan. 70, 73, 785 P.2d 977 (1990); Crooks v. Greene, 12 Kan. App. 2d 62, 64, 736 P.2d 78 (1987).

When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79 (1990); Slaymaker v. Westgate State Bank, 241 Kan. 525, 531, 739 P.2d 444 (1987). In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.

To have evidentiary value, the particular document or testimony relied upon by the party opposing summary judgment must be probative of that party’s position on a material issue of fact. Slaymaker, 241 Kan. at 530. Probative evidence is that which “furnishes, establishes or contributes toward proof.” Akin v. Estate of Hill, 201 Kan. 306, 311, 440 P.2d 585 (1968). On appeal we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).

DISCUSSION

Initially, we note that to support the district judge’s grant of summary judgment, the defendants’ appellate brief included facts indicating that Saliba had consumed alcohol on the night of the accident and that he had an eye condition which impaired the vision in his left eye. We note that the record also reflects that Saliba’s alcohol consumption amounted to half a glass of a mixed drink and that his blood alcohol level was significantly below the legal limit when measured on the night of the accident. There is also expert testimony that Saliba’s eye condition, which affected one eye, did not impair his ability to see the train. More important, these facts are not relevant to the summary judgment issue but are facts to be considered in comparing Saliba’s negligence, if any.

In Kansas, a railroad is not considered an insurer of the safety of motorists approaching its tracks. Waits v. St. Louis-San Francisco Rly. Co., 216 Kan. 160, 168, 531 P.2d 22 (1975). A railroad company need not anticipate that a motorist will be negligent. If the conditions and circumstances are such that a motorist exercising due care in the operation of a properly equipped motor vehicle will see the train occupying a crossing in time to avoid an accident, the. railroad may assume that the operator will do so, and it is not required to take precautions to avoid such a collision. The railroad has a right to make a reasonable use of a crossing, and ordinarily the presence of a train on the crossing is in itself an adequate warning to a driver of a vehicle on a highway. Special safeguards need not be employed in the absence of unusual surroundings, conditions, and circumstances. 216 Kan. at 168.

Although railroads are not insurers of the safety of persons approaching their tracks for the purpose of crossing, they must exercise due care for the safety of travelers at public crossings. Unusually dangerous conditions prevailing at the crossing may require railroads to anticipate that the mere presence of the train occupying the crossing will not adequately warn users of a street, road, or highway that crosses the tracks. Such special conditions may create an unusual hazard, making additional warnings necessary. Grisamore, Administratrix v. Atchison, T. & S. F. Rly. Co., 195 Kan. 16, 20, 403 P.2d 93 (1965).

Where a crossing is unusually dangerous, such reasonable care must be exercised by the railroad as common prudence dictates. Under these circumstances, where a train occupies a crossing, the railroad is under a duty to use reasonable means to warn and avoid injury to the traveling public. The character of the means will depend on the particular conditions and circumstances surrounding the crossing. A railroad may be liable for injuries received by a motorist colliding with a railroad car on a crossing where normal motor vehicle headlights do not reveal the obstruction or where a trap is created by an illusion of safety revealed by the headlights. Grisamore, 195 Kan. at 20-21.

Whether a railroad crossing is more than ordinarily dangerous is generally a question of fact, although the sufficiency of the evidence to establish that fact remains a question of law. Jennings v. Missouri Pacific Railroad Co., 211 Kan. 389, 394, 506 P.2d 1125 (1973); Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, 107-08, 495 P.2d 930 (1972).

The district judge granted summary judgment on the sole ground that the crossing was not unusually dangerous and the defendant owed no duty to warn Saliba. In granting summary judgment, the district judge placed particular reliance on Moses v. Missouri Pac. Rld. Co., 138 Kan. 347, 26 P.2d 259 (1933). In Moses, the plaintiff brought an action to recover damages from the Missouri Pacific Railroad Company for injuries sustained in a collision with a railroad car. The accident occurred at night when the railroad was backing a string of cars into the crossing. Moses alleged that he was traveling at 25 miles per hour, slowed down to 10 miles per hour before the crossing, stopped, looked, and listened for trains and, not seeing or hearing one, drove, onto the crossing. About 10 feet from the track, Moses observed a string of cars backing down the track without a light on the end of the string. He claimed that without sounding a whistle or giving any warning, the railroad recklessly backed the cars over the crossing and he, therefore, had no opportunity to avoid a collision. After a trial, the jury found in favor of the plaintiff.

On appeal, the railroad argued in part that the trial court erred in failing to grant a directed verdict. The Moses court disagreed, finding the evidence of the railroad’s negligence was sufficient to go to the jury. The court noted:

“The testimony of plaintiff was that when he approached the track he both looked and listened for trains and cars, and that he neither saw nor heard any until he came within about ten feet of the track. ... If the brakeman had been posted on the end of the advancing string of cars with a swinging lantern, it would have constituted some warning to the plaintiff.” 138 Kan. at 349.

The court then held:

“The backing of a string of freight cars in the nighttime across a highway, without a light on the advancing cars or the giving of any signal or warning to those using the crossing, is negligence and created a liability against the railroad company for damages as to a traveler who is struck and injured by the cars while he is going over the crossing . . . .” 138 Kan. 347, Syl. ¶ 1.

It is difficult to see how Moses supports the district court’s ruling here. First, Moses did not address whether the crossing was unusually dangerous and, second, Moses, in fact, provides support for plaintiff’s argument that the district judge improperly granted summary judgment.

Saliba asserts that summary judgment is precluded because there are genuine issues of material fact as to the unusually dangerous nature of the crossing. Saliba also asserts that the trial court erred in considering only the general characteristics of the railroad crossing and not the particular circumstances of the crossing on the night of the accident.

Saliba correctly points out that in granting summary judgment, the district court relied upon only four general characteristics of the railroad crossing in ruling that there was not substantial evidence to support a finding that the crossing was unusually dangerous: (1) The crossing was properly marked and painted with cross-bucks; (2) the plaintiff was familiar with the crossing; (3) the view was unobstructed; and (4) the crossing was visible, straight, flat, level, and smooth. A characteristic not considered by the district court was the illumination at the crossing on the night in question.

Union Pacific argues that Kansas cases have held that darkness does not impose a greater duty on railroads at a railway crossing. Defendant’s argument ignores the Kansas cases which have considered artificial and natural illumination, on the particular night in question, as a factor in determining whether the crossing was unusually dangerous. See, e.g., Waits, 216 Kan. 160; Bledsoe v. M.-K-T. Rld. Co., 149 Kan. 741, 90 P.2d 9 (1939).

We note that in defending the motion for summary judgment, plaintiff relied principally upon the deposition testimony of James Loumiet, an expert in train accident reconstruction. Loumiet testified that the crossing was unusually dangerous on the night of the accident and stated:

“Looking in terms of the way the train was being operated in this case, the lack of a locomotive headlight, the lack of any audible warning, the fact that it was dark, that there was no artificial illumination near the crossing of any significant degree, an angle crossing, and I believe that those would be the primary factors that would make up circumstances under which this train was being operated at night would make this an unusually dangerous crossing.”

Loumiet also testified that special circumstances establishing the dangerousness of the crossing were its design, especially lack of illumination, and the way the crossing was used by this particular train, i.e., that flatcars were carrying inconspicuous camouflaged military vehicles in a dark, rural crossing at night, which could create problems for a driver. Loumiet also stated that the angle of the crossing could have affected plaintiff’s ability to perceive the reflective tape located on the side of the train.

Loumiet opined further that, at the time of the accident, the unusually dangerous crossing necessitated the proper use of a flagman, that proper flagging would be for a flagman “[t]o be in a conspicuous position on the roadway using a lantern, waving the lantern back and forth in a wig-wag fashion,” and that the flagger continues flagging until the train has occupied the crossing. The district court’s grant of summary judgment disregarded Loumiet’s testimony. To be fair, we note that the railroad’s expert witness’ opinion contradicted plaintiff’s expert.

In claiming that there is no genuine issue of fact remaining and that summary judgment was proper, the dissent misconstrues the distinction between establishing whether the crossing was unusually dangerous and causation of the accident by stating that darkness at a railroad crossing does not impose a greater duty upon the railroad. The dissent’s citation of Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593 (1929), Sheets v. Baldwin, 146 Kan. 596, 73 P.2d 37 (1937), and Eason v. Missouri Pacific Rld. Co., 191 Kan. 39, 379 P.2d 351 (1963), are not helpful because in those cases there are no allegations that the crossings were unusually dangerous at the time the accident occurred. Those cases analyze whether darkness caused the accident.

We agree that darkness, in and of itself, is not sufficient evidence to establish that a railroad crossing was unusually dangerous. The cases cited by the majority note that darkness is a factor to be considered, along with all the surrounding conditions and circumstances at the time of the collision, in determining whether there is sufficient evidence that the crossing is unusually dangerous.

To support its claim that summary judgment was proper, the dissent confuses the distinction between factors tending to establish the unusually dangerous nature of the crossing and factors tending to establish causation of the accident by selecting certain statements of plaintiff’s expert, Loumiet, which supported the defendant’s argument that the crossing was not unusually dangerous. The dissent fails to point out that Loumiet was careful to draw a distinction between factors tending to establish the unusually dangerous nature of the crossing and factors tending to establish causation of the accident in his testimony. When asked what about the design of the train caused it to be unusually dangerous, Loumiet stated:

“Well, again, you have to look at all these things combined together, a lack of active warning devices, the lack of illumination at the crossing coupled with the fact that you have a backing train where there is no audible warning device, there is no locomotive headlight, and it’s very dark at that time, so those factors go into making — plus the fact that you have a train that has very, very poor conspicuity [sic] all go into making this an extraordinarily hazardous crossing.”

When asked what about the angle of the tracks for purposes of this accident made it dangerous or unusually dangerous, Loumiet stated:

“The angle, again, is one thing among several, but the fact — the effect that an angle has is, number one, because you’re not crossing the tracks in a perpendicular fashion, but rather at a skewed angle, it does take a little longer to go across tracks and, therefore, increases the driver’s exposure on the tracks. Also depending on which direction the traveler is approaching and which direction the train is approaching, the driver may have to look over their shoulder to see an oncoming train and also again, as previously mentioned, the angle of the approachingvehicle relative to the train could have an effect on the effectiveness of any reflective materials on the sides of the car, on the angle of the railroad car.”

Loumiet went on to say that with regard to the angle leaving the car on the crossing longer because you are going to have more exposure time, while not causing the accident in a direct sense, has something to do with the overall safety of the crossing. According to Loumiet, there is the circumstance of the accident on the one hand and the overall issue of the safety of the crossing on the other hand.

In other words, while Loumiet testified that the angle of the crossing did not cause the accident, he testified that it contributed to making the crossing unusually dangerous. This, along with the other factors cited by Loumiet, is sufficient evidence to allow the question of the unusually dangerous nature of the crossing to go to the jury.

In considering the motion for summary judgment, the trial court and this court are required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the plaintiff. Given Loumiet’s testimony, there is a genuine question of fact as to whether, under the circumstances, the crossing was unusually dangerous. Summary judgment was improperly granted. Because we reverse the district court’s grant of summary judgment, we do not reach the other issue raised by plaintiff.

Reversed and remanded for further proceedings.