Union Pacific R.R. Co. v. Sharp
Annotate this Case
UNION PACIFIC RAILROAD COMPANY and T.P. Spoon
v. Jonathan SHARP and Aristea Sharp
96-1096 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered October 9, 1997
1. Motions -- directed verdict -- standard of review. -- The
standard of review of the denial of a motion for a directed
verdict is whether the jury's verdict is supported by
substantial evidence; substantial evidence is defined as
evidence of sufficient force and character to compel a
conclusion one way or the other with reasonable certainty; it
must force the mind to pass beyond suspicion or conjecture;
when determining the sufficiency of the evidence, the supreme
court reviews the evidence and all reasonable inferences
arising therefrom in the light most favorable to the party on
whose behalf judgment was entered; the weight and value of
testimony is a matter within the exclusive province of the
jury.
2. Negligence -- prima facie case -- how established. -- To
establish a prima facie case of negligence, a plaintiff must
show that damages were sustained, that the defendant breached
the standard of care, and that the defendant's actions were
the proximate cause of the damages.
3. Negligence -- railroad breached standard of care -- failed to
maintain proper lookout. -- Appellee's theory of negligence
that the railroad failed to maintain a proper lookout under
Ark. Code Ann. 23-12-907(a)(1) (1987) was supported by
substantial evidence where the train's engineer testified that
he could not see appellee's van, and that he did not know that
the train had struck the van until the brakeman brought it to
his attention; from this testimony a jury could have concluded
that the railroad breached the standard of care by failing to
keep a proper lookout for vehicles entering the crossing.
4. Negligence -- proximate cause -- definition of. -- Proximate
cause is that which in a natural and continuous sequence,
unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred;
proximate causation is usually an issue for the jury to
decide, and when there is evidence to establish a causal
connection between the negligence of the defendant and the
damage, it is proper for the case to go to the jury; proximate
causation becomes a question of law only if reasonable minds
could not differ.
5. Witnesses -- experts -- jury not bound to accept opinion
testimony as conclusive. -- The jury is not bound to accept
the opinion testimony of experts as conclusive.
6. Negligence -- appellee's damages and railroad's actions --
substantial evidence of causal connection presented. -- Where
appellee presented evidence that the railroad might have been
negligent in failing to keep a proper lookout, the jury could
have concluded that if the railroad had kept a proper lookout,
it could have either stopped prior to colliding with
appellee's van or sounded earlier warnings to notify him of
the impending danger; appellee presented substantial evidence
of a causal connection between his damages and the railroad's
actions.
7. Negligence -- substantial evidence presented that railroad
breached standard of care -- breach was proximate cause of
appellee's injuries -- case properly submitted to jury. --
Where appellee presented substantial evidence that the
railroad breached its standard of care, and that this breach
was the proximate cause of his injuries, the supreme court
affirmed the trial court's decision to submit the case to the
jury for resolution.
8. Jury -- instructions -- Sudden Emergency instruction applied
in pre-Wiles cases -- this such a case. -- Although Wiles v.
Webb, 329 Ark. 108, 946 S.W.2d 685 (1997), abolished the use
of the Sudden Emergency instruction in all future cases, it
remained applicable to cases, such as this one, that were
tried before the Wiles decision was handed down on June 16,
1997; in "pre-Wiles" cases, the old rule that the Sudden
Emergency instruction may not be given where there is any
evidence that the party requesting the instruction was
negligent in creating the emergency situation is applicable.
9. Appeal & error -- giving or failing to give instruction --
party must object thereto at time instruction given. -- No
party may assign as error the giving or failure to give an
instruction unless he objects thereto before or at the time
the instruction is given, stating distinctly the matter to
which he objects and the grounds of his objection.
10. Appeal & error -- giving of instruction -- appellant's
objection timely -- grounds for objection stated -- issue
properly preserved for review. -- Where the appellant
railroad's initial objection to the giving of the Sudden
Emergency instruction was a verbatim recitation of the notes
commenting on AMI 614, the railroad enumerated evidence of
appellee's negligence, thereby apprising the trial court that
the instruction should not be given because there was evidence
that the appellee was negligent in creating the emergency
situation, and only after considering the railroad's
references to evidence of appellee's negligence did the trial
court overrule the objection, the issue was properly preserved
for appeal.
11. Jury -- Sudden Emergency instruction -- some evidence of
negligence existed -- instruction should not have been given -
- trial court reversed. -- The Sudden Emergency instruction
should not have been given under the "pre-Wiles" rule because
there was some evidence from which a jury could have concluded
that appellee was negligent in creating the emergency
situation; the trial court erred when it gave the Sudden
Emergency instruction; trial court's ruling was reversed.
12. Appeal & error -- closing argument -- appellant failed to ask
for affirmative relief -- issue not preserved for appeal. --
Where appellant objected during appellee's closing argument
that appellee's counsel had mistated the law, but did not ask
the court for a limiting instruction or to instruct the jury
on the federal definition of locomotives or the method by
which the train must sound its whistle, the issue was not
preserved for review; in order to preserve this issue for
appeal, the attorney must ask for and be denied affirmative
relief such as a mistrial or a limiting instruction.
13. Railroads -- Highway Safety Act -- negligence claims --
participation required to trigger federal preemption. --
Negligence actions are preempted by the Highway Safety Act
because 23 C.F.R. 646.214(b)(3) and (4) remove the
railroad's decision-making authority to determine what type of
warning devices are needed at a particular crossing; by
providing funds the federal government has implicitly approved
the states' improvement plans and their determinations of
whether a particular crossing requires automatic gates and
lights under 23 C.F.R. 646.214(b)(3); the fact that federal
funds participated in the installation of the warning devices
legally presupposed that the Secretary approved and authorized
the expenditure, which in turn legally presupposed that the
Secretary determined that the safety devices installed were
adequate to their task; once warning devices paid for with
federal funds are installed and operating, the railroad's
common-law duty of care ceases, and it is entitled to the
benefit of federal preemption.
14. Railroads -- appellee's claim preempted by federal law --
summary judgment affirmed. -- There was no error in the trial
court's finding that federal funding of improvements at the
crossing pursuant to the Highway Safety Act preempted
appellee's claim that the railroad was negligent in failing to
install adequate warning devices; by providing federal funds,
FHWA implicitly determined that the Arkansas State Highway
Commission's plan for the installation of crossbucks at the
street crossing was adequate to its task pursuant to 23 C.F.R.
109(e), 630.114(b), and 646.214(b); the trial court's
ruling that appellee's claim that the railroad failed to place
adequate warning devices at the crossing was preempted by
federal law was affirmed.
15. Railroads -- Highway Safety Act -- claims that railroad
negligent in failing to maintain warning devices at crossing
not preempted. -- The Highway Safety Act does not preempt
claims that a railroad was negligent in failing to maintain
warning devices at a crossing; 23 C.F.R. 646.214(b) deals
with the design and installation of new warning devices, not
the maintenance of those devices; thus, while the Highway
Safety Act preempts a claim that the railroad failed to
install adequate warning devices, it does not preempt a claim
that the railroad was negligent in failing to maintain the
warning devices implicitly approved by the FHWA.
16. Motions -- directed-verdict motion properly granted --
appellee failed to present proof on railroad's negligence. --
The trial court properly granted the railroad a directed
verdict on appellee's claim that the railroad was negligent in
failing to maintain the crossbucks at the street crossing
where appellee failed to present any proof that the railroad
was negligent in this respect; the trial court's ruling was
affirmed.
Appeal from Lee Circuit Court; Harvey L. Yates, Judge;
reversed and remanded on direct appeal; affirmed on cross appeal.
William H. Sutton, Frederick S. Ursery , Scott H. Tucker, &
Clifford W. Plunkett, for appellants.
Epley, Epley & France, Ltd., by: Lewis E. Epley, Jr. and Tim
S. Parker, for appellees.
Arkansas Trial Lawyers Association, by: Henry C. Kinslow,
amicus curiae.
Barrett & Deacon, by: J.C. Deacon and D.P. Marshall, Jr.,
amicus curiae, for Association of American Railroads, on cross-
appeal.
Annabelle Clinton Imber, Justice.
This is a negligence action involving a collision at a
railroad crossing in Marianna. The appellants, Union Pacific
Railroad Company and T.P. Spoon ("the railroad"), appeal a jury
verdict rendered against them. The appellees, Jonathan and
Aristea Sharp ("Sharp"), cross-appeal the trial court's entry of
partial summary judgment in favor of the railroad on the issue of
whether the railroad placed adequate warning devices at the
crossing. We reverse the jury verdict, and affirm the partial
summary judgment.
On February 15, 1993, Jonathan Sharp was driving a van owned
by his mother, Aristea Sharp, when he collided with a Union
Pacific train at the Louisiana Street railroad crossing in
Marianna. The accident occurred in the afternoon, and the
streets were wet from an earlier rain. Union Pacific's train was
being pulled by two locomotives. The lead locomotive was
operated by engineer T.P. Spoon who was on the right side of the
train and brakeman Steve Tyler who was on the left side of the
train where the impact occurred. The second locomotive was
unoccupied. The only warning device at the railroad crossing was
a single crossbuck which was installed in the early 1980's
pursuant to a safety program funded by the federal government.
Sharp filed a negligence action against the railroad
alleging that it failed to place adequate warning devices at the
crossing, failed to maintain the warning devices, failed to
properly sound audible warnings, and failed to keep a proper
lookout for vehicles entering the crossing. Prior to trial,
the court granted the railroad partial summary judgment on the
issue of whether it placed adequate warning devices at the
crossing because it found that the claim was preempted by federal
law. The case proceeded to trial on Sharp's remaining negligence
theories.
At trial, Sharp admitted that he was aware of the railroad
crossing because he had passed over it four or five times the day
of the accident. Sharp, however, claimed that he did not know
that a train was entering the crossing at the time of the
accident because his view was obstructed, and the train failed to
sound its audible warning devices. Sharp further explained that
he applied his brakes when he saw the train approximately sixty-
two feet from the crossing, but that he was unable to stop before
the front end of his van collided with the left side of the
train. In contrast, the train operators testified that they
sounded the whistle in a series of two long, one short, and one
long blasts, and that they were unable to see Sharp's vehicle
prior to impact.
Direct Appeal
I. Sufficiency of the Evidence
For its first argument on appeal, the railroad asserts that
the trial court erred when it denied its motion for a directed
verdict on Sharp's negligence claim. Our standard of review of
the denial of a motion for a directed verdict is whether the
jury's verdict is supported by substantial evidence. Ouachita
Wilderness Institute, Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997); Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647
(1997). Substantial evidence is defined as "evidence of
sufficient force and character to compel a conclusion one way or
the other with reasonable certainty; it must force the mind to
pass beyond suspicion or conjecture." Esry v. Carden, 328 Ark.
153, 942 S.W.2d 846 (1997). When determining the sufficiency of
the evidence, we review the evidence and all reasonable
inferences arising therefrom in the light most favorable to the
party on whose behalf judgment was entered. Id. In such
situations, the weight and value of testimony is a matter within
the exclusive province of the jury. Id.
To establish a prima facie case of negligence, a plaintiff
must show that damages were sustained, that the defendant
breached the standard of care, and that the defendant's actions
were the proximate cause of the damages. See Ouachita
Wilderness, supra; Southern Farm Bureau Casualty Ins. v. Allen,
326 Ark. 1023, 934 S.W.2d 527 (1996). The parties do not contest
that Sharp suffered damages as a result of the collision. Hence,
the relevant inquiry on appeal is whether Sharp presented
substantial evidence that the railroad breached the standard of
care, and that this breach was the proximate cause of his
damages.
A. Breach of the Standard of Care
At trial, Sharp argued that the railroad was negligent in
failing to keep a proper lookout and failing to properly sound
its audible warnings. Because the jury rendered a general
verdict of negligence, it is impossible to determine whether the
jury found that the railroad was negligent in one or both
respects. Hence, we must affirm if there is sufficient evidence
to support either theory of negligence.
Sharp's first theory of negligence was that the railroad
failed to maintain a proper lookout under Ark. Code Ann. 23-12-
907(a)(1) (1987) which states that:
It shall be the duty of all persons running trains in
this state upon any railroad to keep a constant lookout
for all persons, including licensees and trespassers,
and property upon the track of any and all railroads.
During Sharp's case-in-chief, the train's engineer, T.P. Spoon,
testified that he could not see Sharp's van, and that he did not
know that the train had struck the van until the brakeman brought
it to his attention. We find that from this testimony, a jury
could have concluded that the railroad breached the standard of
care by failing to keep a proper lookout for vehicles entering
the Louisiana Street crossing. Because we find that Sharp
presented substantial evidence that the railroad was negligent in
failing to maintain a proper lookout, it is unnecessary to
address whether he presented substantial evidence that the
railroad was also negligent in failing to properly sound its
audible warnings.
B. Proximate Causation
The railroad next argues that the trial court should have
granted a directed verdict because there was insubstantial
evidence that the railroad's negligence was the proximate cause
of Sharp's injuries. We have previously defined proximate cause
as "that which in a natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without
which the result would not have occurred." Ouachita, supra;
Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). Proximate
causation is usually an issue for the jury to decide, and when
there is evidence to establish a causal connection between the
negligence of the defendant and the damage, it is proper for the
case to go to the jury. Ouachita, supra; Tyson Foods Inc. v.
Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); McGraw v. Weeks, 326
Ark. 285, 930 S.W.2d 365 (1996). In other words, proximate
causation becomes a question of law only if reasonable minds
could not differ. Ouachita, supra; Tyson, supra.
As mentioned previously, Sharp presented evidence that the
railroad might have been negligent in failing to keep a proper
lookout. The jury could have concluded that if the railroad had
kept a proper lookout, it could have either stopped prior to
colliding with Sharp's van or sounded earlier warnings to notify
Sharp of the impending danger. The railroad argues that Archie
Burnham's testimony unequivocally established that the train
could not have stopped when it was first able to see Sharp's
vehicle. We, however, have previously explained that the jury is
not bound to accept the opinion testimony of experts as
conclusive. Dixon Ticonderoga Co. v. Winburn Title Mfg. Co., 324
Ark. 266, 920 S.W.2d 829 (1996); Burns v. State, 323 Ark. 206,
913 S.W.2d 789 (1996); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1996), cert. denied, 116 S. Ct. 1861 (1996). Hence, we find
that Sharp presented substantial evidence of a causal connection
between his damages and the railroad's actions.
In reaching this conclusion, we are not unmindful of our
prior decisions where we held that it was improper to give the
lookout instruction where the evidence established that the train
could not have stopped in time to avoid the collision. Northland
Ins. Co. v. Union Pacific R.R., 309 Ark. 287, 830 S.W.2d 850
(1992); St. Louis Southwestern Ry. v. Evans, 254 Ark. 762, 497 S.W.2d 692 (1973). These cases, however, are distinguishable
from the case at hand in that the appellants in both Northland
and Evans contested the court's decision to give a jury
instruction on one particular theory of negligence. Northland,
supra; Evans, supra. Although the railroad also objected to the
lookout instruction in this case, it has failed to contest this
ruling on appeal. Instead, the railroad has merely asked us to
determine whether there was substantial evidence to support the
jury's general verdict of negligence which, as previously
mentioned, could have been based upon the jury's finding that the
train was negligent in failing to sound audible warnings, in
failing to keep a proper lookout, or both. In other words, we
are asked only to determine if there was any showing of proximate
cause, and not whether the plaintiff established proximate cause
of a particular theory of negligence.
For these reasons, we find that Sharp presented substantial
evidence that the railroad breached its standard of care, and
that this breach was the proximate cause of Sharp's injuries.
Accordingly, we affirm the trial court's decision to submit the
case to the jury for resolution.
II. The Sudden Emergency Instruction
For its next argument on appeal, the railroad asserts that
the trial court erred when it gave the Sudden Emergency
instruction which states:
A person who is suddenly and unexpectedly confronted
with danger to himself or others not caused by his own
negligence is not required to use the same judgment that is
required of him in calmer and more deliberate moments. He is
required to use only the care that a reasonably careful
person would use in the same situation.
AMI Civ. 3rd 614.
In Wiles v. Webb, 329 Ark. 108, 946 S.W.2d 685 (1997), we
recently abolished the use of the Sudden Emergency instruction in
all future cases because we found that the instruction was
inherently confusing. The Wiles holding applies prospectively
only, and thus is inapplicable to cases, such as this one, that
were tried before the Wiles decision was handed down on June 16,
1997. In these "pre-Wiles" cases, we will apply the old rule
that the Sudden Emergency instruction may not be given where
there is any evidence that the party requesting the instruction
was negligent in creating the emergency situation. Thomson v.
Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995); Druckenmiller
v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994).
Sharp claims that this issue is not preserved for appeal
because the railroad failed to make a proper objection to the
instruction. It is well settled that no party may assign as
error the giving or failure to give an instruction unless he
objects thereto before or at the time the instruction is given,
stating distinctly the matter to which he objects and the grounds
of his objection. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561
(1997); Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996). We
find that the railroad complied with these requirements when it
objected as follows:
SHARP: I have a 614 instruction on sudden emergency.
It does appear that that was what occurred out there.
RAILROAD: Judge, the notes on 614 say one has to be
free from negligence to be entitled to this
instruction.
COURT: Just thinking on this -- I don't know how the
Judge can be put in the position of making that
decision because that is a question of fact for the
jury.
RAILROAD: Well the law as we will get to, and I think
its 1804 is: A railroad grade crossing is a place of
danger. And the witness himself testified that he knew
there was a railroad crossing ahead, and he saw it when
he turned the corner and also he had been across it
four of five times that same day. He wasn't suddenly
and unexpectedly confronted with the danger of a
railroad crossing.
The railroad's initial objection was a verbatim recitation
of the notes commenting on AMI 614. See Williams v. Carr, 263
Ark. 326, 565 S.W.2d 400 (1978). After the trial court expressed
its understanding that only the jury can decide whether Sharp was
free from negligence, the railroad enumerated evidence of Sharp's
negligence, thereby apprising the trial court that the
instruction should not be given because there was evidence that
Sharp was negligent in creating the emergency situation. Only
after considering the railroad's references to evidence of
Sharp's negligence did the trial court overrule the objection.
Hence, we find that the issue is properly preserved for appeal.
As to the merits, we agree with the railroad that the
instruction should not have been given under the "pre-Wiles" rule
because there was some evidence from which a jury could have
concluded that Sharp was negligent in creating the emergency
situation. For example, Sharp testified that he was aware of the
crossing because he had passed over it several times that day.
Additionally, Sharp admitted that he saw the train as it turned
the corner to the intersection. Sharp also did not have a valid
driver's license at the time of the accident. Finally, there was
some evidence that Sharp may have been driving too fast for the
wet road conditions.
Because there was some evidence that Sharp was negligent in
causing the impending collision, we conclude that the trial court
erred when it gave the Sudden Emergency instruction.
Accordingly, we reverse the trial court's ruling on this issue.
III. Closing Arguments
At the close of all evidence, the railroad moved for a
directed verdict on the issue of whether it failed to sound
audible warnings in a manner required by law. This is merely
another theory of how the railroad was negligent in causing the
collision. As we have previously ruled, there was sufficient
evidence to support the jury's general verdict of negligence, and
thus it is unnecessary for us to determine whether there was
sufficient evidence of this particular theory of negligence. The
railroad, however, raised this issue again during Sharp's closing
argument.
At the conclusion of all evidence, the judge gave the jury
the following instruction which is based upon Ark. Code Ann.
23-12-410 (1987):
A railroad is required to place on each locomotive
a bell or whistle, and these shall be rung or whistled
at a distance of at least a quarter mile from where the
tracks cross any public street and shall be kept
ringing or whistling unit the locomotive has crossed
the street.
AMI Civ. 3d 1801. The judge also gave AMI Civ. 3d 101 which
informs the jury that opening statements, closing arguments, and
statements made by the attorneys during the trial are not
evidence.
During his closing argument, Sharp began to read AMI Civ. 3d
1801 when the railroad objected stating that the statute does not
say that each locomotive has to sound the warnings. At that
point, Sharp had done nothing more than read the jury
instruction, and thus we cannot say that he mischaracterized the
law in any way. Sharp resumed his closing argument by reading
the instruction again and then stating:
It doesn't say they can pause one to three seconds in
their whistling sequence. It says they shall be kept
ringing and whistling. Mr. Spoon himself testified
that he paused. Mr. Sain testified that there was
pause in the blowing sequence. Mrs. Sain testified that
there was pause in this blowing sequence. They were
breaking the law coming down this track blowing that
whistle like that. Mr. Spoon also testified that there
were two engines on that train. He testified that only
one had horns, whistles and bells working. They had
one -- at least one of the locomotives was out there
without the proper equipment. They were breaking the
law when they did that.
The railroad objected stating that Sharp had mischaracterized the
law because the standard practice in the industry is to blow the
whistle in a series of blasts, and that under federal law two
engines together are defined as one locomotive. The railroad,
however, did not ask for a mistrial or for a limiting
instruction.
In Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996), we
held that in order to preserve this issue for appeal, the
attorney must ask for and be denied affirmative relief such as a
mistrial or a limiting instruction. (citing Littlepage v. State,
314 Ark. 361, 863 S.W.2d 276 (1993)). In this case, the railroad
did neither, nor did it ask the court to instruct the jury on the
federal definition of locomotives or the method by which the
train must sound its whistle. Hence, we find that the issue is
not properly preserved for appeal.
For these reasons, we reverse and remand on the railroad's
direct appeal.
Cross-Appeal
A. Failure to Place Adequate Warning Devices
On cross-appeal, Sharp argues that the trial court erred
when it found that Sharp's claim that the railroad failed to
place adequate warnings at the crossing was preempted by federal
law. We find no error in the trial court's ruling, and
accordingly we affirm the entry of summary judgment on this
issue.
In 1970, Congress passed the Federal Railroad Safety Act
which directed the Secretary of Transportation to study and
develop solutions to safety problems created by railroad
crossings. 45 U.S.C. 421 to 447. Based on the Secretary's
report and suggestions, Congress passed the Highway Safety Act of
1973. 23 U.S.C. 130. This Act made federal funds available to
states to improve railroad crossings, in return for which the
states were required to:
conduct and systematically maintain a survey of all
highways to identify those railroad crossings which may
require separation, relocation, or protective devices,
and establish and implement a schedule of projects for
this purpose.
23 U.S.C. 130(d). In 1975, the Federal Highway Administration
(FHWA) promulgated regulations that determined the states's
eligibility for the federal funds provided by the Highway Safety
Act. Of particular importance to this case, is 23 C.F.R.
646.214(b)(3) which states that automatic gates with flashing
signals must be installed if one or more of certain listed
conditions exist. The regulation also provides that:
For crossings where the requirements of 646.214(b)(3)
are not applicable, the type of warning device to be
installed, whether the determination is made by a State
regulatory agency, State highway agency, and/or the
railroad, is subject to the approval of the FHWA.
23 C.F.R. 646.214(b)(4).
Pursuant to the Highway Safety Act, the Arkansas State
Highway and Transportation Department and Union Pacific's
predecessor became involved in a state-wide project to upgrade
railroad crossings throughout the state. The state plan included
a determination that two crossbucks should be placed at all
railroad crossings in the state, including the Louisiana Street
crossing in Marianna. On January 4, 1980, the FHWA approved the
state plan and subsequently entered into a contract to pay for
90% of the improvements. On March 3, 1981, the FHWA inspected
and approved the completed improvements, and made final payment
to the state on March 22, 1988.
The issue presented by this cross-appeal is whether federal
funding of the improvements at the Louisiana crossing pursuant to
the Highway Safety Act preempted Sharp's claim that the railroad
was negligent in failing to install adequate warning devices. It
is uncontested that according to 23 C.F.R. 646.214(b) automatic
gates and flashing lights are required only if one or more of the
conditions listed in (b)(3) exist at a particular crossing. The
ultimate issue in this case is what kind of federal participation
triggers federal preemption under the Highway Safety Act.
Sharp argues that preemption occurs only when a diagnostic
team has determined whether the (b)(3) conditions exist at a
particular crossing. Because a diagnostic team did not evaluate
the Louisiana Street crossing, Sharp contends that the federal
government has not made a final determination in this respect,
and thus it is proper to submit the issue to a jury for
resolution.
In contrast, the railroad asserts that, by providing federal
funds, FHWA determined that the State Highway Department's plan
for the installation of crossbucks at the Louisiana Street
crossing was adequate. Hence, the railroad argues that once
federal funds have been spent to upgrade a railroad crossing,
negligence claims such as Sharp's are preempted. We agree with
the railroad's position, and accordingly we affirm the trial
court's ruling.
The United State Supreme Court first addressed the
preemptive effect of the Highway Safety Act and its regulations
in CSX Transportation Inc. v. Easterwood, 507 U.S. 658 (1993).
In Easterwood, the plaintiff claimed that the railroad was
negligent in failing to place adequate warning devices at a
railroad crossing where her husband was killed. Id. As in this
case, the railroad argued that the claim was preempted by the
federal act and supporting regulations. Id. The Supreme Court
explained that negligence actions are preempted by the act
because 23 C.F.R. 646.214(b)(3) and (4) remove the railroad's
decision-making authority to determine what type of warning
devices are needed at a particular crossing. Id. The Court
concluded that:
for projects in which federal funds participate in the
installation of warning devices, the Secretary has
determined the devices to be installed and the means by
which railroads are to participate in their selection.
The Secretary's regulations therefore cover the subject
matter of state law which, like the tort law on which
respondent relies, seeks to impose an independent duty
on a railroad to identify and/or repair dangerous
crossings.
Id. Because federal funds were not expended to improve the
railroad crossing in Easterwood, the Court found that the
plaintiff's tort claim was not preempted.
After Easterwood, it was disputed whether preemption is
triggered by the mere use of federal funds to improve a crossing
or whether greater federal participation is required. In Shots
v. CSX Transportation, Inc., 38 F.3d 304 (7th Cir. 1994), the
Seventh Circuit Court of Appeals refused to read Easterwood
"literally," and held that the Secretary's mere funding of the
installation of crossing devices did not necessarily imply
federal approval of the state's determination of what warning
devices were required at each crossing. Id. Instead, the Seventh
Circuit suggested that preemption would occur only when there was
greater federal participation such as the completion of an
evaluation of the crossing in question by a diagnostic team.
The remaining federal circuit courts of appeal that have
addressed this issue, have rejected the Shots holding, and have
held that by providing funds the federal government has
implicitly approved the states' improvement plans and their
determinations of whether a particular crossing requires
automatic gates and lights under 23 C.F.R. 646.214(b)(3).
Armijo v. Atchison, Topeka, & Santa Fe Ry., 87 F.3d 1188 (10th
Cir. 1996); Michael v. Norfolk S. Ry., 74 F.3d 271 (11th Cir.
1996); Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995).
As stated by the Fifth Circuit Court of Appeals in Hester, these
courts find that:
The fact that federal funds participated in the
installation of the warning devices legally presupposes
that the Secretary approved and authorized the
expenditure, which in turn legally presupposes that the
Secretary determined that the safety devices installed
were adequate to their task.
Hester, supra.
Likewise, the Eighth Circuit Court of Appeals has
consistently held that once warning devices paid for with federal
funds are installed and operating, the railroad's common-law duty
of care ceases, and it is entitled to the benefit of federal
preemption. Kiemele v. Soo Line R.R., 93 F.3d 472 (8th Cir.
1996); Elrod v. Burlington Northern R.R., 68 F.3d 241 (8th Cir.
1995); St. Louis Southwestern Ry. v. Malone Freight Lines, Inc.,
39 F.3d 864 (8th Cir. 1994). See also Dallari v. Southern Pac.
R.R., 923 F. Supp. 1139 (E.D. Ark. 1996); Cartwright v.
Burlington N. R.R., 908 F. Supp. 662 (E.D. Ark. 1995).
In response, Sharp directs our attention to Williams v.
Burlington N. R.R., 849 F. Supp 682 (E.D. Ark. 1994), where the
district court held that preemption does not occur unless federal
funds are expended and a diagnostic team has determined what
warning devices are adequate for the crossing in question. The
Williams case, however, was decided before the Eighth Circuit
first spoke on this issue in Malone, and thus we find it
unpersuasive.
We agree with the Eighth Circuit that, "federal funding is
the touchstone of preemption in this area because it indicates
that the warning devices have been deemed adequate by federal
regulators." Elrod; supra. We find that such a holding is
consistent with Section 109 of the Highway Safety Act which
declares that no funds shall be approved for expenditure by the
FHWA unless "proper safety protective devices complying with
safety standards determined by the Secretary at that time as
being adequate shall be installed or be in operation at any
highway and railroad crossing." 23 U.S.C. 109(e). Moreover,
23 C.F.R. 630.114(b) declares that the FHWA can authorize a
project "only after applicable prerequisite requirements of
Federal laws, and implementing regulations and directives have
been satisfied."
Finally, we do not agree with Sharp's contention that the
Hester and Elrod decisions are distinguishable because it was
undisputed that the crossings did not contain the conditions
listed in (b)(3). We find that such an analysis begs the
question presented by this case. As we have previously
explained, whether the conditions listed in (b)(3) exist at a
particular crossing is for the FHWA, not a jury, to decide. Once
the FHWA has spoken on the issue by providing federal funds for a
state improvement project, the determination of whether (b)(3)
conditions exist has already been made, and it may not be
revisited by the state courts.
For these reasons, we follow the Eighth Circuit's
interpretation of Easterwood and hold that once warning devices
paid for with federal funds are installed and operating, the
railroad's common-law duty to determine what warning devices are
adequate for a particular crossing ceases, and it is entitled to
the benefit of federal preemption. In this case, the Arkansas
State Highway Commission determined that in the interest of
safety two crossbuck warning signs should be installed at every
railroad crossing in Arkansas, including the Louisiana Street
crossing in Marianna. When the FHWA paid for the installation of
these crossbucks, it implicitly determined that such safety
devices were adequate to their task pursuant to 23 C.F.R.
109(e), 630.114(b), and 646.214(b). Accordingly, we affirm the
trial court's ruling that Sharp's claim that the railroad failed
to place adequate warning devices at the crossing is preempted by
federal law.
The dissent argues that such a holding is contrary to public
policy because federal preemption will "provide blanket immunity
to the railroad when proof that conditions have changed over time
was offered at trial." This argument, however, ignores the fact
that the regulations promulgated by the FHWA have stripped the
railroad of any decision-making authority to determine what type
of warning devices are needed at a particular intersection, and
placed such authority in the FHWA. See Easterwood, supra. As
later acknowledged in the dissent, any failure to monitor the
changing nature of an intersection thus must be attributable to a
"break down" in the federal system.
Moreover, the dissent suggests that preemption is not
absolute, and that at some undeterminable point preemption
disappears and the railroad's authority to determine what type of
warning devices are needed is mysteriously resurrected. We,
however, do not agree that federal preemption can be a revolving
door. Rather, we find that federal premption is absolute once
federal funds have been expended to implement the installation of
warning devices at a particular intersection.
B. Failure to Maintain Warning Devices
Finally, Sharp alleges that the trial court erred when it
granted the railroad a directed verdict on his claim that the
railroad was negligent in failing to maintain the crossbucks at
the Louisiana Street crossing. Sharp is correct that the Highway
Safety Act does not preempt claims that a railroad was negligent
in failing to maintain warning devices at a crossing. See, e.g.,
Michael v. Norfolk S. Ry., 74 F.3d 271 (11th Cir. 1996); Kiemele
v. Soo Line R.R., 93 F.3d 472 (8th Cir. 1996). As explained by
the court in Michael, 23 C.F.R. 646.214(b) "deals with the
design and installation of new warning devices, not the
maintenance of those devices." Michael, supra. Thus, while the
Highway Safety Act preempts a claim that the railroad failed to
install adequate warning devices, it does not preempt a claim
that the railroad was negligent in failing to maintain the
warning devices implicitly approved by the FHWA.
Moreover, we disagree with the dissent's assertion that
there is "a very thin line" between these two types of claims.
As previously explained, federal preemption strips the railroad
of its decision-making authority as to what types of warning
devices are needed at a particular intersection. Preemption,
however, does not relieve the railroad of its separate and
distinct duty to maintain the warning devices. We find the line
between these two types of claims to be clear and distinct.
During oral argument, Sharp asserted that the trial court
precluded him from presenting any evidence that the railroad was
negligent in failing to maintain the crossbucks at the Louisiana
Street crossing. The abstract, however, is devoid of any such
ruling. Moreover, after the railroad moved for a directed
verdict on this issue, Sharp proclaimed:
It has been my assumption that [the claim that the
railroad was negligent in failing to maintain the
warning devices] was part of the preemption, your
Honor, and that's the reason I didn't try to put on any
proof.
We agree with Sharp's admission that he failed to present any
proof that the railroad was negligent in this respect.
Accordingly, we affirm the trial court's ruling.
For these reasons, we reverse and remand on the railroad's
direct appeal, and affirm on Sharp's cross-appeal.
Brown, J., concurring in part and dissenting in part.
Robert L. Brown, Justice, concurring in part; dissenting in
part. I agree with the majority opinion on direct appeal but
dissent from the majority's conclusion on cross-appeal.
The issue on cross-appeal is whether federal funds used to
pay for two crossbuck signs at a railroad crossing in Marianna in
1981 shields the railroad from all liability for what plaintiffs
contend became an abnormally dangerous railroad crossing 12 years
later. A subsidiary issue is whether this immunity exists for
the railroad even when no survey of the crossing has been made by
a diagnostic team during this 12-year period. I do not read the
dictum in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658
(1993), to provide blanket immunity to the railroad when proof
that conditions have changed over time was offered at trial and
when there has been no proof of monitoring by any government
agency during the 12-year period. Otherwise, the federal
government could pay for one crossbuck sign and protect the
railroad from liability for decades. That defies common sense
and is contrary to public policy.
The common law in Arkansas provides that where there is
evidence to show that a railroad crossing is abnormally
dangerous, that becomes a jury question. A jury must then decide
whether the railroad breached its duty of ordinary care to give a
warning reasonably sufficient to permit the traveling public to
use the crossing with reasonable safety. Northland Ins. Co. v.
Union Pac. R.R. Co., 309 Ark. 287, 830 S.W.2d 850 (1992);
Missouri Pacific R.R. Co. v. Biddle, 293 Ark. 142, 732 S.W.2d 473
(1987); A.M.I. Civil 3d 1805. In Northland Ins. Co., we stated
that AMI 1805, relating to the railroad's duty at abnormally
dangerous crossings, should be given when there is proof tending
to show the warning devices are inadequate.
The majority opinion hinges its conclusion on CSX Transp.
Inc. v. Easterwood, supra, but, again, that case does not resolve
the issue before this court. In Easterwood, the Court stated
that when federal regulations relating to warning devices are
applicable, state tort law is preempted. Those regulations read:
(3)(i) Adequate warning devices, under
646.214(b)(2) or on any project where Federal-aid funds
participate in the installation of the devices are to
include automatic gates with flashing light signals
when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the
crossing which may be occupied by a train or locomotive
so as to obscure the movement of another train
approaching the crossing.
(C) High Speed train operation combined with
limited sight distance at either single or multiple
track crossings.
(D) A combination of high speeds and moderately
high volumes of highway and railroad traffic.
(E) Either a high volume of vehicular traffic,
high number of train movements, substantial numbers of
schoolbuses or trucks carrying hazardous materials,
unusually restricted sight distance, continuing
accident occurrences, or any combination of these
conditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team
justifies that gates are not appropriate, FHWA may find
that the above requirements are not applicable.
(4) For crossings where the requirements of
646.214(b)(3) are not applicable, the type of warning
device to be installed, whether the determination is
made by a State regulatory agency, State highway
agency, and/or the railroad, is subject to the approval
of FHWA.
23 CFR 646.214(b)(3) and (4).
In Easterwood, the Court concluded that the regulations did
not apply due to lack of federal participation in paying for the
warning devices. Thus, preemption did not occur. The opinion,
in addition, did not confront the critical issue in this case --
does preemption occur more than a decade later when there is
proof that conditions have changed at the crossing and no
diagnostic team has reevaluated the crossing? Without clear
direction in Easterwood that preemption occurs even when proof is
offered that compliance with federal regulations has not
transpired, I am reluctant to convey blanket immunity on the
railroad.
The other cases cited by the majority, while endorsing a
principle of general preemption, also fail to come to grips with
and discuss the precise issue raised in the case at hand. See
Kiemele v. Soo Line R.R., 93 F.3d 472 (8th Cir. 1996); Aronijo v.
Atchison, Topeka & Santa Fe Ry., 87 F.3d 1188 (10th Cir. 1996);
Michael v. Norfolk S. Ry., 74 F.3d 271 (11th Cir. 1996); Elrod v.
Burlington Northern R.R., 68 F.3d 241 (8th Cir. 1995); Hester v.
CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995); St. Louis
Southwestern Ry. v. Malone Freight Lines, Inc., 39 F.3d 864 (8th
Cir. 1994); Dallari v. S. Pac. R.R., 923 F. Supp. 1139 (E.D. Ark.
1996); Cartwright v. Burlington N. R.R., 908 F. Supp. 662 (E.D.
Ark. 1995). That issue is does preemption occur when the federal
system has broken down and monitoring by diagnostic teams has
failed to take place. To maintain the fiction under such
circumstances that the initial federal funding of a crossbuck
sign presupposes a finding by the Secretary of Transportation
that the crossing is still safe seems particularly ludicrous.
Furthermore, in Kiemele v. Soo Line R.R., supra, the Eighth
Circuit stated that there was a fact question relating to whether
the crossbuck signs were "operating" or whether they had lost
their reflectivity. If the crossbuck signs were not operating,
the Eighth Circuit opined that the railroad was not entitled to
federal preemption. It seems to me to be a very thin line indeed
between failure of crossbuck signs to reflect properly and the
inadequacy of passive crossbuck signs as a warning device
altogether. Along the same line is the case of Michael v.
Norfolk S. Ry., supra. There, the installed warning gate was
arguably shorter than what federal regulations required. The
Eleventh Circuit noted that this lapse, if proven, would void any
claim for preemption. Both Kiemele and Michael stand for the
proposition that federal preemption may not occur under the facts
of individual cases.
Both the Seventh Circuit Court of Appeals and two decisions
by the Federal District Court for the Eastern District of
Arkansas have found that blanket federal preemption does not
occur under CSX Transp., Inc. v. Easterwood, supra. See Shots v.
CSX Transp., Inc., 38 F.3d 304 (7th Cir. 1994); Birmingham v.
Union Pacific R.R. Co., No. PB-C-96-573 (E.D. Ark. June 18,
1997); Williams v. Burlington Northern R.R. Co., 849 F. Supp. 682
(E.D. Ark. 1994). In Shots, the fiction that the Secretary of
Transportation approved the warning devices at the crossing at
issue is taken to task. Regulations b(3) and (4), according to
the Seventh Circuit, merely set out criteria and not what was
required at the particular crossing at issue. The two district
court opinions (Williams and Birmingham) emphasize that there was
inadequate proof that a diagnostic team had evaluated the
pertinent crossings. This lapse in evaluation of the crossings
raised a material issue of fact regarding whether preemption ever
occurred which precluded summary judgment in both instances.
In the instant case, the Sharps presented proof of
noncompliance with federal regulations which should at the very
least raise a fact issue regarding the application of preemption
of state common law and immunity for the railroad. That proof
included not only the fact that one crossbuck sign on Sharp's
side of the tracks was inadequate but also proof of the following
b(3) conditions that would require a gate and flashing lights:
multiple tracks
high volume of vehicular traffic
number of school buses
no diagnostic team evaluation.
There was also proof that multiple accidents had occurred at this
precise crossing. Surely, this proof of inadequacy was
sufficient to thwart summary judgment.
There is, finally, the point that with such full-blown
immunity, there is no incentive for Union Pacific to measure
safety at railroad crossings. The majority opinion concludes
that federal preemption is absolute even when federal safety
regulations are not followed and that the railroads of this land
have been "stripped" of all decision-making authority concerning
safety at railroad crossings. I cannot go that far because
federal regulations and CSX Transportation, Inc. v. Easterwood,
supra, do not contemplate that the railroad is out of the picture
altogether or immune from liability when the federal system fails
to operate. The Court made that clear in Easterwood:
Indeed, 646.214(b)(3) and (4) effectively set the
terms under which railroads are to participate in the
improvement of crossings. The former section envisions
railroad involvement in the selection of warning
devices through their participation in diagnostic teams
which may recommend the use or nonuse of crossing
gates. 646-214(b)(3)(i)(F) and (3)(ii). Likewise,
646.214(b)(4), which covers federally funded
installations at crossings that do not feature multiple
tracks, heavy traffic, or the like, explicitly notes
that railroad participation in the initial
determination of "the type of warning device to be
installed" at particular crossings is subject to the
Secretary' approval.
....
The Secretary's regulations therefore cover the subject
matter of the state law which, like the tort law on
which respondent relies, seeks to impose an independent
duty on a railroad to identify and/or repair dangerous
crossings.
Easterwood, 507 U.S. at 670-71.
What is contended in the instant case is that the diagnostic
team, with railroad participation, has failed to evaluate a
dangerous crossing in Marianna, and proof was provided to support
that contention. Far from my advocating a "revolving door" on
preemption, when the federal apparatus has broken down,
preemption simply does not occur. Otherwise, the public is
protected neither by federal law nor common law tort. It is
beyond dispute that the intention of the Secretary of
Transportation in adopting the regulations was not to leave the
traveling public vulnerable and without any mechanism to assure
safety.
I respectfully dissent from the affirmance of summary
judgment on cross-appeal.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
