Norfolk Southern Railway Company and Norfolk Southern Corporation v. Ronny P. Johnson et al.
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2010-2011
_________________________
1090011
_________________________
Norfolk Southern Railway Company and Norfolk Southern
Corporation
v.
Ronny P. Johnson et al.
Appeal from Clarke Circuit Court
(CV-06-61)
BOLIN, Justice.
Norfolk Southern Railway Company and Norfolk Southern
Corporation (collectively "Norfolk Southern") 1 appeal from a
1
Norfolk Southern Railway
Norfolk Southern Corporation.
Company
is
a
subsidiary
of
1090011
judgment entered on a jury verdict awarding compensatory and
punitive damages to Ronny P. Johnson, Kim Johnson, Rolison
Trucking
Company,
Johnson/Rolison
and
Gail
Rolison
plaintiffs")
on
(collectively
the
"the
Johnson/Rolison
plaintiffs' claims arising from a collision at a railroad
crossing in Clarke County between a tractor-trailer rig owned
by Gail Rolison and being operated by Johnson and a train
being operated by Norfolk Southern.
We reverse and remand.
Facts and Procedural History
I. The Crossing
The railroad-crossing collision that is the basis of this
action
occurred
in
Clarke
County
at
a
railroad
crossing
located at the intersection of Walker Springs Road and Norfolk
Southern's main-line track between Mobile and Selma.
Walker
Springs Road is a two-lane paved road that basically runs east
and west and is intersected by
Norfolk Southern's mainline
track that basically runs north and south between Mobile and
Selma.
The
portion
of
track
crossing includes a broad
southeast
of
the
at
the
curve.
intersection
and
Walker
Springs
Road
The broad curve begins
runs
generally
in
a
northwesterly direction before turning back to the northeast
2
1090011
north of the crossing.
The main-line track intersects Walker
Springs Road in the middle of the curve at approximately a 65degree angle.
Located to the south of the Walker Springs Road crossing
and adjacent to the main-line track on the west side is a
sidetrack.
The sidetrack parallels the main-line track along
its curvature for a distance of 1,138 feet and then terminates
100 feet south of the crossing.
The sidetrack was used by
Norfolk for the periodic storage of boxcars necessary for
servicing
a
local
industry.
Section
103(d)
of
Norfolk
Southern's operating rules provides:
"Engines or cars left on any track must be properly
secured, must clear crossings and crossing signal
circuits.
When practicable, equipment must be at
least 100 feet from public or private crossings.
Public
crossings
must
not
be
obstructed
unnecessarily."
Section 822 of the operating rules provides: "Unattended ontrack equipment either on or off the rail must be secured,
locked, and left clear of all tracks that are in service
without blocking view from crossings."
Gary Utley, a division
road foreman for Norfolk Southern responsible for supervising
engineers, testified that section 103(d) imposes upon Norfolk
Southern not only a duty to maintain boxcars at a distance of
3
1090011
not less than 100 feet from a crossing, but also a duty not to
place boxcars on a side track in such a way as to impede a
motorist's
sight line at a crossing.
Gary Wolf, Norfolk
Southern's expert, testified that Norfolk Southern had a duty
to maintain a "clearing sight distance" so that a motorist
within between 15 and 50 feet of the track has a sight line of
approximately
Franklin,
a
1,100
feet
district
up
train
and
down
master
the
for
track.
Norfolk
James
Southern,
testified that Norfolk Southern employees are aware of the
100-foot requirement for cars left on a track but that he did
not
know
if
Norfolk
Southern
gave
any
direction
to
its
employees regarding obstructed sight lines.
Norfolk Southern had located on both the east and west
approach to the crossing on Walker Springs Road regulation
railroad crossbuck signs –- white, X-shaped signs with the
words "Railroad Crossing" written on them.
The signs were in
good condition and plainly visible on the day of the accident.
The crossbuck sign on the east approach to the track was
located at 12 feet from the near rail while the crossbuck sign
located on the west approach to the crossing was located at 24
feet from the near rail.
According to Norfolk Southern's
4
1090011
operating rules, the crossbuck sign should have been placed no
further that 12 to 15 feet from the near rail. 2
a
Norfolk
Southern
engineer
and
a
member
David Martin,
of
its
safety
committee, testified that the Walker Springs Road crossing was
a "bad crossing" and that the presence of boxcars on the
sidetrack created a "trap" for the public and for Norfolk
Southern personnel.
Gerry Faye Griffin lived near the Walker Springs Road
crossing and was familiar with it because she had traveled
over it "all [her] life."
Griffin described the crossing when
the boxcars were present on the sidetrack as follows:
"When the boxcars were pulled onto that siding,
all you could see was a line of cars all the way to
the horizon. And it's a curve in the track there,
so it makes it more difficult. When you pull up to
that crossing to come across, you could not see
until –- you had to ease, ease, ease your car up so
that you could peep around the end of the cars....
2
Norfolk Southern had represented from the beginning of
the litigation process that the crossbuck sign on the west
approach to the crossing was located 12 feet from the track on
the day of the accident and in compliance with its operating
rules.
However, it was revealed during the course of the
trial that the crossbuck sign on the west approach to the
crossing was actually located 24 feet from the track on the
day of the accident and not in compliance with Norfolk
Southern's operating rules.
Subsequently, Norfolk Southern
stipulated during trial that the crossbuck sign
was not
located 12 feet from the track but was, in fact, located 24
feet from the track on the day of the accident.
5
1090011
My vehicle would have to be so [close] that I could
not even see the first rail of the track. I would
have to be that close to the track. I would have to
peep over to look around the ends of the cars."
II. The Accident
Ronny P. Johnson lived a few miles east of the Walker
Springs Road crossing and was very familiar with the crossing
because he traveled over it on a daily basis.
Johnson was
aware that the crossing was active and that boxcars would
frequently be parked on the sidetrack.
when
a
motorist
would
approach
Johnson testified that
the
Walker
Springs
Road
crossing from the west "you couldn't see to the right (south)"
if boxcars were parked on the sidetrack. He stated that "you
would have to be near about all the way up on the track before
you could see down the track."
On February 14, 2005, at approximately 4:15 p.m., Johnson
approached the Walker Springs Road crossing from the west in
a tractor-trailer rig fully loaded with logs.
The log truck
was owned by Gail Rolison, and Johnson was operating the log
truck within the line and scope of his employment with Rolison
Trucking
Company.
Johnson
testified
that
he
came
to
a
complete stop with the front of the truck approximately two
feet
behind
the
crossbuck
sign.
6
Johnson
stated
that
he
1090011
shifted the transmission to first gear and was stopped for
approximately three to four seconds.
north was clear and unobstructed.
Johnson's view to the
However, 10 to 12 boxcars
were parked on the sidetrack south of the crossing.
The north
end of the nearest boxcar to the crossing was approximately
200 feet south of the crossing. 3
Johnson stated that he could
not see around the boxcars to his right from the point at
which
he
came
to
a
stop
behind
the
crossbuck
sign.
He
testified that he looked to his left (north) and right (south)
and listened "real good" but did not hear or see a train.
Johnson then began to slowly pull forward. He testified as
follows:
"Q.
[Counsel
for
the
Johnson/Rolison
plaintiffs:] Now, when you started easing forward,
which direction did you look?
"A. I was looking to my right.
"Q. You looked to your right?
"A. Yes, sir.
"Q. Toward the boxcars. As you were easing
forward, did you see a train?
"A. No, sir.
3
This
Southern.
measurement
was
taken
7
by
employees
of
Norfolk
1090011
"Q. Did you hear a train?
"A. No, I didn't.
"Q. As you were easing forward, did you look in
any other direction?
"A. Yes. I looked to my left.
"Q. And, again, why would you be looking to your
left?
"A. Because trains use that track both ways.
"Q. You have to look to the left.
to the left?
So you looked
"A. Yes.
"Q. Did you see a train?
"A. No, sir.
"Q. Did you hear a train?
"A. No, sir.
"Q. And you were continuing to ease forward.
What happened next?
"A. I was easing forward, and I was looking to
my left. Then I looked straight ahead. And when I
looked back, I seen the lights on the train.
"Q. When you looked back to your right, you saw
the lights on the train?
"A. Yes, sir.
"Q. The first time?
"A. Yes, sir.
8
1090011
"Q. At the time you saw the lights on the train,
could you stop before you got on that railroad
track?
"A. No, sir.
"Q. Could you
railroad track?
speed
up
and
get
across
that
"A. No, sir.
"Q. You're in low gear, pulling a fully loaded
log truck?
"A. That's right.
"Q. Were
anything?
you
helpless
at
that
point
to
do
"A. Yes, sir.
"Q. Now, the last thing you remember seeing was
the lights on the train?
"A. Yes, sir."
Johnson was severely injured when a northbound train collided
with the log truck.
The train impacted the log truck near
where the trailer attaches to the tractor.
On cross-examination, Johnson testified as follows:
"Q. [Counsel for Norfolk Southern:] ... [Y]ou
knew the boxcars were there where they were on the
day of your accident before you got to the crossing
that day?
You had seen them there in the days
immediately preceding your accident; is that right?
"A. Yes, it is.
9
1090011
"Q. So you knew they were there?
"A. Yes, I did.
"Q. And you knew whether or not they blocked
your view and how much they had blocked your view,
didn't you?
"A. Yes, I did.
"Q. Knowing that, Mr. Johnson, may I ask why you
didn't stop with the front of your truck a little
bit past the crossbuck sign if, when you stopped
behind it, you could not see to the right down the
track?
"A. I've been across that crossing numbers of
times.
And when you come to that track, you stop
and look and listen. By the time I get to where I
can peek around the corner of that boxcar, my truck
–- the nose of my truck would be up on that track.
"....
"Q. As you came up to the crossing and stopped
behind the crossbuck, you looked left?
"A. I looked both ways.
"Q. I know. You looked left, though, first?
"A. I was looking to my right.
"Q. You looked right first?
"A. Yes.
"Q. And you saw the boxcars that you had seen on
other days in the several days leading up to this
accident; is that right?
"A. Yes.
10
1090011
"Q. And you knew at the time of the accident
that those boxcars blocked your view to the right?
"A. Yeah.
They blocked the view.
"....
"Q.
But
when
you
stopped,
you
stopped
nonetheless behind the crossbuck and never stopped
again, is your testimony? Once you started up, you
never stopped again. Is that what your testimony
is?
"A. I did like I always do. I stopped, looked
and listened and started moving forward.
By the
time I get where I could peek around the edge of
those boxcars, my truck would be up on that track.
"Q. Did you stop again after you began to roll
forward after stopping, as you've testified, behind
the crossbuck?
"A. If I would have stopped again, my truck
would be on that track.
"Q. Well, you've heard the testimony that the
crossbuck was at twenty-four feet, right?
"A. Yes, sir.
"Q. And that's twenty-four feet from the near
rail. You've heard that testimony?
"A. Yes, sir.
"Q. So maybe you have to help me out. Why
couldn't you let your truck role just a little bit
and then stop again before reaching the rail?
"A. When I would pull up where I could be able
to see around those boxcars, the front of my truck
would be on those rails.
Before I could see
11
1090011
anything down the side of them boxcars, my truck
would be up on those rails. [4]
"....
"Q. Well, if that crossbuck is twenty-four feet
from that near rail, you could certainly stop your
truck at some point between that crossbuck and that
rail without being on the rail, couldn't you?
"A. Like I say, by the time I get to where I can
look around the corner of that boxcar, the nose of
my truck is on this rail, that first rail on this
main-line track.
"....
"Q. And its your testimony that there was
absolutely no spot between the crossbuck and the
rail where you could see the train coming without
your truck being on the track.
Isn't that your
testimony?
"A. By the time I got to where I could peek down
the side of that rail, the side of that –- east side
of that boxcar, my truck would be on that track.
"Q. Well, that's because you kept moving? That's
because you kept moving?
"A. If I had made a complete stop there, my
truck would have been on that track. I would have
still got hit if I had made a complete stop.
"Q. What prevented you from stopping somewhere
between the crossbuck and the near rail?
4
It must be noted that Gail Rolison testified that the
tractor in question measured approximately 130 inches (10.8
feet) from front bumper to the rear of the cab.
Johnson
testified that his seat was positioned all the way to the rear
of the cab.
12
1090011
"A. I still wouldn't
because of the boxcars."
have
been
able
to
see
The accident was witnessed by Barsha Hunt and Deputy
Michael
Robinson,
the
chief
deputy
for
the
Clarke
County
Sheriff's Department, who were at the time of the accident in
a line of traffic directly behind Johnson at the crossing.
Deputy Robinson testified that he was familiar with the Walker
Springs Road crossing and that when boxcars are parked on the
sidetrack his view to the south is obstructed when he is
traveling eastbound over the crossing and that a motorist
traveling east over the crossing could not see a northbound
train until it appeared
from behind the boxcars.
Deputy
Robinson testified that "you almost have to get the front end
of your vehicle to the track before you can see southbound."
However, Deputy Robinson admitted on cross-examination that he
did
not
know
what
others
could
see
crossing at the time of the accident.
to
the
south
of
the
Deputy Robinson, who
was in the second vehicle behind Johnson, testified that he
witnessed Johnson at a complete stop near the crossbuck sign.
He stated that Johnson then began to "slow[ly] creep" forward
13
1090011
toward the track. 5
Deputy Robinson testified that at the time
Johnson started moving forward he had not heard or seen a
train.
Deputy Robinson stated that, as Johnson neared the
track, however, he heard a whistle blow and then two to five
seconds later he heard a second whistle blow followed by an
almost
simultaneous
impact
between
the
log
truck
and
the
train.
Hunt testified that she lived in the area of the Walker
Springs Road crossing and that she was familiar with the
crossing.
She stated that boxcars would sometimes be parked
on the side-track south of the crossing, which would have the
effect of obstructing her view to the south when she would
travel east over the crossing.
Hunt testified that she would
have to "take [her] vehicle, the front end of it, your bumper,
up to the first railing of the track in order to look around
those boxcars."
Hunt was stopped in the line of vehicles directly behind
Deputy Robinson at the time of the accident.
Hunt stated that
Johnson had stopped the log truck near the crossbuck sign.
Hunt stated that she did not initially see or hear a train
5
Deputy Robinson testified in an earlier deposition that
he did not witness Johnson move forward.
14
1090011
while she was stopped at the crossing.
Hunt testified that
she witnessed Johnson "ease [the log truck] up" toward the
railroad track and then simultaneously she heard a whistle
blow as the train collided with Johnson's log truck.
III. Inside the Train
Dexter Grandison was employed by Norfolk Southern as a
conductor and was seated inside the engine car 6 on the left as
the train approached the Walker Springs Road crossing. J.D.
Summers was employed by Norfolk Southern as an engineer and
was seated inside the engine car on the right as the train
approached the Walker Springs Road crossing.
Before leaving
Mobile, Grandison and Summers had inspected the horn, lights,
and brakes on the engine and had determined that they were all
in good working order.
Grandison
Walker
Springs
testified
Road
that
as
the
crossing
he
was
keeping a "visual lookout."
train
doing
approached
the
paperwork
and
He stated that he saw the line of
boxcars on the sidetrack to his left and that he could not see
over the top of them.
Grandison testified that Summers was
sounding the horn as they approached the Walker Springs Road
6
The engine was owned by Union Pacific Railroad and was
being operated by Norfolk Southern.
15
1090011
crossing
but
proximity
to
that
the
because
adjacent
the
engine
boxcars
the
was
in
sound
such
of
the
close
horn
vibrated "back off the cars" like they were "in a tunnel or
something."
Data
retrieved
from
the
engine's
event-data
recorder, i.e., "the black box," indicates that the engine's
horn was sounded for approximately 21 seconds, or over onequarter mile, as the train approached the Walker Springs Road
crossing.
Grandison testified that he heard Summers say "Oh s---"
and that when he looked at Summers he noticed that Summers's
"eyes had done got real big."
Grandison stated that he then
looked down the track and saw the "nose of a truck easing up
on the crossing." 7
Grandison estimated that the train was
approximately 150 to 200 feet from the truck at the time he
noticed the nose of the truck "easing up on the crossing."
Grandison testified that after seeing the nose of the truck he
instantly dove to the floor of the engine and within a "split
second" the train collided with the log truck.
7
Grandison testified that the engine was in the curve on
the approach to the crossing and that his view of the western
approach to the crossing was blocked by the boxcars on the
sidetrack to his left. Thus, the only thing he could see
beyond the boxcars was the nose of the log truck.
16
1090011
Summers
testified
that
as
the
train
approached
the
crossing he began sounding the engine's horn as the train
passed the "whistleboard" as he was required to do. Summers
stated that the train was approximately 500 feet from the
crossing when he first noticed the "top of the trailer and the
logs" over the row of boxcars on the sidetrack.
Summers
testified that as the train got closer to the crossing he
could see the log truck slowly "coming up to the crossing."
He stated that he never saw the log truck stop.
Summers
testified that when the train was approximately 100 feet from
the crossing the log truck entered the "foul" of the track,
i.e., within approximately four feet of the rail.
Summers
stated that when he realized the log truck was not going to
stop at the crossing, he hit the emergency brake and dove for
the floor of the engine immediately before the impact with the
log truck. 8
IV. Train Speed
8
Summers stated that he intended to activate the emergency
brake.
However, evidence from the engine's event-data
recorder, i.e., "the black box," indicates that Summers may
have activated the locomotive brake rather than the emergency
brake in the process of diving to the floor of the engine and
that the train went into emergency-braking mode only as the
result of the impact with the log truck.
17
1090011
The speed limit for freight trains at the Walker Springs
Road
crossing
as
determined
by
the
Federal
Railroad
Administration was 49 m.p.h. Grandison testified that the
train
was
traveling
at
approached the crossing.
approximately
44-45
m.p.h.
as
it
Summers testified that the train was
traveling at approximately 48-49 m.p.h. as it approached the
crossing.
Data retrieved from the black box indicates that
the speed of the train was 47-48 m.p.h. as it approached the
crossing.
Wolf testified that based on his evaluation of the
available information, including data from the black box, the
speed of the train was 47 m.p.h. moments before its impact
with the log truck.
However, the Johnson/Rolison plaintiffs assert that there
was evidence presented from which it could be determined that
the train was actually exceeding the mandated 49 m.p.h. speed
limit.
The
Johnson/Rolison
plaintiffs
note
that
a
disk
containing the data retrieved from the black box was provided
to Utley by Steve Tucker, an attorney for Norfolk Southern.
Utley
was
to
print
and
prepare
a
document
from
the
disk
interpreting the pertinent data retrieved from the black box.
The wheel size of the engine must be input into the computer
18
1090011
program before the black-box data can be printed from the
disk.
The evidence indicated that the size of the engine's
wheels
could
affect
the
train
transcript of the printed data.
speed
reflected
on
the
For example, if the wheel
size is increased, the train speed reflected on the printed
data increases; likewise, if the wheel size is decreased, the
train speed reflected on the printed data decreases.
Tucker
told Utley that 40.88 inches was the wheel size to be used in
printing the data from the disk.
Norfolk Southern states that
the Johnson/Rolison plaintiffs' contention that the wheel size
of 40.88 inches was simply "pulled from thin air" by Tucker is
misleading.
40.88
inches
Railroad,
Norfolk Southern contends that the wheel size of
was
which
obtained
owned
the
from
records
engine,
as
of
Union
verified
Pacific
by
Randy
Eardensohn, the manager of the Event Recorder Center for Union
Pacific.
The
Johnson/Rolison
plaintiffs
next
note
that
Wolf
originally testified in his deposition that the train came to
rest 1,059 feet past the point of impact, which is consistent
with Summers's testimony that he applied the emergency brake
moments before impact and with the data obtained from the
19
1090011
black box that reflected a train speed of 47 m.p.h.
testified
inaccurate
at
trial
train
that
consist,
this
opinion
i.e.,
the
was
based
locomotive
Wolf
on
and
an
the
railcars, which did not accurately reflect the running order
of the railcars.
However, after his deposition and before
trial Wolf was provided data obtained from the AEI scanner and
the Universal Machine Language Equipment Register ("UMLER")
that indicated that six railcars shown on the train consist to
be located at the rear of the train were in fact the first six
railcars located behind the engine car at the front of the
train.
Based on the new information, Wolf opined at trial
that the actual stopping distance of the train was 1,417 feet
past the point of impact. 9
Steve
McGill,
a
track
supervisor
employed
by
Norfolk
Southern, prepared an accident report following the accident
in which he indicated that the train stopped approximately
1,500 feet past the point of impact.
9
The Johnson/Rolison
The UMLER registry contains the weight and length of
every railcar operating in North America. The AEI scanner is
positioned on each track and electronically records each
railcar and its order in the train consist as the train passes
the scanner. The six railcars that were determined to be at
the front of the train were approximately 358 feet in length
and account for the difference between 1,417 feet and 1,059
feet.
20
1090011
plaintiffs conclude that if one accepts McGill's 1,500-foot
stopping
distance,
understates
the
then
speed
of
the
data
the
from
train.
the
The
black
box
Johnson/Rolison
plaintiffs state that if one accepts the 1,500-foot stopping
distance and Summers's testimony that he applied the emergency
brake
before
impact,
then
the
data
from
the
black
box
understates the speed of the train even more.
V. Sight Distance
Voluminous photographs of the accident scene were taken
on
the
afternoon
of
and
on
the
day
after
the
accident.
Additionally, Norfolk Southern performed a reenactment of the
accident in August 2008, at which time numerous photographs
were also taken.
This voluminous photographic evidence was
introduced by the parties into evidence.
As mentioned above, the north end of the boxcar on the
sidetrack nearest to the crossing was approximately 200 feet
south of the crossing.
approach
to
the
crossing
The crossbuck sign on the western
where
Johnson
testified
that
he
stopped was located 24 feet from the near rail of the track.
The Johnson/Rolison plaintiffs presented photographs taken by
Jimmy Strickland, a railroad workers' union representative, on
21
1090011
the day after the accident before the boxcars on the sidetrack
were moved.
These photographs were taken from a point at or
behind the crossbuck and show that a motorist's view of the
track
to
the
south
is
obstructed
by
the
boxcars
on
the
sidetrack.
Norfolk Southern presented photographs taken the day of
and the day after the accident before the boxcars on the
sidetrack were moved.
These photographs indicated that a
motorist stopped at the crossbuck, whose view of the track to
the south was obstructed by the boxcars, had sufficient room
to pull forward of the crossbuck -- clear of a train moving
through the crossing –- and obtain an unobstructed view of the
track to the south.
Norfolk Southern reenacted the accident in August 2008.
Boxcars similar to those present on the day of the accident
were placed on the sidetrack with the northern end of the
closest one to the crossing being placed 200 feet to the south
of the crossing.
The photographs of the reenactment were
taken
the
from
inside
cab
of
a
tractor-trailer
rig
with
dimensions similar to those of the tractor-trailer rig Johnson
was
driving
on
the
day
of
the
22
accident.
Two
series
of
1090011
reenactment photographs were taken.
car
was
placed
1,610
feet
south
In the first, an engine
of
the
crossing
and
the
tractor-trailer rig was placed on the western approach to
Walker Springs Roads with the front bumper of the tractor 10
feet 10
from
the
near
rail
with
the
driver's
approximately 18 feet from the near rail.
eye
being
The locomotive was
then moved north toward the crossing in 70-foot intervals, and
the tractor remained stopped with its front bumper 10 feet
from the near rail.
interval.
Photographs were taken at each 70-foot
This process was repeated until the last photograph
was taken with the train at 70 feet south of the crossing.
The tractor was then backed up until its bumper was 15
feet from the near rail and the driver's eye was approximately
23 feet from the near rail.
The locomotive was then backed up
to the south in 70-foot intervals while the tractor's bumper
remained at 15 feet from the near rail.
Photographs were
again taken at the 70-foot intervals.
The
reenactment
photographs
indicate
that
a
train
is
visible to the south of the crossing –- and unobstructed by
the boxcars on the side track –- to the driver of a tractor10
A vehicle is not considered to be "fouling a track" if
it is more than four feet from the track.
23
1090011
trailer rig similar to the one being driven by Johnson on the
date of the accident when the train was within 1,610 feet or
less from the crossing and the front bumper of the tractor was
15 feet or less from the near rail on the western approach to
the crossing.
The photographic evidence also shows the curve in this
section
of
the
approximately
track.
400
feet
The
south
track
of
curves
the
to
the
crossing,
and
east
the
photographs demonstrate that this curve actually improves an
eastbound motorist's view of the track to the south.
Darrell
Linder,
the
Alabama
State
Trooper
who
investigated the accident and who is also a certified accident
reconstructionist, testified that in his opinion Johnson's
view of the oncoming train was not obstructed by the boxcars
on the sidetrack and that Johnson had sufficient time and
space to see the oncoming train and then yield to it.
Karen Brooks, a school-bus driver who lives in the area
of the Walker Springs Road crossing, testified that she drove
a school bus over the crossing at approximately 3:30 p.m. (45
minutes before the accident), traveling in the same direction
in which Johnson was driving the log truck at the time of the
24
1090011
accident. Brooks testified that she stopped the school bus
approximately 20 feet from the near rail (6 feet closer to the
track than
Johnson stated that he stopped) "right at the
crossing so that [she] could look up and down the track."
Brooks stated that she saw the boxcars on the sidetrack while
she was stopped at the crossing and that they did not obstruct
her view of the track to the south.
She testified that she
could see a "long way" past the boxcars on the sidetrack.
VI. Proceedings Below
On April 12, 2006, Grandison sued Norfolk Southern in the
Clarke Circuit Court, asserting a negligence claim under the
Federal Employer's Liability
("FELA"),
maintain
and
alleging
adequate
Act, 45 U.S.C. § 51 et seq.
that
visibility
Norfolk
at
the
Southern
Walker
failed
Springs
to
Road
crossing for motorists to see the approach of oncoming trains;
that Norfolk Southern failed to use reasonable care to provide
him a reasonable and safe workplace; that Norfolk Southern
failed to use reasonable care to provide him with safe and
suitable equipment; that Norfolk Southern failed to provide
proper standards, policies, or procedures to allow him to
perform
his
duties;
and
that
25
as
the
result
of
Norfolk
1090011
Southern's negligence he was severely injured as the result of
the collision between the train he was riding and the tractortrailer
rig
being
operated
by
Johnson.
Grandison
also
asserted negligence and wantonness claims against Johnson and
Rolison Trucking Company, alleging that Johnson negligently
and/or wantonly allowed the tractor-trailer rig to collide
with the train in which Grandison was riding and that Rolison
Trucking, as Johnson's employer, was vicariously liable for
Johnson's
actions.
Subsequently,
Grandison
amended
his
complaint to add Gail Rolison as a defendant.
On May 9, 2006, Norfolk Southern sued Johnson, Rolison,
and Rolison Trucking in the United States District Court for
the Southern District of Alabama, Southern Division, alleging
negligence
and
wantonness
and
seeking
to
recover
for
its
property damage.
On May 24, 2006, Norfolk Southern answered Grandison's
complaint in the state-court action, denying liability and
alleging, among other things, that the sole proximate cause of
the accident was Johnson's negligence and that Grandison's
claims were preempted, precluded, or superseded by federal
law.
26
1090011
On May 26, 2006, Johnson, Rolison, and Rolison Trucking
answered
Grandison's
allegations
and
complaint,
asserting
generally
certain
denying
affirmative
the
defenses.
Rolison and Rolison Trucking asserted a counterclaim against
Grandison
and
cross-claims
and
third-party
claims
against
Norfolk Southern and Summers seeking to recover damages for
property
and
economic
loss
and
alleging
negligence,
wantonness, and a violation of § 37-2-81, Ala. Code 1975.
Johnson also
asserted a counterclaim against Grandison and
cross-claims and third-party claims against Norfolk Southern
and Summers seeking to recover damages for personal injuries
under theories of negligence, wantonness, and a violation of
§ 37-2-81, Ala. Code 1975. Johnson's
wife, Kim, moved to
intervene
in
counterclaim
Grandison
and
the
action
to
cross-claims
assert
and
a
third-party
claims
against
against
Norfolk Southern and Summers seeking to recover damages for
loss of consortium under theories of negligence, wantonness,
and a violation of § 37-2-81, Ala. Code 1975.
The trial court
granted Kim's motion to intervene.
On May 30, 2006, Johnson, Rolison, and Rolison Trucking
moved
the
federal
district
court
27
to
dismiss
or,
in
the
1090011
alternative, to stay Norfolk Southern's federal-court action
under the abstention doctrine pursuant to Colorado River Water
Conservation District v. United States, 424 U.S. 800 (1976).
On September 26, 2006, the federal district court entered an
order denying the motion to dismiss and granting the motion to
stay finding that the "potential for piecemeal litigation"
weighed in favor of abstention.
On
June
12,
2006,
Norfolk
Southern
moved
the
Clarke
Circuit Court to dismiss the cross-claims against it pursuant
to § 6-5-440,
Ala. Code 1975. 11
On November 28, 2006, the
trial court entered an order denying Norfolk Southern's motion
to dismiss.
Norfolk Southern then petitioned this Court for
a writ of mandamus arguing that the cross-claims filed by the
Johnson/Rolison plaintiffs were compulsory counterclaims in
the
prior
pending
federal
pursuant to § 6-5-440,
Norfolk
Southern's
action
and
Ala. Code 1975.
petition,
11
holding
must
be
dismissed
This Court denied
that
the
compulsory
Section 6-5-440 provides: "No plaintiff is entitled to
prosecute two actions in the courts of this state at the same
time for the same cause and against the same party. In such a
case, the defendant may require the plaintiff to elect which
he will prosecute, if commenced simultaneously, and the
pendency of the former is a good defense to the latter if
commenced at different times."
28
1090011
counterclaims fell within the exception set forth in Terrell
v. City of Bessemer, 406 So. 2d 337 (Ala. 1981), and should
not
be
dismissed
because
the
federal
district
court
decided to abstain from exercising its jurisdiction.
had
See Ex
parte Norfolk Southern Ry., 992 So. 2d 1286 (Ala. 2008).
On
December
20,
2006,
Norfolk
Southern
and
Summers
answered the cross-claims and third-party claims asserted by
the
Johnson/Rolison
plaintiffs.
Norfolk
Southern
also
asserted a counter-cross-claim against Johnson, Rolison, and
Rolison
Trucking
seeking
to
recover
for
damages
to
its
property.
On December 17, 2007, Norfolk Southern and Summers moved
the
trial
court
for
asserted against them.
a
summary
judgment
as
to
all
claims
Norfolk Southern also moved the trial
court for a summary judgment as to its counter-cross-claim.
On June 27, 2008, the Johnson/Rolison plaintiffs filed their
opposition to the motions for a summary judgment.
Following
a hearing, the trial court, on October 6, 2008, entered an
order denying the motions for a summary judgment.
29
1090011
The case proceeded to trial on March 30, 2009. 12
Johnson/Rolison
plaintiffs'
theory
of
Norfolk
The
Southern's
liability was based on the alleged obstruction of Johnson's
line of sight by the boxcars on the sidetrack, the alleged
failure of the train crew to sound the horn on the engine, and
the alleged excessive speed of the train.
The Johnson/Rolison
plaintiffs stipulated at the beginning of the trial that they
were
making
"no
claims
that
the
warning
devices,
traffic
guides, traffic signals, or traffic control devices at the
Walker Springs [Road] Crossing were inadequate, inappropriate,
or violated state
or
federal law."
Norfolk Southern and
Summers moved the trial court for a preverdict judgment as a
matter of law ("JML") at the close of the Johnson/Rolison
plaintiffs'
case,
which
the
trial
court
denied.
Norfolk
Southern and Summers renewed their motion for a preverdict JML
at the close of all the evidence, which the trial court also
denied.
12
On that date, Grandison moved to dismiss his claims
against the Johnson/Rolison plaintiffs and the Johnson/Rolison
plaintiffs moved to dismiss their claims against Grandison.
The trial court granted the motions to dismiss. During jury
deliberations and prior to the jury's returning its verdict in
this case, Grandison and Norfolk Southern reached a compromise
settlement as to Grandison's FELA claim. Therefore, Grandison
is not a party to this appeal.
30
1090011
On April 17, 2009, the jury returned verdicts in favor of
Summers on all claims asserted against him; in favor of the
Johnson/Rolison plaintiffs on their claims asserted against
Norfolk
Southern;
and
in
favor
of
Johnson,
Rolison,
and
Rolison Trucking on Norfolk Southern's claims against them
seeking a recovery for property damage.
Johnson/Rolison
Johnson,
damages
plaintiffs'
compensatory
of
$3,000,000;
damages
damages
(2)
of
for
The jury assessed the
as
follows:
$1,500,000
Kim
Johnson,
and
(1)
for
punitive
compensatory
damages of $250,000; (3) for Rolison Trucking, compensatory
damages of $130,000; (4) and
damages of $68,250.
for Gail Rolison, compensatory
On May 7, 2009, the trial court entered
a judgment based on the jury verdicts.
On May 18, 2009, Norfolk Southern filed a postverdict
motion for a JML as to the negligence and wantonness claims;
renewed its motions to dismiss pursuant to § 6-5-440,
Ala.
Code 1975; moved the trial court for a new trial or, in the
alternative, to alter, amend, or vacate the trial court's
judgment as to the property-damage claims; moved the trial
court for a remittitur against Johnson and Rolison Trucking;
moved the trial court for a hearing pursuant to Hammond v.
31
1090011
City of Gadsden, 493 So. 2d 1374 (Ala. 1986); and moved the
trial court for a stay of execution of judgment.
On August 14, 2009, during the
Southern's
postjudgment
motions,
hearing on Norfolk
the
parties
expressly
consented on the record, pursuant to Rule 59.1, Ala. R. Civ.
P., to extend the trial court's time for ruling on the pending
postjudgment motions through August 24, 2009.
2009,
Norfolk
motions.
Southern
renewed
all
of
On August 21,
its
postjudgment
On August 24, 2009, the trial court entered an order
denying all Norfolk Southern's postjudgment motions except the
motion for a remittitur as to Rolison Trucking, which it
granted
in
part
Norfolk
Southern
and
remitted
filed
its
that
timely
judgment
notice
of
to
$69,410.
appeal
on
September 23, 2009.
Discussion
I. Negligence Claims
Norfolk Southern contends that the trial court erred in
submitting the Johnson/Rolison plaintiffs' negligence claims
to
the
jury
because,
it
says,
negligent as a matter of law.
Johnson
was
contributorily
Specifically, Norfolk Southern
argues that Johnson failed to properly stop, look, and listen
32
1090011
at the Walker Springs Road crossing as required by the law of
this State and that his failure to do so proximately resulted
in the damage suffered by the Johnson/Rolison plaintiffs. The
Johnson/Rolison plaintiffs contend that substantial evidence
exists demonstrating that Johnson acted consistently with his
obligations under the applicable law.
A. Standard of Review
The standard of review for a ruling on a motion for a JML
is as follows:
"'When reviewing a ruling on a motion
for a JML, this Court uses the same
standard the trial court used initially in
deciding whether to grant or deny the
motion for a JML. Palm Harbor Homes, Inc.
v. Crawford, 689 So. 2d 3 (Ala. 1997).
Regarding questions of fact, the ultimate
question is whether the nonmovant has
presented sufficient evidence to allow the
case to be submitted to the jury for a
factual resolution. Carter v. Henderson,
598 So. 2d 1350 (Ala. 1992). The nonmovant
must have presented substantial evidence in
order to withstand a motion for a JML. See
§ 12-21-12, Ala. Code 1975; West v.
Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989). A reviewing
court must determine whether the party who
bears the burden of proof has produced
substantial evidence creating a factual
dispute requiring resolution by the jury.
Carter, 598 So. 2d at 1353. In reviewing a
ruling on a motion for a JML, this Court
views the evidence in the light most
33
1090011
favorable to the nonmovant and entertains
such reasonable inferences as the jury
would have been free to draw. Id. Regarding
a question of law, however, this Court
indulges no presumption of correctness as
to the trial court's ruling. Ricwil, Inc.
v. S.L. Pappas & Co., 599 So. 2d 1126 (Ala.
1992).'
"Waddell & Reed, Inc. v. United Investors Life Ins.
Co., 875 So. 2d 1143, 1152 (Ala. 2003)."
CSX Transp., Inc. v. Miller, 46 So. 3d 434, 450-51 (Ala.
2010).
B. Contributory Negligence
"Contributory negligence is an affirmative and
complete defense to a claim based on negligence. In
order to establish contributory negligence, the
defendant bears the burden of proving that the
plaintiff
1)
had
knowledge
of
the
dangerous
condition; 2) had an appreciation of the danger
under the surrounding circumstances; and 3) failed
to exercise reasonable care, by placing himself in
the way of danger."
Ridgeway v. CSX Transp., Inc., 723 So. 2d 600, 606 (Ala.
1998).
The issue of contributory negligence is generally one
for a jury to resolve.
Duke,
598
So.
2d
Id.
856,
See also Savage Indus., Inc. v.
859
(Ala.
1992)
("The
issue
of
contributory negligence cannot be determined as a matter of
law where different inferences and conclusions may reasonably
be drawn from the evidence.").
34
1090011
Section 32-5A-150, Ala. Code 1975, provides, in pertinent
part:
"(a) Whenever any person driving a vehicle
approaches a railroad grade crossing under any of
the circumstances stated in this section, the driver
of such vehicle shall stop within 50 feet but not
less than 15 feet from the nearest rail of such
railroad, and shall not proceed until he can do so
safely. The foregoing requirements shall apply when:
"....
"(3) A railroad train approaching
within approximately 1,500 feet of the
highway crossing emits a signal audible
from such distance and such railroad train,
by reason of its speed or nearness to such
crossing, is an immediate hazard;
"(4) An approaching railroad train is
plainly
visible
and
is
in
hazardous
proximity to such crossing."
The well established doctrine of "stop, look, and listen" set
forth in § 32-5A-150 was discussed at length by this Court in
Ridegeway, supra:
"The 'stop, look, and listen' doctrine set out in §
32-5A-150 is also firmly rooted in our caselaw. See,
e.g., Southern Ry. v. Randle, 221 Ala. 435, 438, 128
So. 894, 897 (1930):
"'It is established by our decisions
that one who is about to cross a railroad
track must stop so near to the track, and
his survey by sight and sound must so
immediately precede his effort to cross
over it, as to preclude the injection of an
35
1090011
element of danger from approaching trains
into the situation between the time he
stopped, looked, and listened and his
attempt to proceed across the track. The
law thus imposes a continuing duty to see
that the way is clear before attempting to
cross. Hines v. Cooper, 205 Ala. 70, 88 So.
133 [(1920)]; Central of Georgia Railway
Company v. Foshee[Forshee], 125 Ala. 199,
27
So.
1006
[(1899)].
In
Cunningham
Hardware Co. v. Louisville & N.R. Co., 209
Ala. 327, 333, 96 So. 358, 364 [(1923)], it
is said of "what is such reasonable
precaution," as follows:
"'"What is such reasonable
precaution was dealt with in
Southern Ry. Co. v. Irvin, 191
Ala. 622, 68 So. 139 [(1915)],
where, adverting to the rule of
Central of Ga. Ry. Co. v. Hyatt,
151
Ala.
355,
43
So.
867
[(1907)], it is said:
"'"'It is the duty
of the person intending
to cross a railway to
stop, look, and listen
for approaching trains;
and this use of the
senses
must
be
made
within such nearness to
the
track
and
under
such circumstances as
will afford the highly
important
information
to
the
traveler
and
operate
as
the
precaution
the
most
ordinary prudence, in
such
circumstances,
suggests; and the duty,
36
1090011
unless
excused
as
i n d i c a t e d ,
i s
continuing at least to
the extent of excluding
the
injection
of
an
element of danger into
the situation between
the
time
he
last
stopped,
looked,
and
listened and the time
he enters the zone of
danger a moving train
would create.'"'
"....
"Also deeply rooted in Alabama law is the rule
that a person who fails to stop, look, and listen
before crossing a railroad track is, in the absence
of special circumstances, contributorily negligent
as a matter of law. In Lambeth v. Gulf, Mobile &
Ohio R.R., 273 Ala. 387, 389, 141 So.2d 170, 172
(1962), Justice Simpson, writing for this Court,
stated:
"'The general rule, and governing here
to sustain the ruling of the trial court,
is that where a motorist fails to "Stop,
Look & Listen" before crossing a railroad
track, and he thereby runs into or collides
with a train on its track at a public
crossing, he is guilty of contributory
negligence as a matter of law and his
negligence will be treated as the sole
proximate cause of his injuries.
Coe v.
Louisville & N.R. Co., 272 Ala. 115, 130
So. 2d 32 [(1961)]; Watson v. Birmingham
Southern R. Co., 259 Ala. 364, 66 So. 2d
903 [(1953)]; Johnston v. Southern Ry. Co.,
236 Ala. 184, 181 So. 253 [(1938)];
Southern Ry. Co. v. Lambert, 230 Ala. 162,
160
So.
262
[(1935)];
St.
Louis-San
37
1090011
Francisco Ry. Co. v. Guthrie, 216 Ala. 613,
114 So. 215, 217, 56 A.L.R. 1110 [(1927)];
Louisville & N.R. Co. v. Outlaw, 36 Ala.
App. 278, 60 So. 2d 367 [(1951)], cert.
den., 257 Ala. 585, 60 So.
2d 377
[(1952)].'
"And in Callaway v. Adams, 252 Ala. 136, 142, 40 So.
2d 73, 77-78 (1949), this Court wrote:
"'The contention that there was error
in refusing the general affirmative charge
as to the contributory negligence of
plaintiff is sought to be sustained by the
generally stated rule of absolute duty at
any railroad crossing where cars and
locomotives are liable to be moving of
anyone attempting to cross the railroad
track to stop, look and listen, and a
denial of recovery as for simple initial
negligence of the railroad if the failure
to discharge such duty proximately caused
the injury. Atlantic Coast Line R. Co. v.
Jones, 202 Ala. 222, 80 So. 44 [(1918)];
Johnston v. Southern [Ry.] Co., 236 Ala.
184, 181 So. 253 [(1938)].
"'The doctrine is rested on the duty
of the traveler to keep a continuous
lookout
as
he
approaches
a
railroad
crossing until he can see that no train is
dangerously near. So, when the undisputed
facts disclose that by a proper lookout he
could not fail to see the train, he cannot
acquit himself of contributory negligence
by saying he looked and did not see it.
"'But it cannot be affirmed as a
matter of law in every case and under all
circumstances that there is an absolute
duty to stop, look and listen before a
traveler may go upon a railroad crossing,
38
1090011
as where one, in the exercise of reasonable
care, did not know of the crossing. "What
is, or is not, ordinary care often depends
upon the facts of the particular case. The
rule, 'stop, look, and listen,' is not
arbitrary or invariable as to time and
place. It may depend in some measure upon
the familiarity of the one passing, with
the place of crossing ...". Louisville &
N.R. Co. v. Williams, 172 Ala. 560, 578, 55
So. 218, 223 [(1911)].
"'Thus
the
principle
has
been
developed that the arbitrary rule of stop,
look and listen is affected by whether or
not the plaintiff knew or by reasonable
care could have known he was about to cross
the railroad tracks. Sloss-Sheffield Steel
& Iron Co. v. Willingham, 243 Ala. 352, 10
So. 2d 19 [(1942)]....
"'....'
"....
"Thus, it remains the law in this state that
when a motorist, in violation of § 32-5A-150, fails
to stop, look, and listen before crossing a railroad
track and that failure results in injury or death
caused by a collision with a passing train, the
motorist is guilty of contributory negligence as a
matter of law, unless special circumstances existing
at the crossing suggest that even by keeping a
proper lookout he could not have been aware of the
presence of the railroad crossing or of the danger
presented by that crossing. See Lambeth v. Gulf,
Mobile & Ohio R.R., supra, and the cases cited
therein; Callaway v. Adams, supra, and the cases
cited
therein;
and
Norfolk
Southern
R.R.
v.
Thompson, [679 So. 2d 689 (Ala. 1996)]; see also
Louisville & N.R.R. v. Williams, 370 F.2d 839 (5th
Cir. 1966) (citing a number of Alabama cases
39
1090011
recognizing both the general rule that it is
contributory negligence as a matter of law for a
motorist to fail to stop, look, and listen before
crossing a railroad track and the exception to that
rule that may result from an unusually dangerous
crossing);
National
Railroad
Passenger
Corp.,
('Amtrak') v. H & P, Inc., 949 F. Supp. 1556 (M.D.
Ala. 1996) (holding under Alabama law that the
driver of a truck was contributorily negligent as a
matter of law in failing to yield the right-of-way
to an approaching train)."
Ridgeway, 723 So. 2d at 604-08.
The
undisputed
evidence
indicates
that
Johnson
was
familiar with the crossing –- he lived in the area of the
crossing and traveled over it on a daily basis -- and that the
crossing was active with trains traveling both northbound and
southbound along the track at the crossing.
Johnson also
testified that he was aware that boxcars were parked on the
sidetrack and that the boxcars
south of the track.
could obstruct his view to the
Accordingly,
we conclude that Norfolk
Southern established as a matter of law that
aware
of
the
Walker
Springs
Road
crossing
Johnson was
and
that
he
understood or should have understood the danger presented by
the
crossing.
Ridgeway,
supra.
We
next
must
determine
whether Norfolk Southern established as a matter of law that
Johnson failed to exercise reasonable care, i.e., that he
40
1090011
failed to stop, look, and listen, when he attempted to cross
the track at the Walker Springs Road crossing.
The evidence indicates that Johnson came to a complete
stop with the front of the log truck approximately two feet
behind the crossbuck sign, which was located 24 feet from the
track.
From the point at which Johnson stopped behind the
crossbuck sign, his view to the south was obscured by the
boxcars on the sidetrack.
Johnson looked to his left (north)
and to his right (south) and listened "real good" but did not
hear or see a train.
He then began to pull forward slowly.
Johnson stated that, as he was pulling forward, he looked to
his left and then straight ahead and that when he looked back
to his right he saw the lights of the train and could not stop
the log truck before it rolled onto the track.
When questioned on cross-examination as to why he did not
pull past the crossbuck a short distance to gain a better view
of the track to the south, Johnson stated that "by the time I
get to where I can peek around the corner of that boxcar, my
truck ... the nose of my truck would be up on that track."
This testimony is belied by the fact that the photographic
evidence presented by Norfolk Southern clearly demonstrates
that
Johnson
had
sufficient
space
41
to
pull
the
log
truck
1090011
forward of the crossbuck without entering the zone of danger
presented by the track and to ascertain whether a train was
approaching from the south.
Johnson himself admitted that as
he was easing forward he first looked to his left and then
straight ahead and that he did not look back to his right
until he was already on the track and that he then saw the
lights on the train.
As discussed in Ridgeway, supra, and the
cases cited therein, Johnson had a continuing duty to keep a
proper lookout from the time he first stopped at the crossbuck
sign until he crossed the track.
He cannot acquit himself of
contributory negligence by stating that he could not see what
was there to be seen.
Further, Johnson's testimony that, "by
the time I get to where I can peek around the corner of that
boxcar, my truck ... the nose of my truck would be up on that
track," does not create a conflict in the evidence where the
photographic evidence indicates otherwise.
Ridgeway, supra;
Serio v. Merrell, Inc., 941 So. 2d 960 (Ala. 2006).
See also
National R.R. Passenger Corp. ("AmTrak") v. H & P, Inc., 949
F.
Supp.
1556,
1564
(M.D.
Ala.
1996)(entering
a
summary
judgment for railroad in crossing-collision case, stating that
"[plaintiff's] statement that he neither saw an approaching
42
1090011
train,
nor
heard
the
train's
whistle
or
bell,
is
not
sufficient, given the photographic evidence to the contrary,
to create a conflict in the evidence"); Atlantic Coast Line
R.R. v. Barganier, 258 Ala. 94, 101, 61 So.2d 35, 42 (1952)
("[p]laintiff's
testimony
that
he
stopped,
looked,
and
listened, in the face of the circumstances that if he had
stopped, looked, and listened he could have either heard or
seen the train which was moving toward the crossing and near
thereto
when
the
plaintiff
drove
his
automobile
on
the
railroad track, does not constitute a conflict in the evidence
...."); Southern Ry. v. Terry, 40 Ala. App. 186, 190, 109 So.
2d 913, 916 (1958), reversed on other grounds, 268 Ala. 510,
109
So.
2d
919
(1959)
("Had
Gibson
stopped,
looked
and
listened, he could have seen or heard the train approaching
when he drove the tractor onto the track. His testimony to the
contrary,
in
view
of
the
photographic
evidence
showing
otherwise, constitutes no conflict in this regard."); Atlantic
Coast Line R.R. v. Griffith, 40 Ala. App. 364, 368, 113 So. 2d
788,
792
(1959)("[W]e
are
of
opinion
after
viewing
the
photographs introduced in evidence showing the tracks and the
location of the box cars standing thereon at the time, that
43
1090011
plaintiff's testimony that he stopped, looked and listened
before going upon the tracks, creates no material conflict in
the evidence.").
The physical facts depicted in the photographs presented
by Norfolk Southern are further substantiated by the testimony
of Karen Brooks and Trooper Linder.
driver,
drove
over
the
crossing
Brooks, the school-bus
approximately
45
minutes
before the accident in a school bus traveling in the same
direction Johnson was traveling at the time of the accident.
Brooks testified that she stopped the school bus approximately
20 feet from the near rail (6 feet closer to the track than
Johnson stated that he stopped) and stated that she saw the
boxcars on the sidetrack.
Brooks testified that the boxcars
did not obstruct her view of the track to the south, stating
that she could see a "long
sidetrack.
the
way" past the boxcars on the
Trooper Linder, the state trooper who investigated
accident
and
who
also
is
a
certified
accident
reconstructionist, opined that Johnson's view of the oncoming
train was not obstructed by the boxcars on the sidetrack and
that Johnson had sufficient time and space to see the oncoming
train and then to yield to it.
44
1090011
The
Southern's
Johnson/Rolison
plaintiffs
sight-distance
evidence
photographs in several regards.
presented
their
own
as
Norfolk
depicted
in
the
They first argue that they
photographic
obstructed view to the south.
challenge
evidence
that
shows
the
We note that those photographs
were taken at a point behind the crossbuck and farther away
from the crossing.
That there was some point at or behind the
crossbuck -- some distance away from the track –- where a
motorist's view to the south was obstructed by the boxcars on
the sidetrack is not disputed.
the
photographic
evidence
However, as discussed above,
presented
by
Norfolk
Southern
indicates that Johnson had sufficient space to pull his log
truck beyond the crossbuck and to obtain an unobstructed view
to the south of a northbound train, all the while remaining
clear of the zone of danger.
The
Johnson/Rolison
plaintiffs
next
contend
that
eyewitnesses to the accident, Deputy Robinson and Barsha Hunt,
both
testified
that
the
Norfolk
Southern
reenactment
photographs did not accurately depict the view an eastbound
motorist had of the track to the south of the crossing on the
day of the accident.
Hunt testified that the boxcars in one
45
1090011
of the photographs shown to her appear to be "further back"
than the boxcars on the sidetrack the day of the accident.
Additionally, both Deputy Robinson and Hunt testified that
when boxcars were parked on the sidetrack a motorist would
almost have to pull up on to the track in order to obtain an
unobstructed
plaintiffs'
view
to
the
arguments
based
south.
upon
The
this
Johnson/Rolison
testimony
fail
for
several reasons.
We first note that both Deputy Robinson and Hunt were in
a line of traffic behind Johnson on the day of the accident
and did not have the same point of view to the south as did
Johnson
at
the
time
of,
and
just
before,
the
accident.
Although both Deputy Robinson and Hunt testified that when
boxcars were parked on the sidetrack a motorist would almost
have
to
pull
up
onto
the
track
in
order
to
obtain
an
unobstructed view to the south, neither offered testimony as
to a motorist's view to the south at the time of the accident.
On the prior occasions referenced by Deputy Robinson and Hunt
the boxcars could have been parked on the sidetrack closer to
the crossing than the 200 feet measured at the time of the
accident, thus requiring a motorist to pull closer to the
46
1090011
track in order to obtain an unobstructed view to the south.
Deputy Robinson expressly stated on cross-examination that he
did
not
know
crossing
at
what
the
others
time
of
could
the
see
to
accident.
the
south
of
the
Finally,
of
the
multitude of photographs presented at trial, Hunt could point
to only one photograph and testify that the boxcars on the
sidetrack appeared to be "further back" than were the boxcars
on the day of the accident.
As for the reenactment photographs, the Johnson/Rolison
plaintiffs state that the tractor used in the reenactment was
dissimilar from the tractor being driven by Johnson on the day
of the accident.
W900-L
("L"
accident.
Johnson was driving a Kenworth brand model
stands
for
longed-nosed)
on
the
day
of
the
The reenactment was performed using a Freightliner
brand tractor.
The Johnson/Rolison plaintiffs argue in their
brief that the reenactment photographs appear to place the
tractor
22
inches closer to the track than where Johnson
actually was on the day of the accident, thus giving the
photographer of the reenactment photographs a better view of
the track to the south.
However, the purported distance of 22
inches is simply not supported by the evidence, because the
47
1090011
Kenworth brand tractor model W900-L measures 130 inches from
the front bumper to the rear of the cab and the Freightliner
brand tractor used in the reenactment
measured 120 inches
from front bumper to the rear of the cab, a difference of only
10 inches.
Notwithstanding the difference in length of the
two tractors, we believe the more relevant comparison between
the two tractors is the distance from the front bumper to the
rear of the driver's door on each tractor, which is exactly
the same on both tractors, i.e., 108 inches.
based on
this
The conclusion,
comparison, is that Johnson's eyes and the
photographer's eyes were the same approximate distance from
the track even though Johnson's Kenworth tractor was longer,
giving Johnson the same relative point of view to the south as
is depicted in the reenactment photographs. 13
13
Despite the contentions in the Chief Justice's dissent,
Johnson's testimony and the testimony of the other witnesses
do not create a question of fact for the jury. There is no
dispute that Johnson stopped at the crossbuck and that he did
not have a clear line of sight to the south at the point where
he stopped behind the crossbuck. However, as discussed above,
Johnson's duty to "stop, look, and listen" was a continuing
duty, and he cannot create a question of fact by simply
stating that his view of the track to the south was obscured
in the face of clear photographic evidence indicating that he
had sufficient space to pull his truck forward of the
crossbuck in order to obtain a clear line of sight. As for
the dissent's reliance upon the other witnesses' testimony for
the creation of a question of fact, none of the witnesses had
48
1090011
C. Special Circumstances
This Court stated in Ridgeway:
"[W]hen a motorist, in violation of § 32-5A-150,
fails to stop, look, and listen before crossing a
railroad track and that failure results in injury or
death caused by a collision with a passing train,
the motorist is guilty of contributory negligence as
a matter of law, unless special circumstances
existing at the crossing suggest that even by
keeping a proper lookout he could not have been
aware of the presence of the railroad crossing or of
the danger presented by that crossing."
723 So. 2d at 607.
The Johnson/Rolison plaintiffs argue that
the boxcars located on the sidetrack constituted a special
circumstance
that
prevented
Johnson
from
discovering
the
danger at the crossing despite his keeping a proper lookout.
As discussed above, the photographic evidence presented by
Norfolk Southern demonstrates that had Johnson satisfied his
continuing duty to keep a proper lookout as he pulled the log
the same point of view of the track to the south as did
Johnson, because the witnesses were in a line of traffic
behind Johnson. No witness offered testimony as to the point
of view to the south at the time of the accident. In fact,
Deputy Robinson expressly stated on cross-examination that he
did not know what another motorist could see to the south of
the track at the time of the accident. Finally, the dissent
focuses only on the reenactment photographs and the challenges
to their accuracy, completely ignoring the photographs taken
the day following the accident and prior to the removal of
boxcars from the sidetrack, depicting sufficient space in
which Johnson could have pulled forward of the crossbuck and
obtained a clear view to the south.
49
1090011
truck forward of the crossbuck he could have discovered the
danger presented by the approaching train.
Accordingly, we
find that no special circumstances, as discussed in Ridgeway,
supra, exist in this case and that any failure in this regard
did not proximately cause the collision.
D. Speed and Horn Claims
The jury rejected the Johnson/Rolison plaintiffs' claims
to the extent they were based on the speed of the train and
the alleged failure of its occupants to sound the train's
horn.
The
jury
returned
a
verdict
in
favor
of
engineer
Summers on the Johnson/Rolison plaintiffs' claims against him.
This Court can infer from the jury's verdict in favor of
Summers that the horn was properly sounded and the speed of
the train was not excessive.
See Lousiville & N. R.R. v.
Garrett, 378 So. 2d 668, 676 (Ala. 1979)(jury entered verdict
in favor of locomotive engineer in collision-crossing case,
and this Court held that "[s]ince the jury exonerated [the
engineer]
of
any
negligence,
it
can
be
inferred
properly sounded the whistle and rang the bell").
that
he
The verdict
in favor of Summers is supported by substantial evidence; both
Summers and Grandison testified that the train's horn was
50
1090011
being sounded and that it was traveling within the speed limit
as
it
approached
the
Walker
Springs
Road
crossing.
Additionally -- and telling -- is the fact that the data
retrieved from the train's black box also indicates that the
train was within the speed limit and that the horn was being
sounded as the train approached the crossing.
E. Conclusion on Negligence Claims
After carefully reviewing the record in this case, we
conclude that Johnson failed to exercise reasonable care,
i.e., that he failed to properly stop, look, and listen, as
required by law when he attempted to cross the Walker Springs
Road crossing and that he was contributorily negligent as a
matter of law.
Accordingly, the trial court erred in denying
Norfolk Southern's motion for a JML and in submitting the
Johnson/Rolison plaintiffs' negligence claims to the jury.
II. Wantonness
Norfolk
plaintiffs
Southern
failed
to
contends
present
that
the
substantial
Johnson/Rolison
evidence
of
any
wantonness on its part and that the trial court erred in
denying its motions for a JML and submitting the wantonness
claims to the jury.
51
1090011
"Wantonness is conduct 'carried on with a
reckless or conscious disregard of the rights or
safety of others.' Ala. Code 1975, § 6-11-20(b)(3).
Specifically, wantonness involves the conscious
doing of some act, or the omission of some duty,
under knowledge of existing conditions and while
conscious that from the doing of such act or
omission of such duty injury will likely or probably
result. Before a party can be said to be guilty of
wanton conduct, it must be shown that, with reckless
indifference to the consequences, he consciously and
intentionally did some wrongful act or omitted some
known duty that produced the injury. Hamme v. CSX
Transp., Inc., 621 So. 2d 281 (Ala. 1993)."
Ridgeway, 723 So. 2d at 608.
This Court has stated:
"'"'Wantonness is not merely a higher degree of
culpability
than
negligence.
Negligence
and
wantonness, plainly and simply, are qualitatively
different tort concepts of actionable culpability.
Implicit in wanton, willful, or reckless misconduct
is an acting, with knowledge of danger, or with
consciousness, that the doing or not doing of some
act will likely result in injury ....
"'"'Negligence is usually characterized as an
inattention, thoughtlessness, or heedlessness, a
lack
of
due
care;
whereas
wantonness
is
characterized as ... a conscious ... act. "Simple
negligence is the inadvertent omission of duty; and
wanton or willful misconduct is characterized as
such by the state of mind with which the act or
omission is done or omitted." McNeil v. Munson S.S.
Lines,
184
Ala.
420,
[423],
63
So.
992
(1913)....'"'"
Ex
parte
Tolbert
Essary,
v.
992
Tolbert,
So.
903
2d
So.
5,
2d
9-10
103,
(Ala.
114-15
quoting in turn other cases) (emphasis omitted).
52
2007)(quoting
(Ala.
2004),
To establish
1090011
a claim of wantonness, "the plaintiff must prove that the
defendant, with reckless indifference to the consequences,
consciously and intentionally did some wrongful act or omitted
some known duty. To be actionable, that act or omission must
proximately
complains."
1994).
cause
the
injury
of
which
the
plaintiff
Martin v. Arnold, 643 So. 2d 564, 567 (Ala.
Proximate
cause
is
an
essential
negligence claims and wantonness claims.
element
of
both
Gooden v. City of
Talladega, 966 So. 2d 232 (Ala. 2007).
As set forth above:
"'The general rule, and governing here to
sustain the ruling of the trial court, is that where
a motorist fails to "Stop, Look & Listen" before
crossing a railroad track, and he thereby runs into
or collides with a train on its track at a public
crossing, he is guilty of contributory negligence as
a matter of law and his negligence will be treated
as the sole proximate cause of his injuries.'"
Ridgeway, 723 So. 2d at 605 (quoting Lambeth v. Gulf Mobile &
Ohio R.R., 273 Ala. 387, 389, 141 So. 2d 170, 172 (1962))
(emphasis added).
Although the Johnson/Rolison plaintiffs
contend that the accident in this case was caused by the
boxcars on the sidetrack obstructing Johnson's view to the
south, the failure of the train crew to sound the horn, and
the excessive speed of the train, the evidence, as discussed
53
1090011
above, indicates that Johnson failed to properly "stop, look,
and listen" as required by law before he attempted to cross
the railroad track.
Johnson's negligence in failing to "stop,
look, and listen" is treated as the sole proximate cause of
the Johnson/Rolison plaintiffs' injuries. Id.
Accordingly,
any alleged wantonness on the part of Norfolk Southern could
not have been the proximate cause of the accident, and Norfolk
Southern was entitled to a JML on the wantonness claims.
Middaugh
v.
City
1993)(affirming
a
wantonness
claims
motorist's
failure
of
Montgomery,
summary
where
to
judgment
the
yield
621
evidence
at
So.
on
2d
275
(Ala.
negligence
indicated
intersection
was
See
and
that
the
the
sole
proximate cause of the accident); and Borden v. CSX Transp.,
Inc., 843 F. Supp. 1410, 1424 n.9 (M.D. Ala. 1993) (affirming
a summary judgment on negligence and wantonness claims in
railroad-crossing case where plaintiff's failure to "stop,
look, and listen" at crossing was the sole proximate cause of
the accident and stating "if a Defendant in the instant case
had been wanton or negligent, such wantonness or negligence
could
not
have
been
a
proximate
accident").
54
cause
of
the
subject
1090011
III. Norfolk Southern's Property-Damage Claim
Norfolk
Southern
asserted
negligence
and
wantonness
claims against Johnson, Rolison, and Rolison Trucking alleging
that Johnson, as an employee of Rolison and Rolison Trucking,
negligently and wantonly operated the log truck so as to cause
it to collide with a train being operated by Norfolk Southern,
causing damage to the train.
The jury returned verdicts in
favor of Johnson, Rolison, and Rolison Trucking on Norfolk
Southern's property-damage claims.
Norfolk Southern filed
postjudment motions to alter, amend, or vacate that judgment,
or for a new trial.
Because we have determined that Johnson's
negligence in failing to properly "stop, look, and listen"
before crossing the railroad track was the sole proximate
cause of the accident, the judgment entered on the verdict in
favor of Johnson, Rolison, and Rolison Trucking on Norfolk
Southern's
property-damage
claims
must
be
reversed.
Any
motion to dismiss based on Norfolk Southern's prior pending
federal action should be addressed by the parties and the
trial court on remand.
Conclusion
55
1090011
We
reverse
the
judgment
entered
in
favor
of
the
Johnson/Rolison plaintiffs on their negligence and wantonness
claims against Norfolk Southern.
We also reverse the judgment
in favor of Johnson, Rolison, and Rolison Trucking on Norfolk
Southern's claims seeking recovery for damage to its property.
Because we are reversing the judgment on the grounds addressed
above,
we
pretermit
discussion
of
the
remaining
issues
presented.
REVERSED AND REMANDED.
Woodall, Stuart, Parker, Shaw, and Main, JJ., concur.
Murdock, J., concurs in the result.
Cobb, C.J., dissents.
56
1090011
MURDOCK, Justice (concurring in the result).
Based on my review of other photographic-evidence cases,
I am in agreement with the main opinion's implicit conclusions
that, based on the particular evidence in this case, the jury
could not reasonably have found that Ronny P. Johnson was not
contributorily negligent and that the jury's apparent verdict
otherwise was plainly and palpably wrong.
Hall, 567 So. 2d 1338, 1341 (Ala. 1990).
concur in the result.
57
See Christiansen v.
On this basis, I
1090011
COBB, Chief Justice (dissenting).
I respectfully dissent.
For all the discussion of facts
and law in the majority opinion, this case simply devolves to
the Court's substituting its opinion of what the evidence
showed for the jury's view, i.e., that Ronny P. Johnson's
testimony as to what occurred, corroborated as it was by other
witnesses at the scene of the accident, "is belied by the ...
photographic evidence presented by Norfolk Southern." ___ So.
3d at ___. The Court also improperly invades the province of
the
jury
when
it
proceeds
to
weigh
and
to
discard
testimony indicating that this photographic evidence
the
did not
accurately depict the circumstances of the crossing on the day
of the accident. ___ So. 3d at ___. Moreover, I believe that
the majority's reliance on Ridgeway v. CSX Transp., Inc., 723
So. 2d 600 (Ala. 1998), is misplaced.
In that case, both
eyewitnesses testified that the plaintiff did not stop at the
railroad crossing and the plaintiff did not maintain that she
did stop; her contention was that she was distracted by a
traffic signal beyond the railroad crossing.
In
this
case,
Johnson's
testimony
alone
constitutes
substantial evidence of his compliance with the duty to stop,
58
1090011
look, and listen.
to
support
Deputy Michael Robinson's testimony tends
Johnson's
testimony.
In
fact,
the
evidence
is
undisputed that Johnson stopped his fully loaded log truck at
the railroad crossbuck at the site of the accident and then
eased
his
truck
forward
in
an
attempt
to
see
around
the
boxcars parked to the south of the crossing on a sidetrack.
In addition to Johnson's testimony that his view of the tracks
to the south was obstructed by the boxcars until the nose of
his truck was on the tracks, three other witnesses testified
that, on the day of the accident, their automobiles, not a
much longer tractor-trailer, would have had to have been very
close to the rails in order for the driver to see around the
boxcars.
Conflicting testimony by the school-bus driver and
the accident reconstructionist present issues of fact for the
jury, as does the dimensional accuracy of the reenactment
photographs.
Johnson
and
other
witnesses
viewing
the
photographs testified that the photographs did not accurately
reflect
the
situation
Johnson
faced
on
the
day
accident.
As this Court has stated many times before:
"'[A] jury verdict is presumed to
correct,
and
that
presumption
59
be
is
of
the
1090011
strengthened by the trial court's denial of
a motion for a new trial. Cobb v. MacMillan
Bloedel, Inc., 604 So. 2d 344 (Ala. 1992).
In reviewing a jury verdict, an appellate
court must consider the evidence in the
light most favorable to the prevailing
party, and it will set aside the verdict
only if it is plainly and palpably wrong.
Id.'"
Line v. Ventura, 38 So. 3d 1, 8 (Ala. 2009)(quoting Delchamps,
Inc. v. Bryant, 738 So. 2d 824, 831 (Ala. 1999)).
Equally
well settled is the principle that an appellate court may not
substitute itself for the trier of fact -- here the jury -- on
matters of witness credibility.
"In this jurisdiction it is a general rule of law,
firmly settled, long maintained and well understood by
the legal profession, that within the province of
appellate review we are not expected to determine
whether or not witnesses are deposing to the truth when
they give evidence in the trial of a cause in the nisi
prius court. This is a prerogative exclusively for the
jury or the trial judge. The reason for this rule is
evident.
"... We are confronted with a record in which it is
disclosed that one group of witnesses related a state of
facts and another group gave an entirely different and
contrary description of the same object. This results in
an irreconcilable conflict in the evidence, and only the
jury was empowered to solve the factual problem. We
would do serious violence to the rule by which we are
guided if we should assume the province and prerogative
of the jury. Mobile & Ohio R. Co. v. Barber, 2 Ala. App.
507, 56 So. 858 [(1911)]; Montgomery City Lines v.
Hawes, 31 Ala. App. 564, 20 So. 2d 536 [(1944)]; William
E. Harden, Inc. v. Harden, 29 Ala. App. 411, 197 So. 94
60
1090011
[(1940)]; National Life & Accident Ins. Co. v. Saffold,
225 Ala. 664, 144 So. 816 [(1932)]; U.S. Cast Iron Pipe
& Foundry Co. v. Granger, 172 Ala. 546, 55 So. 244
[(1911)]."
Birmingham Elec. Co. v. Linn, 33 Ala. App. 486, 488-89, 34 So.
2d 715, 717 (1948).
See also Greater Friendship A.M.E. Church
v. Spann, 336 So. 2d 1087 (Ala. 1976); Ex parte Shoaf, 186
Ala. 394, 64 So. 615 (1914); and
Rozell v. Childers, 888 So.
2d 1244 (Ala. Civ. App. 2004).
I do not believe that the
reenactment
accuracy
as
photographs
they
were,
in
are
this
case,
sufficient
challenged
to
as
overcome
to
this
standard or to permit this Court to substitute its view of the
evidence for that of the jury's.
61
Accordingly, I dissent.
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