Opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 19, 2007 Session

TENNIE MARTIN and ROYA MITCHELL, Co-Personal Representatives of

the Estate of KATHRYN L. MARTIN, deceased, and TENNIE MARTIN and

ROYA MITCHELL, Individually, as next-of-kin and heirs-at-law of

KATHRYN L. MARTIN, deceased, et al., v. NORFOLK SOUTHERN

RAILWAY COMPANY and ANTHONY D. WORLEY

Direct Appeal from the Circuit Court for Anderson County

No. A2LA0325 Hon. Donald R. Elledge, Circuit Judge

No. E2006-01021-COA-R3-CV - FILED JULY 6, 2007

Decedent’s vehicle was struck by defendants’ train at a railroad crossing, resulting in decedent’s

death. The Trial Court granted Defendants’ Summary Judgment. The Estate has appealed. We

affirm the Trial Court’s Judgment.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,

J., joined, and CHARLES D. SUSANO , JR., J., dissented and filed an opinion.

Donald Capparella and Amy J. Jarrar, Nashville, Tennessee, and J.D. Lee, Knoxville, Tennessee,

for appellants.

John W. Baker, Jr., and Emily H. Thompson, Knoxville, Tennessee, for appellees.

OPINION

In this wrongful death action, plaintiffs alleged, that on May 12, 2002, the deceased

came to a railroad crossing on Marlow Circle in Clinton and stopped to look, then proceeded across,

when her vehicle was struck by a train operated by Anthony Worley. Plaintiffs charged that Worley

failed to travel at a safe speed, failed to sound adequate warning upon approaching the crossing, and

failed to stop the train when he knew a collision was imminent.

Plaintiffs asserted that Norfolk Southern (“NSR”) was guilty of failing to install lights

and gates at the crossing, allowing brush and trees to grow in the right-of-way, obstructing visibility,

and allowing its employees to fail to give whistle warnings, allowing its trains to be operated at

excessive speeds, failing to train its employees regarding safety, etc. Defendants filed an Answer

denying all liability, and asserting that decedent was completely at fault because she drove her

vehicle directly into the path of the train, which they asserted was highly visible if she had only

looked, and that decedent’s negligence was the sole cause of the accident.

Ultimately, a Motion for Summary Judgment was filed by defendants, charging that

deceased was at least 50% at fault for the accident, as she failed “to take the opportunity to observe

the obvious presence of the train”.

Attached to the Motion were excerpts from the deposition of Danny Martin, the

conductor of the train, who testified that when approaching the crossing in question from the south,

in the train, one could see the crossing for a good distance, and definitely one could see it from the

whistle board. He testified that he went to the crossing after the accident and observed that a

motorist could see down the track, probably as far as the operator of the train could. He testified that

he saw decedent’s truck bumper and hood before the collision, from about 400 feet away, and it was

stopped. He said he saw the vehicle just as he came around the curve and entered the straightaway,

and there were no obstructions to his visibility of the vehicle. He concluded that a motorist would

have at least 1000 feet of sight distance from the crossing.

He testified that when he first saw decedent’s vehicle, she had stopped short of the

storage track, and he could see her hood and bumper from about 400 feet away, and that he told

Worley there was a vehicle at the crossing, but he saw no danger in that she had stopped before the

track. He saw her vehicle move and then stop again, just across the storage track, and that just as

they got to the crossing, he saw the vehicle start to move again, but “by that time we were already

at impact.” Further that the train, at the time of impact, was traveling 32-33 miles per hour.

Defendant also attached excerpts from the deposition of Charles Manning, Ph.D., who

testified that he had gone to the crossing in question, and that when one got to within 15-20 feet of

the main rail, there was “tremendous” visibility, and one could see 900-1000 feet down the track.

He testified that he could hear a train coming for 29 seconds, and could hear the whistle blow from

beyond the whistle post. Further, that the decedent would have had 9 1/4 seconds of clear visibility

of the train within which to react.

Also attached to the Motion was the deposition of Andrew Worley, and he testified

that it was his duty to watch for obstructions on the track, but a vehicle sitting at a crossing but not

on the track would not be considered an obstruction. He testified that the train was traveling at 32-33

miles per hour when the accident occurred, and that he had the train in idle. He was of the opinion

that one in the train could see the crossing from 900-1000 feet back. Worley explained that the train

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had 101 loaded cars, three engines on the head end, and two “pusher” engines. He testified he could

not see decedent’s vehicle from where he was sitting, because he could only see the left side of the

engine, and that he blew the whistle upon approach to the crossing, and that the train’s headlights

were on bright, and the ditch lights were on as well. Defendants also attached excerpts from the

deposition of Teddy Martin, decedent’s husband, and he testified that he had conversations with his

wife about the crossing being unsafe, and that he had also heard people talk about the fact that the

train did not blow its whistle when approaching the crossing on occasions before the accident. He

testified that when he rode with his wife and she crossed this crossing, she would stop, look both

ways, and roll down the window to look for a train, and that she had no problems with her hearing

he was aware of, and she was 45 years old when the accident occurred.

Excerpts from other depositions, as well as affidavits were attached to the Motion..

Among the affidavits was one of Dr. Charles Manning, who stated that for the train to have arrived

at the crossing less than one second later, the crew would have had to perceive the obstruction and

reacted 16 seconds earlier, and that decedent’s vehicle would not have been at the crossing, so it

could not have been perceived as a hazard.

Plaintiffs Responded to the Motion and filed an excerpt from the deposition of Cecil

Smith, the eyewitness, wherein he stated he did not hear the train blow its whistle on the day in

question. Plaintiffs attached certain corporate policies of the defendant railroad, and attached

excerpts from the deposition of Danny Martin, who testified he first saw decedent’s vehicle when

the train was about 400 feet away from the crossing. He testified he was sitting in the back seat so

that he could talk to the engineer because of the way the console was made, and the emergency brake

was closer to the engineer. He testified that if he were sitting in the front seat, he could have reached

the emergency brake more easily, but he would not have been able to see or talk to the engineer.

He testified that when he first saw decedent’s vehicle, she was stopped before the spur

track, then she moved forward and stopped before the main track. Martin testified that he “barely

caught” movement from decedent’s vehicle right before the collision. He testified there were no

obstructions that would have prevented the decedent from seeing the oncoming train. Plaintiffs also

attached the Statement of Train and Engine Crews which was completed by Martin on the day of the

accident, wherein he marked that decedent had “stopped, then proceeded” through the crossing. Also

attached was the drawing made by Martin, which shows where the decedent stopped her vehicle.

Other excerpts from depositions were also attached by the plaintiffs, as well as the

deposition of the plaintiffs’ expert, Dr. Kenneth Heathington, who testified that if a person stopped

15 feet from the main rail, they would have a good view down the track for a long distance, but that

no one should stop there because it would be illegal to do so. He testified that if a person stopped

their vehicle 15 feet from the storage track, they could only see 235 feet down the track. Dr.

Heathington said that at that point, the train would be about 4.9 seconds away. Dr. Heathington’s

affidavit was also attached, which that a motorist approaching from the direction of decedent would

be “essentially blind” in attempting to cross the track, and that trees and vegetation within the

railroad right-of-way obstructed the motorist’s vision such that the motorist would not have time to

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react and stop. He said that when decedent stopped short of the storage track, she could see for 300

feet, but the train was 400 feet away, and that once she left that position and moved forward, “the

time and space for Ms. Martin to perceive, interpret, evaluate, and perform relative to the

approaching train was not sufficient to avoid the collision. This is why it is so critical that an

adequate warning is provided the motor vehicle operator.”

The Trial Court entered an Order Granting the Motion for Summary Judgment, and

incorporated its Memorandum Opinion by reference.

In its Memorandum Opinion, the Trial Court found that Martin saw the deceased from

at least 400 feet away, and that deceased had the opportunity to see the train from at least 300 feet

away. The Trial Court stated that “as an old football player, that is the length of a football field.”

The Court said that the Gibbs and Worley testified that the train horn was blown, but whether it was

blown or not, the headlights and ditch lights were on and operating. The Court found the train was

traveling no more than 33 miles per hour, which was less than the speed limit for that area, and that

the proof showed the decedent stopped twice, and that it took it over a minute to stop the train once

the emergency brake was applied.

The court further noted that “some alleged factual disputes” would not defeat an

otherwise properly supported motion for summary judgment, that the evidence was undisputed that

decedent had the opportunity to see the train from at least a football field away, and that under Eaton

v. McLain, decedent would be found at least 50% at fault, because if she had remained stopped and

had looked, there was no question that she reasonably could have seen the train. The Court found

that decedent was familiar with the crossing, and knew she should stop and look and listen, but failed

to do so. Further the Court found the vegetation did not cause the accident, but the cause was

decedent’s failure to reasonably utilize her stop.

These issues are raised on appeal:

1. Whether the Trial Court erred in granting summary judgment to defendants,

when there were issues of fact regarding where and how many times Ms.

Martin stopped her vehicle, whether the train blew its whistle, whether her

sight was obstructed by trees/vegetation, and whether a sight line of 300 feet

was enough?

2. Whether the Trial Court erred in granting defendants’ motion in limine

regarding subsequent remedial measures?

The Supreme Court has set forth standards applicable when appellate courts are

reviewing a motion for summary judgment. See Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.

2004). In Blair, the Court said:

The standards governing an appellate court's review of a motion for summary

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judgment are well settled. Since our inquiry involves purely a question of law, no

presumption of correctness attaches to the lower court's judgment, and our task is

confined to reviewing the record to determine whether the requirements of Tennessee

Rule of Civil Procedure 56 have been met. Tennessee Rule of Civil Procedure 56.04

provides that summary judgment is appropriate where: 1) there is no genuine issue

with regard to the material facts relevant to the claim or defense contained in the

motion, and 2) the moving party is entitled to a judgment as a matter of law on the

undisputed facts.

***

When the party seeking summary judgment makes a properly supported motion, the

burden shifts to the nonmoving party to set forth specific facts establishing the

existence of disputed, material facts which must be resolved by the trier of fact.

To properly support its motion, the moving party must either affirmatively negate an

essential element of the non-moving party's claim or conclusively establish an

affirmative defense. If the moving party fails to negate a claimed basis for the suit,

the non-moving party's burden to produce evidence establishing the existence of a

genuine issue for trial is not triggered and the motion for summary judgment must

fail. If the moving party successfully negates a claimed basis for the action, the

non-moving party may not simply rest upon the pleadings, but must offer proof to

establish the existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763-764, 767 (citations omitted).

The Supreme Court has also instructed regarding assessing the evidence when dealing

with a motion for summary judgment:

The standards governing the assessment of evidence in the summary judgment

context are also well established. Courts must view the evidence in the light most

favorable to the nonmoving party and must also draw all reasonable inferences in the

nonmoving party's favor. Courts should grant a summary judgment only when both

the facts and the inferences to be drawn from the facts permit a reasonable person to

reach only one conclusion.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)(citations omitted).

We have also recognized:

The summary judgment process is designed to promote efficiency in the judicial

system, to enable the trial court to "pierce the pleadings to determine whether the

case justifies the time and expense of a trial." Courts at every level must exercise

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great care to not allow summary judgment to substitute for the trial of material

factual issues.

***

The concept of materiality is pivotal; the focus should be limited to only those

facts that are material. Material facts are those which are indispensable to the

resolution of a claim or defense.

Shearon v. Seaman, 198 S.W.3d 209, 213-214 (Tenn. Ct. App. 2005)(citations omitted).

On the facts of the issues raised by plaintiffs, they argue that the facts were disputed

and material, and thus precluded summary judgment.

As to materiality, the Supreme Court has explained:

A disputed fact is material if it must be decided in order to resolve the substantive

claim or defense at which the motion is directed. Therefore, when confronted with

a disputed fact, the court must examine the elements of the claim or defense at issue

in the motion to determine whether the resolution of that fact will effect the

disposition of any of those claims or defenses. By this process, courts and litigants

can ascertain which issues are dispositive of the case, thus rendering other disputed

facts immaterial.

Third, when the evidence or proof in support of or in opposition to a summary

judgment motion establishes a disputed fact, and the fact is material, as we have

defined that term, the court must then determine whether the disputed material fact

creates a genuine issue within the meaning of Rule 56.03. Proceeding from the

premise that Rule 56 is intended to avoid unnecessary trials, the test for a "genuine

issue" is whether a reasonable jury could legitimately resolve that fact in favor of one

side or the other. If the answer is yes, summary judgment is inappropriate; if the

answer is no, summary judgment is proper because a trial would be pointless as there

would be nothing for the jury to do and the judge need only apply the law to resolve

the case. In making this determination, the court is to view the evidence in a light

favorable to the nonmoving party and allow all reasonable inferences in his favor.

And, again, "genuine issue" as used in Rule 56.03 refers to disputed, material facts

and does not include mere legal conclusions to be drawn from those facts.

Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993).

In this case, there are disputed facts, and in order to create a genuine issue for trial,

such facts must be material. Plaintiffs argue that these disputed facts are material because, for

example, if, where, and how many times decedent stopped would affect how far she could ultimately

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see down the track, and how far decedent could see the train is material to the outcome of the case.

Viewing the evidence in the light most favorable to plaintiffs, however, even if decedent only

stopped once, or was “creeping” over the crossing, the undisputed evidence shows she would still

have had an unobstructed sight distance of at least 300 feet, as concluded by the plaintiffs’ expert,

Dr. Heathington. Dr. Heathington repeatedly testified via his deposition and his affidavit that

decedent would have a distance of at least 300 feet (a football field as he characterized it) within

which to see the train if she stopped at the storage track.1 While defendants’ expert and others

testified that decedent would have considerably greater sight distance, especially if she had stopped

between the storage track and the main track, as Conductor Martin testified she did, the undisputed

proof in the light most favorable to plaintiffs was that decedent’s sight distance would have been at

least 300 feet, and this is the basis of the Trial Court’s determination. Accordingly, there is no

genuine dispute of material fact regarding the decedent’s sight distance, nor how many times she

stopped, as the proof is undisputed that she could see for at least 300 feet down the track even if she

had only stopped at the storage track.

Plaintiffs also argue there is a genuine dispute of material fact regarding whether the

train blew its whistle. Plaintiffs correctly note that while the train engineer testified that he blew the

whistle, and two residents who lived nearby testified they heard it blow, there was a witness to the

accident, Cecil Smith, who testified that he did not hear it. Plaintiffs argue this fact is material

because if the train whistle did not blow, it is a violation of statute and shows that NSR is guilty of

negligence per se. Tenn. Code Ann. § 65-12-108, states:

In order to prevent accidents upon railroads, the following precautions shall be

observed:

(1) The officials having jurisdiction over every public road crossed by a railroad shall

place at each crossing a sign, marked as provided by § 65-11-105. The county

legislative body shall appropriate money to defray the expenses of the signs. The

failure of any engine driver to blow the whistle or ring the bell at any public crossing

so designated by either the railroad company or the public official shall constitute

negligence with the effect and all as set forth in § 65-12-109;

(2) On approaching every crossing so distinguished, the whistle or bell of the

locomotive shall be sounded at the distance of one fourth ( 1/4) of a mile from the

crossing, and at short intervals until the train has passed the crossing;

(3) Every railroad company shall keep the engineer, fireman, or some other person

upon the locomotive, always upon the lookout ahead; and when any person, animal,

or other obstruction appears upon the road, the alarm whistle shall be sounded, the

1

Dr. Heathington conceded that decedent would have a much greater sight distance had she

stopped past the storage track but short of the main track, but argued that to do so was unreasonably

dangerous.

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brakes put down, and every possible means employed to stop the train and prevent

an accident; and

(4) It is unlawful for any person operating a railroad to use road engines without

having them equipped with an electric light placed on the rear of the engine, tank, or

tender, which light shall be a bull's eye lens of not less than four inches (4"') in

diameter with a bulb of not less than sixty (60) watts power, so that such road engine

can be operated with safety when backing and the light so placed shall be burning

while any such engine may be used in any backing movement. Such lights shall be

operated at night; and any person violating any of these provisions shall be fined the

sum of not less than twenty-five dollars ($25.00), and not more than one hundred

dollars ($100), for each offense.

Plaintiffs contend that if the train did not blow its whistle upon approaching the

crossing, it would be a violation of this statute and negligence per se. Tenn. Code Ann. §65-12-109

states, however, “A violation of any of the provisions of § 65-12-108 by any railroad company

constitutes negligence per se and in the trial of any causes involving § 65-12-108, the burden of

proof, the issue of proximate cause, and the issue of contributory negligence shall be tried and be

applied in the same manner and with the same effect as in the trial of other negligence actions under

the common law in Tennessee.” Thus, even if the train’s whistle did not blow and there was a

violation of the statute, constituting negligence per se, this would not change plaintiffs’ burden of

proof, nor the issue of proximate cause, nor does it affect decedent’s comparative fault. Since the

Trial Court decided this case based upon the determination that decedent’s sight distance was

sufficient and that she failed to reasonably avoid the accident by looking for the train, the issue of

whether the train whistle blew or not is ultimately not material, and does not create a genuine issue

for trial.

It is undisputed that decedent had a duty to stop at the crossing, and yield to any

oncoming trains. This duty has been established both by case law and statute. Tenn. Code Ann.

§55-8-145 states:

(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 fifty feet (50') but not less than fifteen feet (15') from the nearest rail of such

railroad, and shall not proceed until that driver can do so safely. The foregoing

requirements shall apply when:

(1) A clearly visible electric or mechanical signal device gives warning of the

immediate approach of a railroad train;

(2) A crossing gate is lowered or when a human flagger gives or continues to give a

signal of the approach or passage of a railroad train;

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(3) A railroad train approaching within approximately one thousand five hundred feet

(1,500') 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; and

(4) An approaching railroad train is plainly visible and is in hazardous proximity to

such crossing.

(b) No person shall drive any vehicle through, around or under any crossing gate or

barrier at a railroad crossing while such gate or barrier is closed or is being opened

or closed.

(c) A violation of this section is a Class C misdemeanor.

The undisputed facts establish that the train was plainly visible and in hazardous

proximity to the crossing when decedent proceeded to cross the railroad track, or it would not have

struck her vehicle. Decedent should not have proceeded across the track until ensuring that it was

safe to do so.

Pre-comparative negligence cases have observed:

The rule that it is negligence per se to enter upon a railroad track without looking or

listening has been applied to the ordinary case in which the plaintiff, or the deceased,

was not prevented from seeing or hearing by any other circumstances, and had the

use of his faculties. In such case an ordinarily prudent man is deemed, under the law,

to be guilty of such negligence as would bar a recovery if he entered upon the track

without doing so.

Hurt v. Yazoo & M.V.R. Co., 205 S.W. 437, 442 (Tenn. 1918). In Cincinnati, N.O. & T.P. RY. v.

Garrett, 154 S.W.2d 435 (Tenn. Ct. App. 1941), we observed that where the decedent was familiar

with the crossing, yet proceeded across when a train was too close and was hit:

[Decedent] was absorbed in thought apparently, and took no precautions whatever

for his own safety; he left an island of safety and drove upon the track immediately

in front of a fast approaching train, without looking or attempting to stop before he

entered upon the track, seemingly unaware of the danger. What facts are there to

excuse him from this negligent conduct, making the question of his contributory

negligence one for the jury? . . . It is negligence for one to rely absolutely upon a

warning given by the approaching train as a means of protection when entering upon

a track, and if he relied upon the absence of a warning without using his faculty of

sight and of due caution before entering upon the track, he was negligent,

notwithstanding no warning was given.

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Id. at 442. Similarly, in Maxwell v. Western-Atlantic Railroad Company, 295 F. Supp. 740 (E. D.

Tenn. 1967), the District Court observed:

When viewing the evidence in the present case in its most favorable light unto the

plaintiff, the Court is of the opinion that, in accordance with Tennessee law as set

forth in the foregoing opinions, the plaintiffs’ decedent must be found to have been

guilty of proximate contributory negligence as a matter of law. Reasonable minds

could reach no other conclusion but that Mr. Maxwell had ample opportunity to

observe the approaching train and either failed to look, or having looked failed to see

the imminent danger.

Id. at 747. The District Court went on to note that decedent was familiar with the crossing, that the

accident occurred during daylight hours, that there was no obstruction of his view of the track, and

that the train was obviously in close proximity when he pulled in front of it or it would not have hit

him, thus demonstrating that he could clearly have seen it if he had looked. Id., see also Newport

v. Cincinnati, N.O. & T.P. RY., 509 F.2d 1246 (6th Cir. 1975); Cox v. CSX Trans., Inc., 1989 WL

119375 (6th Cir. 1989).

In sum, it is undisputed that decedent herein was familiar with the crossing at issue,

that the accident occurred during daylight hours on a clear and sunny day, that she had an

unobstructed view up the track for at least 300 feet, and that the train was dangerously close when

she crossed, thereby showing that she could have easily seen the train had she looked. As the

aforementioned cases demonstrate, reasonable minds could not differ as to decedent’s obvious

negligence in proceeding across the train track when the train was close enough to hit her, and the

Trial Court properly granted summary judgment on this issue. As to comparative fault, decedent was

the only person in a position to avoid the accident, as the undisputed evidence was the train could

not have slowed enough or stopped in sufficient time to avoid the decedent’s vehicle when she

pulled upon the crossing in the conductor’s line of vision. She had a duty to yield to the clearly

visible train, and her negligence was the proximate cause of the accident, thereby establishing a

proper basis for the Trial Court’s Summary Judgment, which we affirm..

Finally, plaintiffs’ issue regarding its Motion in Limine is moot, because the

Summary Judgment was properly granted.

The cost of the appeal is assessed to plaintiffs.

______________________________

HERSCHEL PICKENS FRANKS, P.J.

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