Opinion

Wooten v. CSX Railroad

  • 164 Ohio App. 3d 428
  • 2005 Ohio 6252
  • 842 N.E.2d 603
Court
Ohio Court of Appeals
Filed
Nov 23, 2005
Status
Published
Author
Grady
On the bench
Wolff, Grady, Donovan
Cited by
7 cases
Authority
More cited than 42.9%

The opinion

*445

Grady, Judge,

dissenting in part and concurring in part.

{¶ 57} I would not find that the testimony of Dr. Berg, plaintiffs’ expert, supported by photos, fails to preserve a genuine issue of material fact with respect to Wooten’s opportunity to see and avoid the oncoming train. However, I agree that the holding in

Hicks v. Consol. Rail Corp.

(1993), 92 Ohio App.3d 636 , 637 N.E.2d 19 , is distinguishable with respect to the central issue concerned, which is whether defendant CSX Railroad breached a duty of care it owed Wooten.

{¶ 58} In

Hicks ,

a dense stand of trees growing on and adjacent to the railroad’s right-of-way allegedly prevented the plaintiff from seeing an oncoming train. Trees take many years to achieve that state of growth and density. Existence of such a relatively permanent condition charged the railroad with knowledge of it, and that knowledge imposed on the railroad a duty to take reasonable measures to avoid the hazard to motorists that its passing trains presented.

{¶ 59} In the present case, a growth of standing corn is alleged to have created a similar obstruction. However, corn is planted seasonally and grows rapidly, far more so than trees. Therefore, even if the corn obstructed Wooten’s opportunity to see the oncoming train, CSX had no duty to take additional steps to avoid the risks to passing motorists such as Wooten that the obstruction created. That would include removing the corn as well as reducing the speed of its trains below the limit permitted by applicable regulations, which are the measures plaintiffs contend it should have taken.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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