Opposition Brief — Lacy v. Csx Transportation, Inc

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= Supreme Vou t, U.S

FILED

oo OCT 1 4 2004

| OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

TANYA L. LACY AND RICHARD BROOKS,

Petitioners,

CSX TRANSPORTATION, INC.,

A VIRGINIA CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Appeals

Of West Virginia

BRIEF IN OPPOSITION

MARC E. WILLIAMS, Esq.

Counsel of Record

ROBERT L. MASSIE, Esq.

J. DAVID BOLEN, Esq.

HUDDLESTON BOLEN LLP

611 Third Avenue

P.O. Box 2185

Huntington, West Virginia 25722-2185

(304) 529-6181

(304) 522-4312 Facsimile

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Petitioners have submitted the following question for

consideration by this Court: “Does a federal regulation

requiring railroads to provide motorists an ‘active’ signal

of danger at grade crossings equipped with automatic

warning devices preempt state negligence law and consti-

tute a legally binding standard of care in an action based

on the federally created duty?” Pursuant to Supreme

Court Rule 15, CSX Transportation, Inc. objects to Peti-

tioners’ question not only as misleading given the argu-

ment presented in their Petition, but irrelevant as the jury

in the underlying matter considered the statutes at issue

including the Federal Railroad Safety Act and the High-

way Safety Act of 1973 and determined that CSX Trans-

portation, Inc. had not violated the crossing regulations. In

reality, Petitioners are asking this Court to create a new

right, duty, and standard under the regulations at issue,

overturn the jury’s verdict and instruct the underlying

trial court to enter judgment in their favor merely because

the Petitioners do not agree with the jury’s verdict. As

such, Petitioners’ writ must be denied.

SUPREME COURT RULE 29.6

DISCLOSURE STATEMENT ~—

Respondent CSX Transportation, Inc. is a non-

governmental corporate party. CSX Corporation owns one

hundred percent (100%) of the stock of CSX Transporta-

tion, Inc.

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TABLE OF CONTENTS

Page

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Supreme Court Rule 29.6 Disclosure Statement.......... il

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Reasons for Denying the Petition .....................cce.0eeeeeee

I. There Is No Split Authority Between The

Circuits On The Issue Presented To Require

This Court To Accept The Petition In This

Matter And Petitioners Have Failed To Pre-

sent Any Logical Argument As To Why This

Court Should Create A Unique Federal Com-

mon Law Regarding Crossing Accidents........... S.

II. Petitioners’ Argument As To Negligence Per Se

Is Irrelevant, As The Jury Correctly Found

That CSXT Did Not Violate Any Federal Regu-

lations With Regard To The Incident At Issue

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TABLE OF AUTHORITIES

Page

CASES

Boyle v. United Technologies Corporation, 487 U.S.

Se eS soit enisichconsctiicipvnksecd siabveeomadnns selanimiddpamenaan temiadele 8,9

Jones v. Consolidated Rail Corporation, No. 96-

3828, 1997 U.S. App. LEXIS 36759 (6th Circuit

December 18, 1997), cert. denied, 525 U.S. 870

CUE civciccuvvastcinelh win dacisiessehantaiautasaalcaiedsngaedtanand 6, 7,12

Morris v. Baltimore and Ohio Railroad, 349

BF, Sea. GAG GTP, We. VR. BI sescececcesvsersinsesconsvsovseovsones 15

Norfolk Southern Rwy. v. Shanklin, 529 U.S. 344

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Kose v. Hodges, 423 U.S. 19 (1976) «......cccrsescssvocsssvesssseceeseee 7

Whitman, et al. v. Consolidated Rail Corporation,

Te eB OO COIR TOES onsncccsccnnsercnsesnsvovnsensnteocenonssss 7

REGULATIONS

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Be ances cnvanenicnsssniatdsncclaabanens 10, 11, 12, 13

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OTHER AUTHORITY

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INTRODUCTION

Petitioners present to this Court a matter that has

now been tried to a jury on two separate occasions, and

each time the jury has found in favor of the Defendant

CSX Transportation, Inc. (CSXT). In the first trial the

Petitioners unsuccessfully argued that CSXT was negli-

gent for failing to install different signal circuitry at the

crossing which would activate the automatic gates based

on the speed and distance a locomotive was from the

crossing at issue. The jury having retuned a verdict in

favor of CSXT on that issue, the Petitioners urged the jury

in the second trial to find CSXT negligent for allowing a

single locomotive to approach the Fifth Street crossing

eastbound at the same time a freight train was approach-

ing westbound and thus violated certain federal regula-

tions with regard to crossings and active warning devices.

The second jury was fully instructed on each of the federal

statutes and regulations currently at issue, and which the

Petitioners alleged the railroad violated, and being so

advised returned a verdict that the railroad had not

violated the regulations at issue and as such was not

negligent in this matter.

Following this second verdict in favor of CSXT

Petitioners first appealed to the Supreme Court of Ap-

peals of West Virginia which refused to hear their appeal,

and now they appeal to this Court. It is important to note

that at no point in their Petition for a Writ of Certiorari

do the Petitioners contend that the jury was improperly

instructed or that the regulations provided were inappli-

cable or not properly formatted for consideration. Instead

the Petitioners argue to this Court that it should displace

the jury’s determination in this matter and, based upon

an incomplete citation to federal crossing regulations,

determine that CSXT is liable to the Petitioners as a

matter of law. Petitioners, however, present absolutely no

support for this position beyond mere conjecture and a

misleading interpretation of the federal regulations. In

essence, Petitioners are asking this Court to ignore two

previous jury determinations that CSXT was not responsi-

ble for this incident, that the jury was properly instructed

on the regulations at issue, and that the jury was provided

with the opportunity to consider the very arguments _

Petitioners now raise to determine if CSXT was negligent

in this matter. As the clear weight of authority demon-

strates that the Petitioners’ position is not only illogical,

but also unsound and therefore their writ to this Court

must be denied.

STATEMENT OF FACTS

Petitioners spend the majority of their Petition to this

Court twisting the facts of the underlying incident at issue

in this matter in the hope of portraying CSXT as purpose-

fully and deliberately violating federal regulations. The

facts as presented by the Petitioners, however, fail not

only to present a complete picture of the events of January

11, 1995, but fail to provide an-accurate picture of CSXT’s

activities in this area on the night of the incident in

question. Specifically, this matter arose from an incident

in which Petitioners, Tanya Lacy and Richard Brooks,

were injured in a railroad grade crossing accident over

nine years ago, on January 11, 1995, at the Fifth Street

Crossing in St. Albans, West Virginia. Despite Petitioners’

statements to the contrary, the visibility for a motorist

at this crossing is unimpaired and the crossing is pro-

tected with both flashing lights and automatic gates.

Thus, there was no reason that a motorist would not see a

train approaching from either direction. (Petition for Writ

of Certiorari at p. 4.) It is important to note that at the

time of the accident it is undisputed that the automatic

warning devices located at the crossing were active and

fully functioning, presenting any oncoming motorist with a

warning that a train was approaching the crossing. There

was no reason why any reasonably alert motorist, who is

operating their vehicle in a reasonable and prudent

manner consistent with West Virginia law, should ever be

involved in a collision with a train at this crossing.

Third Avenue is on the north side of CSXT’s tracks

and runs parallel to the railroad tracks. The railroad

tracks at the crossing in question consist of two sets of

mainline tracks with sidetracks on either side. At this

crossing CSXT uses a fixed distance signal circuit, which

triggers the protective devices when a train reaches a

certain distance from the crossing’ regardless of the

speed of the approaching train. The system is designed,

in compliance with federal regulations, to allow a mini-

mum of 25-30 seconds of warning to pedestrians and

automobile traffic using the crossing that a train is

approaching. See 49 C.F.R. §234.255. Further, in addition

to the above described active warning devices, the Fifth

Street crossing is also protected by the statutorily re-

quired crossbucks, round advance highway railroad

crossing warning signs, diagonal warning signs, painted

* Petitioners assert that the single engine moving eastbound

activated the flashing lights and lowered the automatic gates rather

than the westbound freight train that was ultimately involved in the

accident. CSXT believes that the evidence was inconclusive as to which

train activated the signals, but for purposes of this appeal it is irrele-

vant which train actually triggered the warning devices.

highway markings, mast-mounted flashing light and a

bell. The passive warning signs and pavement markings

were installed with the use of federal funds and the

installation of these signs was specifically approved by the

Federal Highway Administration (FHWA),’ a fact, which is

undisputed by the parties inthis matter. _

The accident at issue occurred at approximately 11:30

p.m. as Cacoe Sullivan drove west on Third Avenue.

Petitioners assert in their brief that Ms. Sullivan ap-

proached the crossing and made a careful and informed

decision to go around the flashing lights and gates due to

the speed of the single locomotive and her knowledge of

the crossing at issue. The evidence in this matter, however,

demonstrates that Ms. Sullivan was not operating her

vehicle in a careful and informed manner, but was driving

with the sole intent of not having to stop for the oncoming

locomotive. It is undisputed in this matter that upon

reaching the intersection just north of the crossing Ms.

Sullivan drove through a stop sign without pausing,

through the flashing lights and around the lowered auto-

matic gates in an effort to beat the locomotive approaching

the crossing.’ Apparently, neither Sullivan nor either of

the Petitioners looked to see if any other trains were

? As a result any claim that the railroad should have installed

additional or different warning devices at this crossing is preempted by

federal law. See Norfolk Southern Rwy. v. Shanklin, 529 U.S. 344

(2000).

* It should be noted that at no point in the Petitioners’ eight (8)

pages of facts presented to this Court do they discuss the fact that Ms.

Sullivan drove through a stop sign and into the crossing at issue

without as much as a pause to see if it was safe to proceed. If she had

brought the car to a stop at any point prior to entering the crossing, it is

likely she would have noticed the approach of the second locomotive in

this matter, thus preventing any accident.

a Y

approaching the crossing before Sullivan violated West

Virginia law and drove onto the crossing. None of the

occupants of the car objected to the actions of Sullivan. At

the time of the accident both trains were sounding their

whistles and bells in full comp iance with West Virginia

law. Unfortunately, as the westbound freight train was so

close to the crossing when Sullivan drove through the stop

sign and around the gates, the train was unable to stop

prior to the impact.

Petitioners reiterate in this Petition the same argu-

ment they unsuccessfully put forth during the second trial

of this matter, specifically that CSXT violated certain

federal regulations by allowing two trains to operate

inside the crossing signal circuitry at the same time and

therefore the trial court erred in not granting them judg-

ment as a matter of law. It should be noted that after

being presented with this argument and having been

provided the federal regulations at issue, the jury returned

a verdict in favor of CSXT finding that they had not

violated the federal regulations with regard to their

operations on the night of the incident in question.

Petitioners are in reality asking this Court to ignore the

jury’s determination and create a new standard under the

Federal Railroad Safety Act and the Highway Safety Act

of 1973 and thus find CSXT negligent as a matter of law.

The argument follows that, having allegedly violated

various federal regulations, this Court should find as a

matter of law that CSXT was negligent, either through

application of the concept of negligence per se or strict

liability. Petitioners’ argument is not only contrived but

requires a violent distortion of the language of several

federal regulations, and with regard to one specific

regulation an outright abrogation of the regulation.

ANREP GR NRE isa Sad AI FEET

(Petition for Writ of Certiorari at p. 20.) See 49 C.FR.

§234.1. Contrary to Petitioners’ assertion, reading the

regulations as proposed would create more confusion not

less and as such their Petition must be denied.

REASONS FOR DENYING THE PETITION

I. There Is No Split Authority Between the Cir-

cuits on the Issue Presented to Require This

Court to Accept the Petition in This Matter And

Petitioners Have Failed to Present Any Logical

Argument As To Why This Court Should Create

a Unique Federal Common Law Regarding

Crossing Accidents.

Petitioners seek relief from this Court by asserting

that there is a sufficient split of authority with regard to

the application of the regulations in question to support

their application for a writ to this Court. In support of this

theory, Petitioners cite two cases, one an unpublished case

from the United States Court of Appeals from the Sixth

Circuit and the other from the Supreme Court of Ohio.‘

See Jones v. Consolidated Rail Corporation, No. 96-3828,

1997 U.S. App. LEXIS 36759 (6th Circuit December 18,

* It should be noted that the Petitioners’ counsel in the instant

matter was also counsel for the plaintiffs in the two actions cited as

support for their proposition that there is a split of authority in the way

the regulations are being interpreted by the Courts.

1997), cert. denied, 525 U.S. 870 (1998) and Whitman,

et al. v. Consolidated Rail Corporation, 715 N.E.2d 546

(Ohio 1999). Initially it should be noted that not only are

the Jones and Whitman cases factually dissimilar to the

cases at bar, they fail to discuss the regulations at issue in

this matter and utterly fail to address Petitioners’ claims

as to the requirement of a federally created negligence per

se or strictly liability jury instruction.

Specifically, both Jones and Whitman involved locomo-

tives that had actually stopped at the crossings after

activating the gates and lights. As noted above, both trains

approaching the crossing at issue in this matter were

operational and continued to be so up and until the time of

the incident in this matter. Rather than providing an

analysis, as alleged by Petitioners, with regard to the

regulations at issue, neither case cited even addresses the

issues presented in this matter. In Jones the Sixth Circuit

refused to even address the plaintiff’s arguments as to the

application of negligence per se or a misapplication of the

regulations at issue, as they were untimely. Jones 1997

U.S. App. LEXIS 36759 at *4-*5. In Whitman, the Ohio

Supreme Court did not even address a single regulation

that is at issue in this matter. See Whitman, et al. v.

Consolidated Rail Corporation, 715 N.E.2d 546 (Ohio

1999). It is clear that there is no split of authority on this

matter, because as more fully described below the regula-

tions at issue are clear and unambiguous and specifically

define a railroad’s duty with regard to the facts alleged in

* It should be noted that Federal Rules of Appellate Procedure for

the Sixth Circuit disfavor the citing of unpublished opinions, a fact that

this Court took note of in Rose v. Hodges, 423 U.S. 19, 23 (1975)

(Brennan, J. dissenting). See also, 6 Cir. R.28.

the case at bar. Further, it is also clear that CSXT did not

violate any regulation in this matter and as such Petition-

ers’ appeal to this Court must be denied.

Petitioners also assert that this Court should take this

opportunity to develop a federal common law with regard

to crossing regulations that would “benefit both the public

at large and the railroad industry.” (Petition for Writ of

Certiorari at p. 24.) Petitioners’ assertions, however, are

fatally flawed as there is no logical reason in this matter

to suggest that the findings of two juries with regard to

the lack of liability on the part of CSXT in light of the

federal regulation at issue should be displaced. In other

words, this Court should not even get to Petitioners’

argument as to the creation of a “federal common law”

with regard to crossing accidents as CSXT did not violate

any regulation at issue in this matter. Specifically, Peti-

tioners are asking this Court to not only develop a “federal

common law” as to crossing incidents, but to then take the

regulations at issue and construe them in such a manner

as to find that CSXT has violated those regulations. There

is no logical basis in this matter to suggest that either

approach is appropriate. |

Further, Petitioners reliance on Boyle v. United

Technologies Corporation, 487 U.S. 500 (1988) is not only

misplaced due to the fact that CSXT has not violated any

regulation in this matter, but the creation of a federal

common law would be inappropriate as there has been no

credible demonstration made by Petitioners that a “‘sig-

nificant conflict’ exists between an identifiable ‘federal

policy or interest and the operation of state law,’ or the

application of state law would ‘frustrate specific objectives’

of federal legislation” Jd. at 507 (internal citations omit-

ted). Petitioners have admitted that the first portion of

this part of the Boyle test is not applicable in this matter,

choosing instead to focus on the second aspect. (Petition

for Writ of Certiorari at p. 23.°) With regard to this aspect

Petitioners have presented no support for the proposition

that state law would in any way frustrate specific objec-

tives of federal legislation. As more fully set forth herein,

CSXT complied completely with all of the regulations at

issue in this matter such that there was no determination

with regard to state law necessary in this matter. In

reality, Petitioners are asking this Court to set aside any

duties or obligations that a motorist might have under

state law, and hold railroads strictly liable for any accident

occurring at a crossing.’ Such an interpretation is not only

contrary to existing federal law, but would require a total

disregard of the statutes and regulations at issue in this

matter. As such Petitioners’ writ to this Court must be

denied.

* In Boyle this Court crafted a two prong test with regard to the

establishment of a federal common law noting that there must be “an

area of uniquely federal interest” and that there must also be a finding

that either a significant conflict between an identifiable federal policy

or interest and the operation of state law or that the application of state

law would frustrate specific objectives of federal legislation. Boyle v.

United Technologies Corporation, 487 U.S. 500, 507-08 (1988). |

” Petitioners are, through this argument, simply seeking from this

Court what they have been unable to get from two separate juries. This

argument also ignores the concept of federal preemption that is

interwoven into the fabric of these regulations. See Shanklin, 529 U.S.

344 (2000). Through Shanklin and other cases, state law in this area

has been preempted by the federal regulations at issue. As such, there

can be no “significant conflict” because the federal law is the only

relevant law.

II. Petitioners’ Argument As to Negligence Per Se

Is Irrelevant, As The Jury Correctly Found

That CSXT Did Not Violate Any Federal Regu-

lations with Regard to the Incident at Issue In

This Matter.

- Petitioners have repeatedly misused 49 C.FR.

§234.209, passed eleven days prior to the accident at issue,

along with a patchwork of other regulations and parts

thereof, to create a strained interpretation in order to

persuade this Court to overturn the jury’s verdict that was

based upon proper jury instructions. As noted above, the

Petitioners’ argument throughout not only their Petition to

this Court, but throughout the underlying matter as well,

is that CSXT violated 49 C.F.R. §234.209, and as such they

are entitled to judgment as a matter of law in this matter

either through the application of strict liability or negli-

gence per se.° Petitioners’ argument, however, must fail as

it is not only conceptually flawed, but would place the

entire federal regulatory framework on its head. Specifi-

cally, 49 C.F.R. §234.209 deals with interference with the

normal functioning of crossing systems and states in

relevant part:

* Prior to the jury’s determination, CSXT moved for a directed

verdict based on federal preemption pursuant to this Court’s holding in

Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344 (2000). CSXT

argued that the federal regulations preempted state tort law with

regard to the Petitioners’ underlying cause of action and therefore, .

CSXT was entitled to judgment as a matter of law. The lower court,

however, disagreed and as noted above provided the jury with the

agreed upon relevant regulations. The jury thus rendered CSXT’s

argument moot as it determined that CSXT was not negligent in this

matter and had not violated any of the federal regulations at issue.

§234.209 Interference with normal functioning of

system

(a) The normal functioning of any system shall

not be interfered with in testing or other-

wise without first taking measures to pro-

vide for safety of highway traffic that

depends on normal functiouing of such sys-

tem.

(b) Interference includes, but is not limited to:

(1) Trains, locomotives or other railroad

equipment standing within the system’s

approach circuit, other than normal

train movements or switching op-

erations, where the warning system is

not designed to accommodate those ac-

tivities.

(2) Not providing alternative methods of

maintaining safety for the highway

user while testing or performing work

on the warning systems or on track and

other railroad systems or structures

which may affect the integrity of the

warning system.

49 C.F.R. §234.209 (Emphasis added).

The Petitioners’ basic argument is that the single

switcher locomotive interfered with the normal function-

ing of the Fifth Street system merely because it was

approaching the crossing at the same time as another

train. Petitioners’ argument, however, must fail as the

plain language of the regulation itself excludes from the

definition of interference “normal train movements”

including switching operations. See 49 C.F.R. §234.209(b\1).°

The slower moving switcher engine, while not engaged at

switching at the time of the accident, was thus a normal

train movement though the crossing circuit and did not

qualify as an interference with the normal function of the

crossing system. The Petitioners have offered no logical

support for their assertion that the movement of the single

eastbound engine was not a normal train movement and

instead offer merely conjecture and a misleading interpre-

tation of federal regulations as support for their positions

in this matter.” The undisputed evidence in this matter is

that the movement of the eastbound single engine was a

normal train movement and as such Petitioners’ argument

is irrelevant as there was no violation of the regulations at

issue.

Further, evidence that the regulation does not apply

in this situation comes from the explicit inclusion of

“standing” trains, locomotives or equipment in the circuit

system within the scope of the regulation. This is strong

evidence that the Federal Railway Administration, in

enacting the regulation, was aware of situations involving

multiple trains in the circuit path at the same time and

* Petitioners in their brief fail to point out to the Court the full

language of the regulation at issue and fail utterly to address the fact

that the regulation at issue covers CSXT’s activities on the night of the

incident in this matter and unambiguously demonstrate that CSXT was

in compliance with those regulations.

** In fact the Petitioners cite only six cases in their entire Petition

to this Court, of which only one has any arguable relevance to the

matters asserted herein; an unpublished case from the United States

Court of Appeals for the Sixth Circuit upholding CSXT’s position as to

the regulations at issue. See Jones v. Consolidated Rail Corporation,

No. 96-3828, 1997 U.S. App. LEXIS 36759 (6th Circuit December 18,

1997), cert. denied, 525 U.S. 870 (1998).

chose to prohibit trains and other equipment from “stand-

ing” in the circuit path. The regulators did not choose to

prohibit multiple trains from moving inside the same

circuit path while in normal movement. Had the regula-

tors wanted to prevent multiple trains from moving inside

the same circuit path at the same time they knew how to

do so. However, they chose instead to exclude from the

operation of the regulations normal moving trains. Despite

the overwhelming weight of authority against their posi-

tion the Petitioners argue, although not included with the

argument portion of their Petition, but instead in their

Statement of the Case, that other regulations provide the

background by which 49 C.F.R. §234.209 must be inter-

preted as they have suggested. One regulation discussed

by Petitioners is 23 C.F.R. §646.214(b)(3)(i). That regula-

tion provides in relevant part:

§Design.

(3)) Adequate warning’ devices, under

§646.214(b)(2) or on any project where

Federal-aid funds participate in the in-

stallation of the devices are to include

automatic gates with flashing light sig-

nals when one or more of the following

conditions exist:

(A) Multiple main line railroad tracks.

(B) Multiple tracks at or in the vicinity of

| the crossing which may be occupied

by a train or locomotive so as to ob-

scure the movement of another train

approaching the crossing.

with limited sight distance at either

single or multiple track crossings.

(D) A combination of high speeds and

moderately high volumes of highway

and railroad traffic.

(E) Either a high volume of vehicular

traffic, high number of train move-

ments, substantial numbers of school

buses or trucks carrying hazardous

materials, unusually restricted sight

distance, continuing accident occur-

rences, or any combination of these

conditions. —

(F) Adiagnostic team recommends them.

(ii) In individual cases where a diagnostic

team justifies that gates are not appropri-

ate, FHWA may find that the above re-

quirements are not applicable.

23 C.F.R. §646.214.

This regulation requires that if a state orders the

upgrade of warning devices at a crossing that upgrade

shall include the installation of automatic gates if federal

funds are used. Jd. Thus, if a state is going to spend

federal money to upgrade a crossing with multiple

mainline tracks they must install automatic gates unless a

diagnostic team decides otherwise. Both automatic gates

and flashing lights were in place at the Fifth Street

Crossing. Despite this fact, the Petitioners have focused on

the term “adequate” in the regulation to argue that a

warning cannot be “adequate” under federal law unless

they give a positive or active signal of a specific approach-

ing train. According to Petitioners, the signals must

change aspects anytime a train enters the circuits, even if

another approaching train has already activated the

signals. Petitioners, however, cite no federal regulation or

case law as support for this proposition, and it is undis-

puted that no signal system in use in the United States

changes aspect when a second train enters the circuit."

The lights continue to flash and the automatic gates

remain down. The signals correctly are warning that a

train or trains are approaching. In fact, the installation of

automatic gates at a crossing with multiple mainline

tracks, as opposed to only flashing lights, is done precisely

because it is possible that two trains may be approaching

the crossing at the same time. Thus, ironically, if Petition-

ers’ interpretation of the regulations were correct, and it is

a violation of federal law to allow two trains to approach a

crossing at the same time, there would never be a need to

install automatic gates at a crossing because two trains

should never be approaching the crossing at the same

time.”

" Petitioners have also included a discussion concerning Constant

Warning Time technology in their petition to this Court. (Petition for

Writ at pp. 15-16.) Such discussion, however, is irrelevant to the

matters asserted herein as Petitioners not only explicitly stipulated

that evidence of constant warning time technology would not be

admissible at trial, they represented to the court below that they had no

intention of offering evidence as to that technology. Further, even if

such technology had been installed at the crossing at issue, it would not

have prevented the accident, as the gates and lights would have still

have been activated at the time that Ms. Sullivan appreached the

crossing and she still would have driven onto the crossing as she did not

look in the direction in which the locomotive that struck her vehicle was

approaching prior to proceeding across the railroad tracks.

” Further, even assuming arguendo that the Petitioners are

correct, all railroad crossings protected by only cross bucks or other

passive warning devices would violate this regulation. This is clearly

not the case. See generally, Morris v. Baltimore and Ohio Railroad, 349

F.Supp. 649 (S.D.W.Va. 1972).

To overcome the fact that 23 C.F.R. §646.214 makes no

mention of multiple trains occupying a circuit at the same

time, Petitioners have turned to a second regulation, 23

C.F.R. §646.204. That regulation states in pertinent part:

§646.204 Definitions. |

For the purposes of this subpart, the following defini-

tions apply:

Active warning devices means those traffic con- |

trol devices activated by the approach or pres- |

ence of a train, such as flashing light signals,

automatic gates and similar devices as well as

manually operated devices and crossing watch-

men, all of which display to motorists positive

warning of the approach or presence of a train.

* * *

Passive warning devices means those types of

traffic control devices, including signs, markings

and other devices, located at or in advance of

grade crossings to indicate the presence of a

crossing but which do not change aspect upon the

approach or presence of a train.

23 C.F.R. §646.204. ~

Again however, nothing in this regulation speaks to a

situation in which two trains occupy a signal circuit at the

same time. Petitioners’ focus on the language in the active

warning device definition as one which displays “to motor-

ists a positive warning of the approach or presence of a |

train,” proves nothing. The regulation requires only that

the signals provide warning of the approach of “a train,”

not “the train” that ultimately struck the Petitioners’

vehicle. The regulations nowhere require that notice be

given of the approach of one train as opposed to another

et niinrnrsenreaicininncnsinenaneisiaiainiianiiiaaeiiiiediaiaiiiall

approaching from a different direction. On the day of the

accident the signals did provide warning of the approach

of a train and Ms. Sullivan ignored those warnings and

tried to beat a train across the crossing. This is not a

violation of any federal regulation on the part of CSXT and

two juries consistently so found.

Petitioners have also referenced 49 C.F.R. §234.225 as

a regulation allegedly violated by CSXT. That regulation

provides:

§234.225 Activation of warning system.

A highway-rail grade crossing warning system

shall be maintained to activate in accordance

with the design of the warning system, but in no

event shall it provide less than 20 seconds warn-

ing time for the normal operation of through

trains before the grade crossing is occupied by

rail traffic.

49 C.F. R. §234.225.

Petitioners’ argument focuses on the language in the

regulation that a highway-rail grade warning system

“shall be maintained to activate in accordance with the

design of the warning system”. Petitioners argue that the

design of the warning system was to change aspect on

approach of a train and that when the second train en-

tered the circuit the signals could not change aspect

because they were already activated and were already

warning motorists that a train was approaching. 49 C.F.R.

§234, however, is entitled “Grade Crossing Signal System

Safety” and governs only the testing and inspection of the

mechanical equipment of the signal system. It has no

application to the movement of trains through a signal

system. Section 234.1 defines the scope of this regulation

and states in part: :

This part imposes minimum maintenance, in-

spection and testing standards for highway-

rail grade crossing warning systems. This

part also prescribes standards for the reporting

of failures of such systems and prescribes mini-

mum actions the railroad must take when such

warning systems malfunction.

49 C.F.R. §234.1. (Emphasis added).

At no place in any of these regulations does the FRA

require that the railroad operate its railroad in such a

manner that the train which is ultimately involved in an

accident be the one that activates the grade crossing

warning system. And as stated above, there is no signal

system in use in the United States that would change

aspect when a second train enters the circuit. Like all

other regulations cited by Petitioners, this regulation was

not violated by CSXT in the present action and as such

their Petition to this Court must be denied.

CONCLUSION

Petitioners have presented no compelling reason to

this Court as justification for the grant of a writ of certio-

rari. There is no split of authority with regard to the

issues presented to this Court and there is no logical

reason for this Court to create a federal common law with

regard to crossing accidents. Further, two previous juries

have determined, after being provided with the regula-

tions at issue, that CSXT did not violate the regulations

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and was not responsible for the accident at issue. Petition-

ers’ writ to this Court must accordingly be denied.

Respectfully submitted,