IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-60533
Summary Calendar
____________________
GLENDORIA DAVIS, As Administratrix of the Estate of
Vincent T Davis Deceased,
Plaintiff-Appellant,
v.
CSX TRANSPORTATION, INC, A Foreign Corp; ROBERT NORMAN
CHRISTEN; ROBERT WARD,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(1:97-CV-174-GR)
_________________________________________________________________
March 29, 1999
Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Glendoria Davis, as administratrix of
the estate of Vincent Davis, brought this wrongful death action
against defendant-appellee CSX Transportation, Inc. and the
conductor and engineer of its train that struck and killed
Vincent Davis. The district court granted defendants-appellees’
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
motion for summary judgment. Because we determine that Glendoria
Davis raised a genuine issue of material fact as to whether
defendants-appellees failed to exercise due care upon realizing
that Vincent Davis was in immediate danger, we affirm in part and
reverse in part, and remand to the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendants-appellees Robert Christen and Robert Ward were
the conductor and engineer, respectively, of a train owned by
defendant-appellee CSX Transportation, Inc. (collectively,
defendants) as it traveled west through Gulfport, Mississippi
during the early morning hours of August 26, 1994. Shortly after
four a.m., the train struck and killed Vincent Davis as he lay on
the tracks.
Plaintiff-appellant Glendoria Davis, as administratrix of
Vincent Davis’s estate, filed this suit in state court on
December 12, 1996, alleging that Christen and Ward were negligent
in operating the train and that their negligence caused the death
of Vincent Davis. Specifically, Glendoria Davis alleged that
Christen and Ward (1) failed to keep an adequate and appropriate
lookout, (2) failed to timely identify and react to Vincent
Davis’s presence on the tracks, (3) operated the train at a speed
in excess of CSX guidelines, and (4) failed to equip the train
with a sufficiently bright headlight. Defendants removed the
suit to the United States District Court for the Southern
District of Mississippi on April 16, 1997 pursuant to 28 U.S.C.
§ 1441(a).
2
The district court found that Glendoria Davis’s claim that
Ward and Christen operated the train at an excessive speed was
preempted by federal regulations, see CSX Transportation, Inc. v.
Easterwood, 507 U.S. 658, 673-75 (1993) (holding that federal
regulations preempt claim that railroad breached common-law duty
to operate its train at moderate and safe rate of speed), and
granted defendants partial summary judgment.1 Defendants filed a
second motion for summary judgment on Glendoria Davis’s remaining
claims, arguing that they had no duty to keep a lookout for
trespassers and, relying on Ward’s and Christen’s deposition
testimony and an expert’s analysis, that they took all
appropriate action to avoid the accident.
Ward testified in his deposition that at approximately 4:09
on the morning that Vincent Davis was killed, while the train was
traveling at about forty miles per hour, he observed an object on
the tracks ahead of the train that he initially thought was a
log. Ward stated that he realized almost immediately that it was
a person and began blowing the train’s whistle. After initially
blowing the whistle with his left hand, Ward explained that he
“crossed over” so that he was blowing the whistle with his right
hand and engaging the train’s brakes with his left hand. Ward
claimed that he does not know how many times he blew the train’s
whistle, but stated that he blew the whistle with his left hand
more than once before engaging the brake. The person on the
1
Glendoria Davis does not appeal the district court’s grant
of summary judgment on her excessive speed claim.
3
tracks, Vincent Davis, did not respond to the whistle, and tests
performed subsequent to the accident showed that he had a blood
alcohol content of 0.22 percent. The train struck and killed
Vincent Davis after Ward engaged the emergency brake.
Ward was unable to estimate how much time elapsed from the
time he first saw Vincent Davis on the track until the time he
engaged the brake. Christen stated that he was looking to the
rear of the train when he heard the first whistle, and that Ward
engaged the brakes “very shortly after” the first whistle. Ward
claimed that he did not know how far Vincent Davis was in front
of the train when he first identified him, but that he had
continuously observed the track ahead of the train for at least
two or three minutes prior to identifying Vincent Davis, and that
the engine’s headlamp was on “bright.”
Defendants included in their motion for summary judgment an
analysis by Robert MacRae that concluded, “It is highly unlikely
that the crew members could have recognized . . . the object on
the track as an incapacitated person” from more than 1050 feet
away. MacRae determined that the train was traveling at thirty-
six miles per hour (52.8 feet per second) and had a braking
distance of 1200 to 1220 feet. MacRae suggested that the period
of perception and reaction by a train engineer is typically 1.5
to 2 seconds when the action to be taken is immediately obvious
and in conditions of good visibility during daylight hours, and
that the detection and identification of a human form at night
can easily require five or more seconds. Based on this data,
4
defendants argued that they could not have avoided striking
Vincent Davis.
Glendoria Davis argued to the district court that the “key
issue” in determining whether defendants were negligent is “the
time in which the train operators knew or should have known that
an unmoving human form was laying on the railroad tracks” and
whether they failed to promptly apply the emergency brakes.2
Glendoria Davis relied on the report and opinion of James Sobek,
an engineer she retained to investigate the collision. Sobek
reported that the illumination provided by the train was “much
more than sufficient” for defendants to identify Vincent Davis’s
body at a distance of 1300 feet from the point of impact, and
that as the train moved over the next 100 feet “any crew member
looking up that track from the locomotive cab would have
concluded that a human being or some object very like a human
being was lying in the tracks.” After investigating the accident
scene, Sobek testified in a deposition that he had revised his
opinion and believed that an object on the rails could have been
2
In her brief opposing defendants’ motion for summary
judgment, Glendoria Davis conceded that defendants were not
negligent for failing to have a sufficient headlight on the
train, noting that her expert determined “that the brightness of
the train’s headlight in the instant case far exceeded the
minimum standards established by federal regulations governing
train headlights.” Glendoria Davis also provided no support for
her claim that defendants failed to keep an adequate and
appropriate lookout, and states in her appellate brief that their
“responsibility to keep a lookout for trespassers is not
implicated in the instant case.” We therefore agree with the
district court that Glendoria Davis failed to raise an issue of
material fact as to either of these allegations and affirm its
grant of summary judgment on these claims.
5
identified from 2000 feet away and that at 1500 feet “anybody who
made an observation, looking up the track, would see that there
is something that is distinctly different and very human like.”
Sobek stated, however, that he could not testify as to what the
crew actually saw prior to impact with Vincent Davis.
Glendoria Davis also relied on the report of James Loumiet,
an accident reconstruction analyst. Based on the train’s event
recorder printout, Loumiet determined that the train was
traveling at about thirty-two miles per hour (46.9 feet per
second) when the emergency brakes were applied and that the train
stopped in emergency braking in about 1010 feet. After
investigating the accident scene, Loumiet testified in a
deposition that the train stopped 932 feet past the point of
impact, and that therefore the emergency brakes were applied
seventy-eight feet before the train struck Vincent Davis.3
Although Loumiet testified that he had no opinion regarding when
defendants first saw Vincent Davis or how much time elapsed
between the time Ward began blowing the horn and the time he
3
Loumiet’s original report, and Glendoria Davis’s brief
before the district court, concluded that the train traveled 393
feet from the point of impact, and that therefore the brakes were
applied 617 feet before impact. Glendoria Davis used this data,
with a speed of 36 miles per hour and a visibility of 1300 feet,
to conclude that defendants waited almost 13 seconds after
identifying Vincent Davis before they applied the emergency
brakes, and that if they had applied the brakes within the first
five seconds the collision would have been avoided. In
considering this motion for summary judgment, the district court
properly drew all factual inferences in Glendoria Davis’s favor
and relied on her updated data. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant is
to be believed, and all justifiable inferences are to be drawn in
his favor.”).
6
engaged the brakes, Glendoria Davis argued that this evidence
demonstrates that one could reasonably deduce that defendants
failed to promptly apply the brakes after identifying Vincent
Davis, and that this negligence cost him his life.
The district court determined that Vincent Davis was a
trespasser on the tracks at the time of the accident and that,
under Mississippi law, a railroad has no duty to keep a lookout
for trespassers. See Maxwell v. Illinois Cent. Gulf R.R., 513
So. 2d 901, 905 (Miss. 1987). Before the moment that they
spotted a person on the tracks, defendants had only a duty to
refrain from wilfully, wantonly, or grossly negligently injuring
Vincent Davis. See id. Only when defendants became aware of
Vincent Davis’s presence on the tracks did they have a duty to
exercise ordinary or reasonable care under the circumstances to
avoid injuring him. See id. The district court determined that
to fulfill this duty, an engineer in this situation must, upon
seeing a person in danger, blow the whistle if there is time
within which this may be done, and, if the circumstances show
that the person will probably not seek safety, the engineer must
stop the train if the trespasser’s peril is appreciated in time
to stop. See Young v. Columbus & G. Ry., 147 So. 342, 343 (Miss.
1933); Gulf & Ship Island R.R. v. Williamson, 139 So. 601, 602
(Miss. 1932); Yazoo & Miss. Valley R.R. v. Lee, 114 So. 866, 870
(Miss. 1927).
The district court found that the evidence established that
the whistle was blown as soon as the engineer spotted the object
7
on the tracks. The district court rejected Glendoria Davis’s
argument that her evidence suggested that Ward decided to “merely
blow the horn” when he should have applied the brakes because
Ward applied the brakes 30.5 seconds, or more than 1400 feet,
from the point where Sobek testified anyone observing the track
would have seen a human-like form. The district court determined
that Glendoria Davis offered no proof as to when Ward first saw a
person on the tracks or how much time elapsed until he applied
the brakes, and because a railroad’s duty of reasonable care
toward a trespasser begins only when the railroad becomes aware
of the trespasser’s peril, the court granted defendants summary
judgment. Glendoria Davis timely appeals.
II. DISCUSSION
Glendoria Davis argues that the district court erred in
granting defendants summary judgment because a genuine issue of
material fact exists regarding whether Vincent Davis’s peril was
appreciated in time to stop the train. Glendoria Davis asserts
that a jury could reasonably conclude on the basis of expert
testimony that Ward identified Vincent Davis’s body from a
distance of over 1500 feet but failed to stop the train in a
reasonable manner. See Williamson, 139 So. at 602 (determining
there was sufficient evidence supporting jury verdict for
plaintiff where jury could reasonably disbelieve train operator’s
testimony that he did not see the deceased when deceased was
within the effective range of the train’s headlight).
Furthermore, because it is undisputed that Vincent Davis did not
8
move at any time during the sequence of events and Ward testified
that his body looked like a log, Glendoria Davis argues that his
peril was “obvious” from 1500 feet and that therefore Ward was
negligent for failing to apply the brakes at that time.
A. Standard of Review
“We review a grant of summary judgment de novo, applying the
same criteria used by the district court in the first instance.”
Texas Manufactured Housing Ass’n v. City of Nederland, 101 F.3d
1095, 1099 (5th Cir. 1996); see Tolson v. Avondale Indus., Inc.,
141 F.3d 604, 608 (5th Cir. 1998). Summary judgment is proper
“if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986). Furthermore, “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge”; when considering a motion for summary judgment, the court
must credit the evidence of the nonmovant and draw all
justifiable inferences in her favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
B. Identifying Vincent Davis
The district court correctly stated that under Mississippi
law the operators of a train are required to exercise reasonable
care to prevent injuring a trespasser only after they have
9
discovered and realized his peril. See Maxwell, 513 So. 2d at
905; Illinois Cent. Gulf R.R. v. Ishee, 317 So. 2d 923, 925
(Miss. 1975); Gulf, Mobile & Ohio R.R. v. Hollingshead, 236 So.
2d 393, 395 (Miss. 1970) (“The test of responsibility arises when
the engineer becomes aware of the presence and peril of the
trespasser.”). This does not mean, however, that a court must
accept the train operators’ account of when they observed the
trespasser and realized his peril. In Williamson, the
Mississippi Supreme Court explicitly considered whether a
railroad was entitled to judgment as a matter of law when its
operator testified that he did not see the deceased. See 139 So.
at 602. In that case, the operator testified that he could see
200 to 300 feet beyond a crossing but that he did not see the
deceased. See id. at 601-02. The physical evidence indicated,
however, that the deceased was at the crossing when the train’s
light first fell upon him and approximately 130 feet from the
crossing when the train struck him. See id. at 602. The
district court affirmed the jury’s verdict for the plaintiff,
determining that the evidence supported the conclusion that the
operator “did see the deceased, that in the nature of things he
was obliged to have seen him, and that the statement of the
[operator] that he did not see the deceased could reasonably be
disbelieved.” Id.; see also Dickerson v. Illinois Cent. R.R.,
145 So. 2d 913, 920 (Miss. 1962) (determining that plaintiff’s
evidence regarding hypothetical visibility of deceased “was
properly admitted and considered by the [court] as testimony
10
offered to discredit the testimony of the defendant engineer”);
cf. Ishee, 317 So. 2d at 925-26 (determining that evidence of a
visibility experiment six months after the accident, after weeds
had been cleared and using a stationary stepladder, was
inadmissible because conditions were not sufficiently similar).
Defendants argue that Glendoria Davis cannot prevail on her
negligence claim because the district court correctly determined
that she presented no evidence indicating when defendants saw
Vincent Davis and that her reliance on Williamson is misplaced
because Ward admits seeing Vincent Davis. Defendants contend
that by offering Sobek’s opinion that Vincent Davis could be seen
at a distance of 1500 feet, Glendoria Davis is really arguing
that defendants should have seen Vincent Davis at that distance
and were negligent because they failed to maintain a proper
lookout.
Defendants’ arguments, however, misconstrue Glendoria
Davis’s claim and the court’s holding in Williamson. Sobek’s
opinion that Vincent Davis could be seen at a distance of at
least 1300 to 1500 feet, like the headlight evidence in
Williamson and visibility experiments in other cases, is evidence
from which a jury could reasonably conclude that Ward actually
saw Vincent Davis at that distance. Although defendants are
correct in their contention that it is insufficient to say only
that Ward should have seen Vincent Davis from a particular
distance, it is sufficient to present evidence from which a
reasonable jury could infer that the train was at least 1500 feet
11
away when Ward did see Vincent Davis.
Glendoria Davis has successfully raised an issue of material
fact as to the distance between the train and Vincent Davis when
Ward first identified him. In fact, because Ward stated in his
deposition testimony that he did not know how far Vincent Davis
was in front of the train when he first identified him, Sobek’s
opinion is the only evidence currently in the record as to this
distance.
C. Engaging the Brake
The district court determined that defendants’ duty once
they identified Vincent Davis was that “the whistle is to be
blown if there is time within which this may be done . . . .
[T]he engineer must stop the train if the trespasser’s peril is
appreciated in time to stop the train.” Maxwell, 513 So. 2d at
906. The district court found that “[t]he facts of this case
establish that this is precisely the route taken by the train
operator in this case.” Defendants argue that the district
court’s conclusion was correct because Ward testified, and
Glendoria Davis does not contest, that upon identifying Vincent
Davis he immediately began blowing the whistle. In addition,
defendants contend that Glendoria Davis failed to offer
“critical” evidence indicating how much time elapsed between
Ward’s initial identification of Vincent Davis and his engagement
of the brake.
The district court correctly determined that an operator
need not slow a train until circumstances show that the person
12
will probably not seek safety, and that “[w]hen the engineer sees
a person upon the track he ordinarily has the right to presume
that the person is in possession of his faculties and that he
will note the alarm being given” when that person is an adult and
“apparently normal.” Lee, 114 So. at 870. Nonetheless, when
circumstances arise that “bring to [the operator’s] mind, or
should bring to his mind, the reflection that the person is not a
normal person or has not heard the alarm and will probably not
seek his safety in due time,” the operator must stop the train if
there is sufficient time to bring the train to a stop to prevent
injury to that person. Id.; see Maxwell, 513 So. 2d at 905-06.
Glendoria Davis argues that she presented evidence showing
that Ward knew or should have known that it was probable that
Vincent Davis would not seek safety in time to avoid this
unfortunate result. Glendoria Davis points to Ward’s testimony
that when he initially identified Vincent Davis’s body he mistook
it for a log and to its presence on a railroad track at 4:09 in
the morning as circumstances suggesting that he would not hear
the warning signs and remove himself from danger. Furthermore,
there is no evidence that Vincent Davis moved or reacted in any
way to the train’s whistle, which Ward testified he “just kept
blowing” prior to impact. Based on this evidence, we conclude
that Glendoria Davis raised an issue of material fact as to
whether the circumstances demonstrated that Vincent Davis would
not seek safety and whether Ward was therefore required to slow
the train.
13
Defendants argue that even if the circumstances demonstrated
Vincent Davis would not seek safety, they cannot be found
negligent because they could not have stopped the train in
sufficient time to avoid injury to Vincent Davis. In support of
this argument, defendants rely on Christen’s testimony that Ward
engaged the brakes “very shortly after” blowing the train’s
whistle and on MacRae’s report suggesting that they could not
have stopped the train in time. Glendoria Davis has presented
evidence, however, indicating that Ward had more than ten seconds
after identifying Vincent Davis to apply the brakes and avoid his
injury. Glendoria Davis further contends that the actual time
that Ward took to apply the brakes was 30.5 seconds.
Glendoria Davis has raised genuine issues of material fact
as to when Ward identified Vincent Davis, when he applied the
brakes, and whether the circumstances indicated that Vincent
Davis would not seek safety upon hearing the whistle. We
therefore reverse the district court’s grant of summary judgment
on Glendoria Davis’s claim that defendants failed to timely
identify and react to Vincent Davis’s presence on the tracks.
III. CONCLUSION
For the foregoing reasons, we AFFIRM in part, REVERSE in
part, and REMAND to the district court for further proceedings
consistent with this opinion.
14