concurring in part and dissenting in part.
The majority here affirms the grant of summary judgment to the defendants/third-party plaintiffs (the Railroad defendants). I agree with much of the majority’s analysis of the applicable legal standard, but I believe that the forecast of evidence raises genuine issues of material fact as to whether the crossing was “more than ordinarily hazardous.” Thus, I respectfully dissent.
As the majority notes, “[i]n North Carolina, railroad companies have a duty ‘to give to users of the highway warning, appropriate to the location and circumstances, that a railroad crossing lies ahead.’ ” Collins v. CSX Transportation, 114 N.C. App. 14, 18, 441 S.E.2d 150, 152 (1994) (other citations omitted). I agree with the majority that “a railroad company is negligent in failing to maintain an automatic [warning device such as gates or lights] only when the crossing is more than ordinarily hazardous.” (citing Price v. Seaboard R.R., 274 N.C. 32, 46, 161 S.E.2d 590, 600 (1968)).
The parties presented a forecast of evidence in several forms, including numerous depositions, sworn answers to discovery, affidavits and photographs, inter alia. The majority makes little mention of plaintiff’s forecast of evidence, which includes the expert depositions of Anand David Kashbekax, who visited the crossing and created a computer model to evaluate the crossing. Below are some excerpts from his testimony that, in my view, create an issue of fact as to whether the conditions at the crossing are more than ordinarily hazardous:
A: I was taking some measurements of the track and — and the train came out of the — the east early in the morning.
Q: Okay. What did you observe about it?
A: It caught me by surprise a little bit, I heard — I was on the tracks, I heard the whistle and at that time of the morning if you look to the east that time of year you’re looking straight into the sun .... It wasn’t but a few seconds later that the train crossed over that crossing.
*515A: I’ve been out there other times either taking photographs, measurements and I’ve seen not a passenger train, but the freight trains go by there at probably as little as three or four miles per hour, walking pace. So, you know, what I gather from that is, is the crossing is used by trains at various rates of speed.
Q: Any of those observations about the train movements that day have anything to do with your opinions or your computer model in this case?
A: No. Well certainly it leads me — it makes me understand how this type of accident can happen. If a person is conditioned to seeing a train come there at a few miles per hour and then all of a sudden they are going across the crossing, you got one approaching at almost seventy miles an hour, it’s a huge difference to contend with. Early in the morning obviously it’s almost — on the days I was out there, it was virtually impossible to see a train coming from the East until it’s right up on top of you .... [A] driver may think that he or she has a reasonable opportunity to cross the crossing and starts to do so and the next thing he or she knows is a train is right up on them.
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A: Assuming the train is going from east to west, she’s approaching from the south, heading north. If you’re looking over toward the east, you’ve got a hillside there, you’ve got crossbucks and other obstructions and — and it’s clear to me that at that approach rate [of the train] it’s difficult to reliably cross that crossing in a safe manner.
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A: The only thing I’ll tell you, the day I was out there I heard a train whistle. I looked both directions and I couldn’t see a train and I didn’t bother to get off the tracks until the tracks started rumbling.
Q: Okay. Because the sun was in your eyes?
A: I didn’t see the train and — and you can hear something — I was out of my car on the tracks and to the west I could see there was no train visible to me. To the east I could see a fair amount of *516track, you know, a couple hundred feet in front of me and then I was looking into the sun.
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A: Yeah, and also you’ve got a dip in those tracks that start to — to lower the tracks. The tracks and the bed actually — a section of them will disappear.
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A: I believe that from this position if you went down the tracks two thousand feet with — with an object that was the size of a train you could tell that there was something down there. Whether or not you could tell whether it was a train, a truck, crossing the other crossing or trees or what—
Q: Right.
A: —is a different story.
Q: How far away — suppose you were standing on flat railroad tracks, that are flat for three miles, looking down the tracks, how far away can you see a train coming and recognize that it’s a train, looking straight at it?
A: I — I think there are a lot of variables. It depends on the person, it depends on where the sun is.
* * * * *
A: [Y]ou got a double set of rails and it’s a particularly hazardous crossing for that reason because you got to contend with two sets of rails and — and here is a situation where somebody may get onto the crossing and a train that’s going at a hundred feet per second comes up on her and she’s faced with the decision as to whether or not to stop or try to accelerate to get out of the way and that was the — the whole intention.
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Q: Do you agree that a motorist in North Carolina should look and listen for trains from a — a point at a crossing where looking and listening will be of benefit to them?
A: To the best of their knowledge, yes. But I don’t think it’s reasonable to expect the average motorist to be able to determine always what that point is.
*517Q: Okay.
A: They — they have no idea what the train speed is. Most of them don’t convert miles per hour to feet per second in their head like we have been doing and that — but that’s the reason I think this crossing is particularly hazardous.
Taken in the light most favorable to the plaintiff, these excerpts alone create an issue of fact as to whether the crossing was more than ordinarily hazardous.
However, plaintiff forecast much more evidence than this, tending to show that the circumstances affecting a driver at the crossing could give rise to an unusually hazardous situation. For example, Ernest F. Mallard, a long-time State Department of Transportation Signals Engineer, identified many potential problems facing a motorist at the crossing, including the high volume and speed of train traffic, the double tracks, the proximity to busy Hillsborough Street, the distraction from irregular width and uneven surfaces of Bashford Road, and possible problems seeing down the tracks. In addition to these factors, the sun, dip in the tracks, obstructions, and the potential surprise created by the wide variation in train speeds, noted by Mr. Kashbekar, all could affect a reasonable motorist’s ability to judge and cross safely at a given time. Other evidence indicated that there had been at least five previous collisions at this crossing, and James McCloskey of Norfolk and Southern Railway acknowledged that “we knew about dangerous crossings, for example, this crossing.”
Thus, I believe that all of the evidence forecast creates issues of fact regarding the conditions under which trains might be viewed, as well as regarding other matters affecting the potentially hazardous nature of the crossing. This testimony, as well as other evidence, also raises genuine issues about other aspects of the conditions that might have existed on the morning of the collision, such that these issues should be for the jury.
I agree with the majority that a motorist’s view of the tracks is a material factor in determining whether a crossing is so hazardous that it triggers duties on the part of the railroad. However, in light of the forecast of evidence here, I do not agree that it is “undisputed, that a train 1500 feet away from the crossing is visible from a safe point,” or that sight distance is the only factor to be considered, as the majority implies. In addition, the majority’s statements that “the unobstructed view at the crossing permits a motorist to safely observe whether a train is approaching without using extraordinary *518protective means,” and that “the variable speeds of other trains . . . is not a condition existing at the crossing at the time when a motorist must discern whether a train is approaching,” are essentially findings of fact, which should properly be for the jury. The actual issue for the jury, moreover, involves not whether trains of variable speeds were passing at the time of the incident, but rather, whether the history of variable speeds created a peculiarly hazardous condition for the plaintiff’s decedent at this crossing. It is well-established that the role of this Court on appeal is not to resolve such disputed issues of fact.
The majority cites several cases in support of its conclusion, but in at least two of those cases, the appeal turned on whether there was evidence of gross negligence, and in Collins the issue of liability for the crossing was submitted to the jury. See Parchment v. Garner, 135 N.C. App. 312, 520 S.E.2d 100 (1999); Collins v. CSX Transportation, 114 N.C. 14, 441 S.E.2d 150 (1994). Similarly, viewing the evidence in the light most favorable to the plaintiff, I believe that we should reverse and remand, so that the case may be tried to the jury.
Accordingly, I would reverse the grant of summary judgment and remand for trial.