dissenting.
There can be no breach of duty by the Soo Line unless there is a duty owed. And, the court correctly finds that “[u]nder North Dakota law, the existence of a duty is a preliminary question of law for the court.” Supra p. 474 (citing Bulman v. Hulstrand Constr. Co. Inc., 521 N.W.2d 632, 640 (N.D.1994)). Without concerning itself with whether the district court appropriately and correctly performed this initial function, the court ventures into a tangled web of perceived disputes of fact, none of which are material to the outcome of this litigation, and holds that summary judgment was improper. From this result, I dissent.
Any duty owed by the Soo Line to the Kiemeles must be considered under two lines of inquiry. First, we must analyze the duty owed, if any, with regard to the actual operation of the train. Second, we must determine the Railroad’s responsibility for the maintenance, operation and upgrade of the crossing at which the accident occurred. Unless and until the court establishes the nature and character of the duty owed, its “Breach of duty” discussion (supra pp. 474-76) is irrelevant and unnecessary.
Here, the issue of train operation is really a matter of non-operation. The train was stopped. It was at rest across U.S. Department of Transportation Crossing No. 699031G, and this designation is of some importance as I will discuss later. While the train was in this position, Rodney Kiemele drove his automobile into the side of car 112. Even though Kiemele was clearly guilty of contributory negligence as a matter of law under the undisputed material facts of this case, we need not reach that issue to affirm the district court.
Neither the court nor the Kiemeles point to any duty supported by statute, common-law principles or case law that required the Soo Line to avoid stopping the train at a grade crossing. Moreover, there was no duty to break the train apart in order to avoid blocking this or any other crossing in the vicinity, at least as far as the claims asserted by the Kiemeles are concerned.
The Kiemeles’ attempt to create a duty by showing a violation of N.D.C.C. § 49-11-19, a statute that is North Dakota’s version of the well-established “ten-minute rule.” As correctly recognized by the court, this statute is irrelevant in this situation, supra note 1, because the statute’s purpose is to facilitate traffic flow, not to prevent an automobile from running into the side of a train, moving or stopped. The court, after reaching the right legal conclusion, then, curiously, finds some relevance in the evidence of the stop to a purported' analysis of whether it might have been “reasonable” for the railroad to “separate the train” at the crossing. Supra p. 475. Unless there was a duty on the part of the Railroad to “separate the train” in these circumstances, which was not established, the reasonability of any length of stopping time is of no real consequence.
Perhaps the most problematic approach by the court is its application of preempted North Dakota statutes to question the adequacy of the warning, including adequacy of reflectivity, imparted by the devices in place at crossing No. 699031G. First, as a policy consideration, in most instances, the railroad lines have been in place well before motor cars were in widespread use. The advent of increased motor vehicle traffic over existing trackage brought about safety concerns at grade crossings. Congress, in recognition of an equitable division of responsibility for these safety problems, adopted federal legislation which, under certain circumstances, extinguishes state law duties inherent in railroad/motor vehicle grade crossings. 23 C.F.R. § 646.214(b)(3) & (4) (1995). These rules were promulgated by the Federal Highway Administration (FHWA) under the Federal Railway Safety Act of 1970 and the *479Highway Safety Act of 1973. See Elrod v. Burlington N.R.R. Co., 68 F.3d 241, 242 (8th Cir.1995). Where, as here, federally approved designs are implemented with federal money, federal preemption occurs.
There is no dispute, as shown by the Department of Transportation designation at this crossing, that the adequacy and design of the warning devices at crossing 699031G, were approved by the FHWA. Likewise, there is no material factual dispute that the approved warning devices were installed and operating through federal funding as contemplated by federal law. Thus, as indicated, when these federal regulations apply, as they do here, “ ‘state tort law is pre-empted.’ ” Id. at 244 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 670, 113 S.Ct. 1732, 1740, 123 L.Ed.2d 387 (1993)). Accordingly, the court’s use of N.D.C.C. § 24-09-03 to erect a factual reflectivity issue, in the face of the use of federally approved and implemented warning devices, violates federal preemption law. In short, there is no duty owed by the Soo Line to the Kiemeles under the undisputed material facts of this action.
There are no substantial differences between the circumstances of this case and those the court dealt with in Elrod. Any material factual disputes discerned by the court in this case are illusory. The district court was correct. Any other ruling violates the preexisting precedents of this court as established by Elrod. See also St. Louis S.W. Ry. Co. v. Malone Freight Lines, Inc., 39 F.3d 864 (8th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1963, 131 L.Ed.2d 854 (1995). I dissent.