Saliba v. Union Pacific Railroad

Six, J.,

dissenting: I would affirm the district court. The majority bases its reversal on James Loumiet’s deposition testimony. Why should the district court be affirmed? The answer begins with identifying the issue, i.e., was the crossing unusually dangerous as a matter of law?

*138We consider the standard for summary judgment, K.S.A. 60-256, blended with the additional review requirement unique to this type of railroad crossing case: whether the evidence is sufficient to establish that the crossing is unusually dangerous, a question of law under Waits v. St. Louis-San Francisco Rly. Co., 216 Kan. 160, 167, 531 P.2d 22 (1975). Only if this standard is met, may the inquiry then turn to whether additional warnings and precautions by the railroad are necessary. See Grisamore, Administratrix v. Atchison, T. & S.F. Rly. Co., 195 Kan. 16, 403 P.2d 93 (1965). Does the evidence establish that surrounding conditions render the crossing more than ordinarily dangerous? Only if this initial Grisamore standard is met may the inquiry move on to consider “failure to maintain sufficient lights and warning signals, failure to properly position flagmen, and failure to comply with city ordinances as to flagmen and mechanical or electrical railroad signals” as questions of fact. (Emphasis added.) 195 Kan. at 23, 24.

Saliba must come forward with evidence of a hazard or condition that sets the Solomon crossing apart as more dangerous than other crossings in Kansas.

What were the conditions the night Saliba unfortunately ran into the train?

We know from the findings of the district court, acknowledged by the majority, the following facts:

(1) “The crossing was properly marked, painted and with cross-bucks.”

(2) “The plaintiff was familiar with the crossing.”

(3) “The view was unobstructed.” and

(4) “The crossing was visible, straight, flat, level and smooth.”

The majority disposes of Union Pacific’s contention that darkness does not impose a greater duty on railroads at a crossing, citing Waits, 216 Kan. 160, and Bledsoe v. M.-K.-T. Rld. Co. 149 Kan. 741, 90 P.2d 9 (1939) (railroad crossing cases in which the existence of artificial or natural illumination was considered).

I disagree with the majority’s dispatch of Union Pacific’s darkness argument. Bledsoe supports Union Pacific’s position. The car in Bledsoe hit the train shortly before midnight. The Bledsoe plaintiffs alleged that “the crossing is an especially dangerous one in the *139nighttime.” 149 Kan. at 745. The Bledsoe court said: “Examining the evidence in this case, we are unable to find anything that would justify a classification of the crossing in question as being unusually dangerous.” 149 Kan. at 747. The Bledsoe jury awarded damages for wrongful death and personal injuries. We reversed and denied recovery, stating:

“It has been said with respect to such crossings that the railroad track itself is a sign of danger, and certainly a train rightfully on the track at a crossing, is itself a sign of danger. Indeed, it is all the warning necessary to be given. There is no contention in this case that defendant’s train was not rightfully on the track. All the parties in the automobile knew the railroad crossing was there; they had driven over it less than an hour previously. A railroad company is under no duty to do more for negligent drivers of motor vehicles than it is required to do for careful ones.” 149 Kan. at 748.

Waits involved a dark night. Listing the following conditions, we affirmed the existence of an unusually dangerous crossing: (1) The railroad had failed to erect a crossbuck sign, (2) lighting conditions were bad, (3) there were no crossing lights, flashing lights, or street lights, (4) trees and shrubbery obscured the presence of the train across the intersection, (5) a boxcar on the crossing could not be seen from a distance of 200 feet, and (6) allowing for perception, reaction and braking time, a driver within the speed limit could not stop in time to avoid the train. The conditions in Waits were different than here.

A review of our past comments on darkness as a factor in railroad crossing personal injury litigation is appropriate. In Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593 (1929), Jones alleged that he did not know he was near a railroad track; he had no notice or knowledge of the obstruction; and, on account of extreme darkness, fog, and dense engine smoke, he drove his truck against the side of a freight car. Justice Burch, speaking for this court, responded: “The result is that if the night be very dark and the fog very thick and the engine smoke very dense, the driver of an auto vehicle who is just driving along the road proceeds at his own risk, unless he correlates speed and ability to stop with ability to see.” 129 Kan. at 316. Jones was cited in Adamson v. Midland Valley Railroad Company, 384 F.2d 341, 346-47 (10th Cir. 1967), *140for the proposition that the Kansas Supreme Court has expressly said that the duty owed by a railroad is not increased because of darkness. The following language from Jones, 129 Kan. at 315, was quoted by this court iñ Grisamore, 195 Kan. at 19:

“The railway company’s duty extended no further than to exercise reasonable care, and it was not required to foresee that on one night of a period of history the driver of a lawfully equipped and operating truck might be so completely engulfed in Cimmerian darkness, impenetrable fog and dense train-engine smoke that he could not apprehend a train was there, and take the extraordinary precautions necessary to protect him from projecting his truck against the side of the train.”

Jones has not been overruled. Jones was cited in Waits for the rule that a motorist at a not unusually dangerous crossing must correlate speed with an ability to stop within the range of vision. 216 Kan. at 168. Also, Sheets v. Baldwin, 146 Kan. 596, 73 P.2d 37 (1937), is of interest on the issue of darkness. The plaintiffs in Sheets recovered damages for personal injuries resulting from colliding with a train on a “very dark” night. Relying on Jones, we reversed. 146 Kan. at 599.

We reviewed a darkness allegation in another personal injuiy case, Eason v. Missouri Pacific Rld. Co., 191 Kan. 39, 379 P.2d 351 (1963). Eason alleged:

“That the box car of the defendant did not have any lights on and that it was an extremely dark night, and therefore said box car was not visible.
“That at the time defendant’s train was stopped across the Highway herein mentioned, said defendant did not have any warning signals of any kind at or near its train to warn the public or this plaintiff that it was stopped across the highway; neither did defendant have any watchman or signal man of any kind or nature to warn this plaintiff of the existing danger.”

The defendant railroad’s demurrer to the petition was overruled by the district court. We reversed, saying:

“Similar questions have been before the court many times and it is clear that under the facts alleged in this case plaintiff’s allegations not only fail to allege actionable negligence on the part of defendant but also show plaintiff to have been guilty of contributoiy negligence, barring his recovery” 191 Kan. at 41 (citing Jones, 129 Kan. 314).

*141In view of what this court has said in the past, darkness should have no role here.

The majority observes that illumination was a crossing characteristic not considered by the district court. There were no automated warning lights at the crossing. Loumiet had apparently referenced lack of illumination or lighting in an opinion which counsel used in deposing him. Saliba’s counsel represented to Union Pacific’s counsel during Loumiet’s deposition that Saliba was not claiming there should have been active warning devices or lights at the crossing. This, to me, offers an explanation of why the district court did not discuss illumination.

The majority references Loumiet’s opinion on the crossing angle. A portion of the deposition transcript reflecting the questions and Loumiet’s answers is of interest:

“Q. [by counsel for Union Pacific] . . . With regard, then, to the angle in this case, one of [the] things you said was that the angle would leave the car on the crossing longer because you’re just going to have more exposure time, does that have anything to do with this collision?
“A. In a direct sense, no.
“Q. Does it ... in an indirect sense?
“A. It has something to do with the overall safety of the grade crossing. There is the circumstances of the accident on the one hand and the overall issue of the safety of the grade [crossing] on the other.
“Q. Okay, I want to talk about the circumstances of this accident.
“A. Okay.
“Q. How this accident happened was Sam Saliba driving into the rear car. Did the angle with regard to that increasing the exposure time, did that have anything to do with causing this accident?
“A. No.
“Q. Did the fact that the, the angle was not what you would call perpendicular, did that have anything to do with Sam Saliba’s ability or, or lack of ability to observe the train?
“A. No.”

Loumiet later asked to change that answer to “yes.” The deposition continued:

“Q. Now, the angle affecting exposure time, sill [sic] your answer is no, that didn’t have anything to do with causing this accident, right?
“A. Right, right.
*142“Q. Now, the question did the angle have anything to do with Sam Saliba’s ability to observe the train, what’s your answer to that question?
“A. Probably in this case no.
“Q. Why is your answer in this case probably no?
“A. Well, because of the low speed of the train, it was probably not back far enough from the crossing such that the skew of the crossing would have forced him to look over his shoulder to see the train.”

The questioning then moved on to Saliba’s ability to see reflective materials on the flatcars.

“Q. And the thing I think you said about the angle, that the angle could maybe affect whether he was able to see the reflective material on the side of the flat cars?
“A. Yes, it may have different properties when the light source comes in at an angle as opposed to perpendicular to the reflective surface.
“Q. Do you know that one way or the other for sure or are you just guessing that it could?
“A. I don’t know for sure. I — it may or may not.
“Q. Have you done any tests or analyses to determine whether the reflective material was at all affected by whether it was strictly perpendicular 90 degrees versus an angle?
“A. No.
“Q. Or whether it could be seen any different?
“A. No, I have not.” (Emphasis added).

Loumiet’s speculative “it may or it may not” answer and absence of testing on the reflective tape falls short of creating any material issue of fact here.

We considered conclusory expert statements in another summary judgment case, McCubbin v. Walker, 256 Kan. 276, 295, 296, 886 P.2d 790 (1994). McCubbin sustained severe permanent injuries from a falling branch while trimming trees. Rische, an experienced tree trimmer, testified for McCubbin. Rische concluded that working in the trees “can be a dangerous occupation” and that because of “the inherent potential danger of the practice of trimming trees, yes, things can happen.” We reversed the Court of Appeals and affirmed the district court’s summary judgment for defendants. We said:

“Assuming that Rische had been qualified as an expert and that a proper foundation was laid for his expert opinion, neither of which is supported by this record, *143we do not find his conclusory statements standing alone sufficient to create any material question of fact for the jury.” 256 Kan. at 295.

Loumiet’s opinion on Saliba’s view, the reflective tape, and the crossing angle are more conclusory than Rische’s view on tree trimming.

The district court was correct in granting summary judgment and in finding that the surrounding conditions necessary to show a more than ordinarily dangerous crossing did not exist here.