Crewdson v. Burlington Northern Railroad

452 N.W.2d 270, 234 Neb. 631, 1990 Neb. LEXIS 72
CourtNebraska Supreme Court
DecidedMarch 9, 1990
Docket87-296
StatusPublished
Cited by53 cases

This text of 452 N.W.2d 270 (Crewdson v. Burlington Northern Railroad) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crewdson v. Burlington Northern Railroad, 452 N.W.2d 270, 234 Neb. 631, 1990 Neb. LEXIS 72 (Neb. 1990).

Opinions

Per Curiam.

Burlington Northern Railroad Company (BN) appeals a $510,000 verdict awarded by a Lancaster County jury for the wrongful death of Dan L. Crewdson.

We affirm the jury’s finding of liability on the part of BN, find the verdict excessive, and remand the cause for a new trial on damages only.

Twenty-one-year-old Dan Crewdson was killed instantly about 6:30 a.m. January 30,1984, when the car he was driving in a southerly direction on a rural road was hit broadside by an eastbound BN freight train at a railroad crossing near his home.

Marvin Crewdson, the decedent’s personal representative [634]*634and father, filed a wrongful death action against BN, alleging that the railroad was negligent. The jury found that BN was negligent, and its damage award was to compensate for the expense of Dan Crewdson’s funeral and burial and pecuniary loss to his next of kin by reason of Crewdson’s death.

BN assigns 10 errors, which may be summarized as that the trial court erred: (1) in failing to sustain BN’s motions for a directed verdict and for judgment notwithstanding the verdict, based upon the insufficiency of evidence and alleged contributory negligence of the decedent; (2) in three evidentiary rulings; (3) in its instructions to the jury; and (4) in not vacating the damages award as excessive.

In reviewing a civil case, this court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, which is entitled to every reasonable inference deducible from the evidence. A civil verdict will not be disturbed unless clearly wrong. Blanchette v. Keith Cty. Bank & Trust Co., 231 Neb. 628, 437 N.W.2d 488 (1989); Fisher Corp. v. Consolidated Freightways, 230 Neb. 832, 434 N.W.2d 17 (1989).

Taking the view most favorable to the plaintiff, a jury could find by a preponderance of the evidence the following:

At the time Dan Crewdson was killed, it was cold and dark. The accident occurred at a grade crossing consisting of a two-lane gravel road running north and south which was intersected by four sets of railroad tracks running east and west. The crossing was not protected by warning lights or gates. The crossbuck warning sign north of the crossing had been broken for a number of years.

The Crewdson family home was located about 1,000 feet north of the railroad crossing. Dan Crewdson, who lived with his parents, used the crossing several times a day. On the morning of the collision, Crewdson and his fiancee, Jody Jones, left the Crewdson home about the same time, but in separate vehicles. Jones left first, and was traveling 5 to 10 seconds in front of the decedent.

At the time of the collision, a 1 V4-mile-long coal train, headed east, was parked about 17 feet west of the crossing on the second track Crewdson needed to cross. As Crewdson [635]*635attempted to cross the third track, his vehicle was struck by an eastbound Portland Birmingham Freight (PBF) traveling 55 m.p.h. The decedent’s vehicle was assumed by plaintiff’s expert to be traveling at about 5 m.p.h.

Jones, who safely crossed the tracks in front of Crewdson, testified she thought her fiance was using his car’s heater fan and was listening to the radio at the time of the collision. It is undisputed that the PBF began sounding its whistle one quarter of a mile from the crossing.

BN first assigns as error the trial court’s failure to sustain its motions for a directed verdict at the close of the plaintiff’s case and at the close of all the evidence and its motion for judgment notwithstanding the verdict.

A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law. In reviewing a directed verdict, the party against whom a motion for a direction of liability is made is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the party against whom the motion is made, the case may not be decided as a matter of law. Commerce Sav. Scottsbluff v. F.H. Schafer Elev., 231 Neb. 288, 436 N.W.2d 151 (1989).

From the evidence, the jury could, and obviously did, find that BN was negligent in one or more of the following particulars: in failing to (1) provide adequate warning at an extrahazardous crossing when a parked coal train obstructed Dan Crewdson’s view of an approaching train, (2) follow its own rule of not allowing a train to stand within 200 feet of a public crossing; (3) adequately flag the crossing; (4) keep an adequate lookout for motor vehicles approaching the crossing; (5) provide adequate warning with the locomotive whistle; and (6) provide flashing signals, gates, or other signals to adequately protect approaching motorists.

DECEDENT’S ALLEGED CONTRIBUTORY NEGLIGENCE

BN claims its motions for a directed verdict should have been [636]*636sustained because Dan Crewdson was contributorily negligent as a matter of law in a degree more than slight and sufficient to bar recovery. The appellant argues that Crewdson had a duty to look and listen for the train and to keep his car under such control that he could stop to avoid a collision. The railroad claims that the parked coal train is not evidence of negligence, but that it heightened Crewdson’s duty because his vision was obstructed. Because Crewdson did not stop to avoid the collision, and because he was using his car’s heater fan and radio, BN asserts that Crewdson was sufficiently contributorily negligent to bar plaintiff’s recovery as a matter of law.

A motorist approaching a railroad crossing has a duty to look and listen at a time and place where looking and listening will be effective to prevent an accident. Such motorist also has a duty to stop where a reasonably prudent person would have considered a stop necessary under the circumstances. See Anderson v. Union Pacific RR. Co., 229 Neb. 321, 426 N.W.2d 518 (1988). See, also, Neb. Rev. Stat. § 39-655 (Reissue 1988); Neusbaum v. Chicago & N. W. Ry. Co., 162 Neb. 754, 77 N.W.2d 299 (1956); Crabtree v. Missouri P.R. Co., 86 Neb. 33, 124 N.W. 932 (1910).

Failure to observe these rules may be evidence of negligence; however, it is not contributory negligence as a matter of law. If there is a reasonable excuse for not seeing an approaching train, such as an obstruction preventing one from seeing the train or a distraction diverting the attention, the question whether conduct in traversing a railroad crossing is reasonable is a matter for the jury. Anderson v. Union Pacific RR. Co., supra.

In Anderson v. Union Pacific RR. Co., supra,

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Bluebook (online)
452 N.W.2d 270, 234 Neb. 631, 1990 Neb. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crewdson-v-burlington-northern-railroad-neb-1990.