[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 07/26/99 THOMAS K. KAHN No. 98-8886 CLERK ________________________
D. C. Docket No. 2: 95-CV-41-WCO
CSX TRANSPORTATION, INC.,
Plaintiff-Counter-Defendant- Appellee,
versus
TRISM SPECIALIZED CARRIERS, INC.,
Defendant-Counter-Claimant- Appellant,
CONTINENTAL INSURANCE COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia _________________________ (July 26, 1999)
Before COX, Circuit Judge, FAY, Senior Circuit Judge, and NANGLE*, Senior District Judge.
___________________ *Honorable John F. Nangle, Senior U.S. District Judge for the Eastern District of Missouri, sitting by designation. PER CURIAM: This appeal from the grant of judgment on the pleadings for the plaintiff-cross-
defendant involves a negligence action arising from a collision between a tractor-
trailer and a train on Georgia’s Cedar Creek Road grade crossing. Because the
Georgia courts have interpreted O.C.G.A. §§ 32-6-50 and 32-6-51 to abrogate the
railroad’s duty to install warning devices at railroad crossings, we find no error and
affirm.
FACTS AND BACKGROUND
This litigation arises out of a collision between a Trism Specialized Carriers
(Trism) tractor-trailer and a CSX Transportation (CSXT) locomotive. The facts
relevant to the disposition of this case are as follows.
Rodney Russell, an employee of Trism, was delivering a piece of machinery to
a Ford dealership in Barrow County Georgia. The route Mr. Russell followed caused
him to travel east on Georgia’s Highway 8, and then head north on Cedar Creek Road.
As Mr. Russell made his left turn to head south on Cedar Creek Road, he crossed over
the railroad tracks for the first time. These tracks run parallel to, and are just north of,
Highway 81.
Mr. Russell proceeded to the Ford dealership, dropped off the piece of
machinery, and turned the tractor-trailer around to head back south on Cedar Creek
1 Georgia’s Highway 8 runs in an east-west direction. Similarly, the railroad tracks run in an east-west direction and are located just north of Highway 8. Cedar Creek Road dissects both the railroad tracks and Highway 8, running north and south.
2 Road. As he approached the railroad tracks for the second time, just north of Highway
8, Mr. Russell brought his vehicle to a halt to look for an oncoming train. The Cedar
Creek Road grade crossing has a single cross-buck at the intersection, but there are no
bells, signal lights or other device to warn of an approaching train. As Mr. Russell
saw nothing to indicate the presence of an approaching train, he proceeded to cross
the tracks. After driving onto the train tracks, Mr. Russell first noticed the CSXT train
approaching from the west or right hand side. He accelerated in attempt to clear the
vehicle, but was only able get the cab portion of the tractor-trailer clear of the
oncoming train. The flatbed was struck and the collision resulted in a major train
derailment.
On March 23, 1995, CSXT filed suit against Trism and The Continental
Insurance Company, Trism’s insurer, claiming the derailment and resulting damage
was a result of Trism’s negligence. In response, Trism asserted the defense of
contributory negligence and filed a counterclaim contending CSXT’s negligent failure
to install adequate warning devices and signals at the Cedar Creek Road grade
crossing was the cause of the collision. The case proceeded to trial and at the close
of all evidence, CSXT moved for judgment as a matter of law on its complaint and on
Trism’s counterclaim. The district judge denied CSXT’s motion with respect to its
complaint. With respect to Trism’s counterclaim, however, the district judge entered
judgement for CSXT ruling that Georgia statutory law overruled any common law
duty to install warning devices or signals at the Cedar Creek Road grade crossing.
3 Trism filed this appeal, claiming the latter ruling by the district judge was erroneous.
DISCUSSION
The issue before this Court is whether §§ 32-6-50 and 32-6-51of the Georgia
Code of Public Transportation (GCPT) work in conjunction to abrogate a railroad’s
common law duty to install devices to warn of approaching trains at grade crossings.
After review of the statutes involved and the pertinent case law as announced by the
Georgia state courts, we hold that they do.
As a federal court sitting in diversity, we are required to apply the law as
declared by the state’s highest court. Erie R.R. Co. v. Tompkins, 58 S.Ct. 817, 822,
304 U.S. 64, 78, 82 L.Ed. 1188 (1938). The Georgia Supreme Court, however, has
not answered whether the railroad’s common law duty to install warning devices at
grade crossings survives the enactment of the GCPT. In the absence of authority
directly on point, we must determine the issues of state law as we believe the Georgia
Supreme Court would. See Towne Realty, Inc. v. Safeco Ins. Co. of Am., 854 F.2d
1264, 1269 (11th Cir. 1988).
Trism argues, and we acknowledge, that Georgia law is replete with case law
recognizing a railroad’s duty to alert drivers of the danger of an oncoming train at
grade crossings. See, e.g., Central of Georgia Ry. Co. v. Larsen, 91 S.E. 517 (Ga.
App. 1917); Southern Ry. Co. v. Lowry, 200 S.E. 553 (Ga. App. 1927); Ison v.
Schettino 199 S.E.2d 89(Ga. App. 1973). Even after the GCPT was enacted, the
4 Georgia courts recognized liability for railroad companies who failed to install
adequate devices to warn of the danger of an approaching train. See Central of
Georgia R.R. Co. v. Markert, 410 S.E.2d 437 (Ga.App. 1991); Wall v. Southern Ry.
Co., 396 S.E.2d 266 (Ga. App. 1990); Southern Ry. Co. v. Georgia Kraft Co., 373
S.E.2d 774, 776 (Ga. App. 1988)(overruled by Evans Timber Co. Inc. v. Central of
Georgia R.R. Co., (Ga.App. 1999)). These cases, however, relied on precedent
decided prior to the enactment of the GCPT and neglected to consider §§ 32-6-50 and
32-6-51's effect on the common law.2 Therefore, we turn to the decisions of the
Georgia Supreme Court in Kitchen v. CSX Transportation, Inc., 453 S.E.2d 712 (Ga.
2 Section 32-6-50 of the GCPT places the duty to install warning devices on the governmental body responsible for the road that crosses the railroad tracks by stating, in pertinent part: (a)The department shall promulgate uniform regulations governing the erection and maintenance on the public roads of Georgia of signs, signals, markings, or other traffic-control devices, such uniform regulations to supplement and be consistent with the laws of this state.
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 07/26/99 THOMAS K. KAHN No. 98-8886 CLERK ________________________
D. C. Docket No. 2: 95-CV-41-WCO
CSX TRANSPORTATION, INC.,
Plaintiff-Counter-Defendant- Appellee,
versus
TRISM SPECIALIZED CARRIERS, INC.,
Defendant-Counter-Claimant- Appellant,
CONTINENTAL INSURANCE COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia _________________________ (July 26, 1999)
Before COX, Circuit Judge, FAY, Senior Circuit Judge, and NANGLE*, Senior District Judge.
___________________ *Honorable John F. Nangle, Senior U.S. District Judge for the Eastern District of Missouri, sitting by designation. PER CURIAM: This appeal from the grant of judgment on the pleadings for the plaintiff-cross-
defendant involves a negligence action arising from a collision between a tractor-
trailer and a train on Georgia’s Cedar Creek Road grade crossing. Because the
Georgia courts have interpreted O.C.G.A. §§ 32-6-50 and 32-6-51 to abrogate the
railroad’s duty to install warning devices at railroad crossings, we find no error and
affirm.
FACTS AND BACKGROUND
This litigation arises out of a collision between a Trism Specialized Carriers
(Trism) tractor-trailer and a CSX Transportation (CSXT) locomotive. The facts
relevant to the disposition of this case are as follows.
Rodney Russell, an employee of Trism, was delivering a piece of machinery to
a Ford dealership in Barrow County Georgia. The route Mr. Russell followed caused
him to travel east on Georgia’s Highway 8, and then head north on Cedar Creek Road.
As Mr. Russell made his left turn to head south on Cedar Creek Road, he crossed over
the railroad tracks for the first time. These tracks run parallel to, and are just north of,
Highway 81.
Mr. Russell proceeded to the Ford dealership, dropped off the piece of
machinery, and turned the tractor-trailer around to head back south on Cedar Creek
1 Georgia’s Highway 8 runs in an east-west direction. Similarly, the railroad tracks run in an east-west direction and are located just north of Highway 8. Cedar Creek Road dissects both the railroad tracks and Highway 8, running north and south.
2 Road. As he approached the railroad tracks for the second time, just north of Highway
8, Mr. Russell brought his vehicle to a halt to look for an oncoming train. The Cedar
Creek Road grade crossing has a single cross-buck at the intersection, but there are no
bells, signal lights or other device to warn of an approaching train. As Mr. Russell
saw nothing to indicate the presence of an approaching train, he proceeded to cross
the tracks. After driving onto the train tracks, Mr. Russell first noticed the CSXT train
approaching from the west or right hand side. He accelerated in attempt to clear the
vehicle, but was only able get the cab portion of the tractor-trailer clear of the
oncoming train. The flatbed was struck and the collision resulted in a major train
derailment.
On March 23, 1995, CSXT filed suit against Trism and The Continental
Insurance Company, Trism’s insurer, claiming the derailment and resulting damage
was a result of Trism’s negligence. In response, Trism asserted the defense of
contributory negligence and filed a counterclaim contending CSXT’s negligent failure
to install adequate warning devices and signals at the Cedar Creek Road grade
crossing was the cause of the collision. The case proceeded to trial and at the close
of all evidence, CSXT moved for judgment as a matter of law on its complaint and on
Trism’s counterclaim. The district judge denied CSXT’s motion with respect to its
complaint. With respect to Trism’s counterclaim, however, the district judge entered
judgement for CSXT ruling that Georgia statutory law overruled any common law
duty to install warning devices or signals at the Cedar Creek Road grade crossing.
3 Trism filed this appeal, claiming the latter ruling by the district judge was erroneous.
DISCUSSION
The issue before this Court is whether §§ 32-6-50 and 32-6-51of the Georgia
Code of Public Transportation (GCPT) work in conjunction to abrogate a railroad’s
common law duty to install devices to warn of approaching trains at grade crossings.
After review of the statutes involved and the pertinent case law as announced by the
Georgia state courts, we hold that they do.
As a federal court sitting in diversity, we are required to apply the law as
declared by the state’s highest court. Erie R.R. Co. v. Tompkins, 58 S.Ct. 817, 822,
304 U.S. 64, 78, 82 L.Ed. 1188 (1938). The Georgia Supreme Court, however, has
not answered whether the railroad’s common law duty to install warning devices at
grade crossings survives the enactment of the GCPT. In the absence of authority
directly on point, we must determine the issues of state law as we believe the Georgia
Supreme Court would. See Towne Realty, Inc. v. Safeco Ins. Co. of Am., 854 F.2d
1264, 1269 (11th Cir. 1988).
Trism argues, and we acknowledge, that Georgia law is replete with case law
recognizing a railroad’s duty to alert drivers of the danger of an oncoming train at
grade crossings. See, e.g., Central of Georgia Ry. Co. v. Larsen, 91 S.E. 517 (Ga.
App. 1917); Southern Ry. Co. v. Lowry, 200 S.E. 553 (Ga. App. 1927); Ison v.
Schettino 199 S.E.2d 89(Ga. App. 1973). Even after the GCPT was enacted, the
4 Georgia courts recognized liability for railroad companies who failed to install
adequate devices to warn of the danger of an approaching train. See Central of
Georgia R.R. Co. v. Markert, 410 S.E.2d 437 (Ga.App. 1991); Wall v. Southern Ry.
Co., 396 S.E.2d 266 (Ga. App. 1990); Southern Ry. Co. v. Georgia Kraft Co., 373
S.E.2d 774, 776 (Ga. App. 1988)(overruled by Evans Timber Co. Inc. v. Central of
Georgia R.R. Co., (Ga.App. 1999)). These cases, however, relied on precedent
decided prior to the enactment of the GCPT and neglected to consider §§ 32-6-50 and
32-6-51's effect on the common law.2 Therefore, we turn to the decisions of the
Georgia Supreme Court in Kitchen v. CSX Transportation, Inc., 453 S.E.2d 712 (Ga.
2 Section 32-6-50 of the GCPT places the duty to install warning devices on the governmental body responsible for the road that crosses the railroad tracks by stating, in pertinent part: (a)The department shall promulgate uniform regulations governing the erection and maintenance on the public roads of Georgia of signs, signals, markings, or other traffic-control devices, such uniform regulations to supplement and be consistent with the laws of this state. (b)In conformity with its uniform regulations, the department shall place and maintain, or cause to be placed and maintained, such traffic-control devices upon the public roads of the state highway system as it shall deem necessary to regulate, warn, or guide traffic, except that the department shall place and maintain a sign for each railroad crossing at grade on the state highway system, warning motorists of such crossing, provided that each railroad company shall also erect and maintain a railroad crossbuck sign on its right of way at every such crossing. (c)In conformity with the uniform regulations of the department, counties and municipalities shall place and maintain upon the public roads of their respective public road systems such traffic-control devices as are necessary to regulate, warn, or guide traffic except that counties and municipalities also shall erect and maintain a sign for each railroad crossing at grade on their respective county road or municipal street systems, warning motorists of such crossing. Furthermore, each railroad company shall erect and maintain a railroad crossbuck sign on its right of way at all such crossings. O.C.G.A. § 32-6-50 (a)-(c). Section 32-6-51(a), in addition, makes that duty exclusively that of the government by prohibiting the railroad from erecting any sign or signal other than a crossbuck, providing: (a)It shall be unlawful for any person to erect, place, or maintain within the right of way of any public road any sign, signal, or other device except as authorized by subsection (d) of this code or as required or authorized by Code Section 32-6-50 or any other law. O.C.G.A. § 32-6-51(a).
5 1995) and the Georgia Court of Appeals in Evans Timber Co. Inc. v. Central of
Georgia R.R. Co., (Ga.App. 1999) as they provide a better barometer for forecasting
the law as would be decided by the Supreme Court of Georgia.
In Kitchen, the Georgia Supreme Court held that under the GCPT, the
“statutory duty to maintain the public road and any other warning device [on which
an overpass had been removed] was exclusively that of the county....” Kitchen, 453
S.E.2d at 714. Although that is not precisely the issue before this court, the case is
important because the Georgia Supreme Court noted that their conclusion was
“bolstered by OCGA §§ 32-6-50 and 32-6-51(a), which place the exclusive duty in
the governmental body to install and maintain traffic control devices on public roads
(including railroad crossings), and which statutorily prohibit private entities, including
railroads, from placing traffic control devices on public roads.” Kitchen, 453 S.E.2d
at 714 n.6. While this statement may be considered dicta, it is particularly insightful
as it directly speaks to the issue we address today.
Moreover, the Kitchen decision caused the Georgia Court of Appeals to revisit
the application of the GCPT to the common law cause of action for a railroad’s
negligent failure to install warning devices at grade crossings. In Evans Timber, a
claim was filed against a railroad company alleging the railroad was negligent in
“failing to install warning devices, such as gates, lights, or bells, at the grade crossing
to warn motorists of approaching trains.” Evans Timber. That court held that the trial
court properly granted the railroad’s motion for directed verdict, holding that §§ 32-6-
6 50 and 32-6-51(a) “clearly delegated responsibility for the public road, including
traffic control devices, warning signals, and protective devices to the governmental
entities and removed any such responsibility from private parties.” Evans Timber.
Without some persuasive indication that the state’s highest court would rule
otherwise, we are bound to apply the law as decided by the Georgia Court of Appeals.
See Silverberg v. Paine, Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir.
1983)(stating a federal court is required to follow intermediate state court’s decision
absent some clear indication the state’s highest court would rule otherwise).
In light of the above decisions, we are convinced that the district court correctly
ruled that §§ 32-6-50 and 32-6-51(a) of the GCPT statutorily overrule the state
common law cause of action against railroads for negligent failure to install adequate
warning devices at public grade crossings.3 Accordingly, we find no error.
AFFIRMED.
3 We recognize, as argued by counsel for Trism, that such an action by the Georgia Legislature is surprising; however, if this result is contrary to the intent of the legislative branch it can be corrected rather quickly. As a federal court bound by state law, we are obliged to apply these statutes in accord with the interpretations rendered by the state court of appeals.