No. 81-420 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982
JACK HENRY et al., Relator, VS.
DISTRICT COURT OF THE SEVENTEENTH JUDICIAL DISTRICT, et al., Respondent.
ORIGINAL PROCEEDING: Counsel of Record: For Relators: Hoyt and Trieweiler, Great Falls, Montana John Hoyt argued, Great Falls, Montana Goetz, Madden & Dunn, Bozeman, Montana For Respondents: Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana
Submitted: January 11, 1982 Decided: 36. fin
Filed. EB 2 5 1982 Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is a case involving a petition for a writ of supervisory control and a motion for stay of proceedings. 'The case initially arose in the District Court of the Seventeenth Judicial District of the State of Montana, in and for the County of Phillips. A claim was filed in District Court against Burlington Northern, Inc., et al. (hereinafter BN) on June 4, 1979. The claim alleged that B N 1 s negligence at the west Dodson railroad crossing resulted in the injuries sustained by the relator, Jack Henry, and caused the death of his wife, Lorene Henry. There were several alleged "acts" com- mitted by BN that were the bases of the negligence claim. These acts included: permitting hay to be stacked near a crossing; failing to sound a proper warning whistle; and failing to equip its locomotive with an oscillating head- light and a strobe light. On April 30, 1981, BN filed a motion in Limine in the District Court. The motion requested the court to enjoin the relator, his witnesses, and his counsel. from mentioning anything about locomotive mounted warning devices, either visual or audible, other than those used on the locomotive in question. The District Court granted the motion, stating: "Burlington Northern's only duty in this case with respect to audible and visual warning devices on this locomotive at the time of the accident was to comply with the applicable regulations on the subject. The jury will not be permitted to deliberate on whether Burlington Northern had a duty to equip its engine in accordance with the standard exceeding those set by the regulations. "The Court finds that the federal government, pursuant to its plenary powers in the field of interstate commerce, has seen fit to pre- empt state action in determining the standard of care or duty required of the BN railroad insofar as equipping its railway engines with audible and visual warning devices is con- cerned. " At the same time the District Court stayed the pro- ceedings to allow the relator to file a writ of supervisory control so that this Court could review the propriety of the District Court's order. This Court issued an order on October 2, 1981, directing BN to respond to the relator's application for the writ of supervisory control. Shortly thereafter, on October 7, 1981, B 1 filed a 1 motion for stay of proceedings in this Court pending a decision by the United States Court of Appeals for the Ninth Circuit in the case of Mary Marshall, etc. v. Burlington Northern, Inc., Case No. CA, Docket No. 81-3161. This Court then ordered in pertinent part: "1. That respondents file their response and brief to relator's application for writ of supervisory control in this Court on or before October 30, 1981. "2. That relator file his response and brief to respondents' motion to stay proceedings on or before October 30, 1981. "3. That each party thereafter have to and including November 13, 1981, in which to file reply memoranda to the adverse party's responsive briefs. Relator's reply memorandum shall relate solely to issues raised on his application for supervisory control. Respon- dents' reply memorandum shall relate solely to issues raised on its motion for stay of proceedings. "4. The parties shall serve copies of all documents filed upon counsel of record. "5. All matters now pending in this cause are held in abeyance pending further order of this Court . . ." As a result of these orders, it is now necessary that this Court address both the motion to stay the proceedings and the application for the writ of supervisory control.
The r e l a t o r h a s r a i s e d a f u r t h e r i s s u e r e g a r d i n g t h e admis-
s i o n of e v i d e n c e of other accidents. However, this issue
was n o t p r e s e n t e d t o t h e D i s t r i c t C o u r t f o r a d e t e r m i n a t i o n
a n d , t h e r e f o r e , w i l l n o t be a d d r e s s e d i n t h i s i n s t a n c e .
Therefore, t h e i s s u e s presented f o r review a r e :
1. Whether federal leg i s l a t i o n has preempted the
s t a t e fro11 i m p o s i n g a common-law d u t y on r a i l r o a d c a r r i e r s
to have additional warning devices mounted on their
locomotives?
2. Whether the proceedings i n t h i s case should be
stayed until the United States Court of Appeals for the
N i n t h C i r c u i t r e n d e r s a d e c i s i o n on t n e i s s u e o f p r e e m p t i o n ?
BN c o n t e n d s t h a t C o n g r e s s , through t h e Federal Kail-
way S a f e t y A c t , 45 U.S.C. §§421-444, and t h e B o i l e r I n s p e c -
t i o n Act, 45 U.S.C. g22-23, S28-43, h a s preempted a l l s t a t e
s t a n d a r d s , s t a t u t e s and common-law d o c t r i n e s a f f e c t i n g r a i l -
road safety. I t contends t h a t the s t a t e s cannot, without
narrow e x c e p t i o n s , i n t e r f e r e w i t h t h e f e d e r a l government i n
t h e a r e a o f i n t e r s t a t e commerce. T h e r e f o r e , BN c o n t e n d s , a s
t h e D i s t r i c t Court h e l d , that ". . . B u r l i n g t o n IIJorthern's
only duty i n t h i s case with r e s p e c t t o a u d i b l e and v i s u a l
w a r n i n g d e v i c e s on t h i s l o c o m o t i v e a t t h e t i m e of the acci-
d e n t was t o comply w i t h t h e a p p l i c a b l e f e d e r a l r e g u l a t i o n s
on t h e s u b j e c t , " and t h a t " [ t l h e j u r y w i l l n o t be p e r m i t t e d
t o d e l i b e r a t e on w h e t h e r B u r l i n g t o n N o r t h e r n had a d u t y t o
equip its engine in accordance with a standard exceeding
t h o s e s e t by t h e r e g u l a t i o n s . "
Respondent's c o n t e n t i o n and the District Court's
r u l i n g a r e c o n t r a r y t o t h e c a s e law o f Montana. I n Kunkle v. Burlington Northern (1980), I4ont. -, 613 P.2d 982, 37 St.Rep. 995, this Court held: "Thus it may not be enough for the railroad to protect its crossing with a standard crossbuck, to operate a train within a speed limit or to blow the whistle and ring the bell. The jury is still permitted to --------------------- a u t i o n u n d e r t h e d e t e r m i n e w h e t h e r t h e railroad exercised ..................................... reasonable c a r e and c circumstances and conditions existing at the time of t; accident. Whether a railroad is h neqligent in a particular manner, such as in - failing to provide automatic crossing gates, -- oscillating headlights, flasher lights, or in failing to reduce its speed is a z e s t i o n of fact for the jury." 613 P.2d at 991. (Empha- sis supplied. ) It is clear from the language in Runkle that a jury should be permitted to deliberate on whether BJ had a common-law I duty to equip its locomotive with various warning devices. Montana is not the only jurisdiction that has ruled in this manner. The Supreme Court of Arizona held in DeElena v. Southern Pac. Co. (1979), 121 Ariz. 563, 592 P.2d
". . .
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No. 81-420 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982
JACK HENRY et al., Relator, VS.
DISTRICT COURT OF THE SEVENTEENTH JUDICIAL DISTRICT, et al., Respondent.
ORIGINAL PROCEEDING: Counsel of Record: For Relators: Hoyt and Trieweiler, Great Falls, Montana John Hoyt argued, Great Falls, Montana Goetz, Madden & Dunn, Bozeman, Montana For Respondents: Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana
Submitted: January 11, 1982 Decided: 36. fin
Filed. EB 2 5 1982 Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is a case involving a petition for a writ of supervisory control and a motion for stay of proceedings. 'The case initially arose in the District Court of the Seventeenth Judicial District of the State of Montana, in and for the County of Phillips. A claim was filed in District Court against Burlington Northern, Inc., et al. (hereinafter BN) on June 4, 1979. The claim alleged that B N 1 s negligence at the west Dodson railroad crossing resulted in the injuries sustained by the relator, Jack Henry, and caused the death of his wife, Lorene Henry. There were several alleged "acts" com- mitted by BN that were the bases of the negligence claim. These acts included: permitting hay to be stacked near a crossing; failing to sound a proper warning whistle; and failing to equip its locomotive with an oscillating head- light and a strobe light. On April 30, 1981, BN filed a motion in Limine in the District Court. The motion requested the court to enjoin the relator, his witnesses, and his counsel. from mentioning anything about locomotive mounted warning devices, either visual or audible, other than those used on the locomotive in question. The District Court granted the motion, stating: "Burlington Northern's only duty in this case with respect to audible and visual warning devices on this locomotive at the time of the accident was to comply with the applicable regulations on the subject. The jury will not be permitted to deliberate on whether Burlington Northern had a duty to equip its engine in accordance with the standard exceeding those set by the regulations. "The Court finds that the federal government, pursuant to its plenary powers in the field of interstate commerce, has seen fit to pre- empt state action in determining the standard of care or duty required of the BN railroad insofar as equipping its railway engines with audible and visual warning devices is con- cerned. " At the same time the District Court stayed the pro- ceedings to allow the relator to file a writ of supervisory control so that this Court could review the propriety of the District Court's order. This Court issued an order on October 2, 1981, directing BN to respond to the relator's application for the writ of supervisory control. Shortly thereafter, on October 7, 1981, B 1 filed a 1 motion for stay of proceedings in this Court pending a decision by the United States Court of Appeals for the Ninth Circuit in the case of Mary Marshall, etc. v. Burlington Northern, Inc., Case No. CA, Docket No. 81-3161. This Court then ordered in pertinent part: "1. That respondents file their response and brief to relator's application for writ of supervisory control in this Court on or before October 30, 1981. "2. That relator file his response and brief to respondents' motion to stay proceedings on or before October 30, 1981. "3. That each party thereafter have to and including November 13, 1981, in which to file reply memoranda to the adverse party's responsive briefs. Relator's reply memorandum shall relate solely to issues raised on his application for supervisory control. Respon- dents' reply memorandum shall relate solely to issues raised on its motion for stay of proceedings. "4. The parties shall serve copies of all documents filed upon counsel of record. "5. All matters now pending in this cause are held in abeyance pending further order of this Court . . ." As a result of these orders, it is now necessary that this Court address both the motion to stay the proceedings and the application for the writ of supervisory control.
The r e l a t o r h a s r a i s e d a f u r t h e r i s s u e r e g a r d i n g t h e admis-
s i o n of e v i d e n c e of other accidents. However, this issue
was n o t p r e s e n t e d t o t h e D i s t r i c t C o u r t f o r a d e t e r m i n a t i o n
a n d , t h e r e f o r e , w i l l n o t be a d d r e s s e d i n t h i s i n s t a n c e .
Therefore, t h e i s s u e s presented f o r review a r e :
1. Whether federal leg i s l a t i o n has preempted the
s t a t e fro11 i m p o s i n g a common-law d u t y on r a i l r o a d c a r r i e r s
to have additional warning devices mounted on their
locomotives?
2. Whether the proceedings i n t h i s case should be
stayed until the United States Court of Appeals for the
N i n t h C i r c u i t r e n d e r s a d e c i s i o n on t n e i s s u e o f p r e e m p t i o n ?
BN c o n t e n d s t h a t C o n g r e s s , through t h e Federal Kail-
way S a f e t y A c t , 45 U.S.C. §§421-444, and t h e B o i l e r I n s p e c -
t i o n Act, 45 U.S.C. g22-23, S28-43, h a s preempted a l l s t a t e
s t a n d a r d s , s t a t u t e s and common-law d o c t r i n e s a f f e c t i n g r a i l -
road safety. I t contends t h a t the s t a t e s cannot, without
narrow e x c e p t i o n s , i n t e r f e r e w i t h t h e f e d e r a l government i n
t h e a r e a o f i n t e r s t a t e commerce. T h e r e f o r e , BN c o n t e n d s , a s
t h e D i s t r i c t Court h e l d , that ". . . B u r l i n g t o n IIJorthern's
only duty i n t h i s case with r e s p e c t t o a u d i b l e and v i s u a l
w a r n i n g d e v i c e s on t h i s l o c o m o t i v e a t t h e t i m e of the acci-
d e n t was t o comply w i t h t h e a p p l i c a b l e f e d e r a l r e g u l a t i o n s
on t h e s u b j e c t , " and t h a t " [ t l h e j u r y w i l l n o t be p e r m i t t e d
t o d e l i b e r a t e on w h e t h e r B u r l i n g t o n N o r t h e r n had a d u t y t o
equip its engine in accordance with a standard exceeding
t h o s e s e t by t h e r e g u l a t i o n s . "
Respondent's c o n t e n t i o n and the District Court's
r u l i n g a r e c o n t r a r y t o t h e c a s e law o f Montana. I n Kunkle v. Burlington Northern (1980), I4ont. -, 613 P.2d 982, 37 St.Rep. 995, this Court held: "Thus it may not be enough for the railroad to protect its crossing with a standard crossbuck, to operate a train within a speed limit or to blow the whistle and ring the bell. The jury is still permitted to --------------------- a u t i o n u n d e r t h e d e t e r m i n e w h e t h e r t h e railroad exercised ..................................... reasonable c a r e and c circumstances and conditions existing at the time of t; accident. Whether a railroad is h neqligent in a particular manner, such as in - failing to provide automatic crossing gates, -- oscillating headlights, flasher lights, or in failing to reduce its speed is a z e s t i o n of fact for the jury." 613 P.2d at 991. (Empha- sis supplied. ) It is clear from the language in Runkle that a jury should be permitted to deliberate on whether BJ had a common-law I duty to equip its locomotive with various warning devices. Montana is not the only jurisdiction that has ruled in this manner. The Supreme Court of Arizona held in DeElena v. Southern Pac. Co. (1979), 121 Ariz. 563, 592 P.2d
". . . whether a railroad is negligent j.n a particular manner, such as failing to provide automatic crossing gates, is a question of fact for the jury. ". . . Ordinarily the issue of the negligence in crossing cases, whether the railroad was negligent in the design and maintenance of the crossing or in the operation of the train, is one of fact as in other negligence cases. (Id. [Peri v. L.A. Junction Ry., 22 Cal.2dI at 120, 137 P.2d 441; Wilkinson v. Southern Pacific Co., 224 Cal.App.2d 478, 487-488, 36 Cal.Rptr. 689). . . "A railroad company-- not necessarily free is fyom negligence, e v-------g------- ----- e n t h o u h i t may h a v e - literally complied with safety statutes or rules; the circumstances may require it to do more. (Hogue v. Southern Pacific Co., supra, 1 Cal.3d at 258, 81 Cal.Rptr. 765, 460 P.2d 965) .. ." 592 P.2d at 762. (Emphasis sup- plied.) Also see, Seaboard Coast Line R. Co. v. Buchman (F1a.App. 1 9 7 8 ) , 358 S o . 2 d 8 3 6 .
Respondent's contention that this case involves
preemption is misplaced. The d o c t r i n e o f preemption d e a l s
w i t h f e d e r a l and s t a t e r e l a t i o n s u n d e r t h e Supremacy C l a u s e
o f A r t i c l e X I of t h e United S t a t e s C o n s t i t u t i o n . There i s
no c o n f l i c t in this case between a federal s t a t u t e and a
state statute. F u r t h e r , by a l l o w i n g a j u r y t o d e t e r m i n e i f
the BN violated its common-law duty, this Court is not
implementing i t s own s t a n d a r d . The F e d e r a l R a i l w a y S a f e t y
Act, 45 U.S.C. SS421-444, provides that engines must be
e q u i p p e d w i t h a h e a d l i g h t which w i l l i l l u m i n a t e a p e r s o n on
t h e t r a c k s a t a d i s t a n c e o f 800 f e e t . No f e d e r a l e n a c t m e n t
governs warning s y s t e m s on t h e e n g i n e s . The p r o o f sought
h e r e t o be o f f e r e d by p l a i n t i f f r e l a t e s t o w a r n i n g and n o t
t o illumination. W hold Congress h a s preempted t h e a r e a of e
i l l u m i n a t i o n d e v i c e s but n o t warning d e v i c e s .
R e s p o n d e n t h a s made a m o t i o n t o s t a y t h e p r o c e e d i n g s
i n t h i s Court u n t i l t h e United S t a t e s C o u r t of Appeals f o r
the Ninth C i r c u i t has rendered a decision in t h e c a s e of
Marshall v. Burlington Northern, Inc., C a s e No. CA, Docket
No. 81-3161. Respondent contends that a stay in these
p r o c e e d i n g s s h o u l d be g r a n t e d b e c a u s e : t h e r e is a s u b s t a n -
t i a l r i s k of c o n f l i c t i n g d e c i s i o n s between t h e Ninth C i r c u i t
in the Marshall case and our decision in this case; the
issue is a federal question which i s more appropriately
d e c i d e d by t h e f e d e r a l c o u r t s ; t h e r i s k o f c o n f l i c t i n g d e c i -
s i o n s w i l l c r e a t e a dilemma f o r BN i n o p e r a t i n g i t s t r a i n s
i n Montana and o t h e r states; and t h e i n t e r e s t s o f justice,
~ u d i c i a l economy, and good court administration requires
t h i s C o u r t t o do s o . The l e a d i n g c a s e on when a s t a y o f p r o c e e d i n g s m o t i o n
s h o u l d be g r a n t e d is L a n d i s v . N o r t h American Co. (1936),
299 U.S. 248, 57 S . C t . 1 6 3 , 8 1 L.Ed. 153. The v a r i o u s p r o -
nouncements of L a n d i s h a v e been f o l l o w e d and r e e s t a b l i s h e d
over the years. The c o u r t in Dellinger v. Mitchell (D.C.
Cir. 1 9 7 1 ) , 442 F.2d 782, s e t s o u t t h e i m p o r t a n t l e g a l con- s i d e r a t i o n s , i n i t i a l l y b r o u g h t o u t i n L a n d i s , t o f o l l o w when
determining whether a stay in the proceedings should be
utilized. The c o u r t s t a t e d :
. I l l A c o u r t h a s i n h e r e n t power t o stay proceedings i n c o n t r o l of i t s docket--after b a l a n c i n g t h e competing i n t e r e s t s . [Footnote omitted.]
'I2 . ' T h e s u p p l i a n t f o r a s t a y m u s t make o u t a c l e a r c a s e of hardship o r i n e q u i t y i n being --- required t o go forward, i f t h e r e i s even a f a i r p o s s i b i l i -y -t h a t t h e s t a y f o r w h i c h h e t - E r a y s w i l l w o r k d a m- g------------------- a e t o some o n e e l s e . Only i n r a r e c i r c u m s t a n c e s w i l l a l i t i q a n t i n one c a u s e be compelled t o s t a n d a s i d e while a -- l i t i g a n t i n a n o t h e r s e t t l e s t h e r u l e of law t h a t w i l l d e f i n e t h e r i g h t s of b o t h . ' 299 U.S. a t 255, 57 S . C t . a t 1 6 6 . [Emphasis added. ]
113 . ' E s p e c i a l l y i n c a s e s of e x t r a o r d i n a r y p u b l i c moment, t h e i n d i v i d u a l may be r e q u i r e d t o s u b m i t t o d e l a y and n o t immoderate i n e x t e n t and n o t o p p r e s s i v e i n i t s c o n s e q u e n c e s i f t h e p u b l i c welfare or conveninece w i l l t h e r e b y be p r o m o t e d . ' 299 U.S. a t 256, 57 S . C t . a t 166." 442 F.2d a t 786.
When t h e a n a l y s i s from L a n d i s i s a p p l i e d t o t h e f a c t s
of t h e c a s e a t bar i t becomes e v i d e n t that t h e motion to
s t a y t h e p r o c e e d i n g s s h o u l d n o t be g r a n t e d .
First, t h i s Court does n o t b e l i e v e that there is a federal preemption question involved in this case; there- f o r e , t h e r e is not a s u b s t a n t i a l r i s k of conflicting deci-
sions. Second, respondent h a s n o t s u f f i c i e n t l y demonstrated
t h a t , by a l l o w i n g a j u r y t o d e l i b e r a t e on t h e q u e s t i o n o f a
common-law duty, a great hardship w i l l befall it. Third, respondent h a s f a i l e d t o s a t i s f y t h i s Court t h a t t h e nard-
s h i p on r e l a t o r is l e s s burdensome t h a n t h a t on r e s p o n d e n t or that "some d e l a y i s i n h i s [relator's] own interest."
Fourth, and as respondent argues, t h e g r a n t i n g of a stay
rests within the discretion of the court. It is very
doubtful t h a t the " j u d i c i a l economy" o f t h e c o u r t w i l l be
a d v e r s e l y a f f e c t e d by r e f u s i n g t h e r e s p o n d e n t ' s m o t i o n .
The p e t i t i o n for a writ of supervisory control is
granted pursuant t o the rationale s e t out i n t h i s opinion. The m o t i o n f o r s t a y o f p r o c e e d i n g s i s d e n i e d f o r t h e r e a s o n s
d i s c u s s e d above.
W concur: e
C h i e f $usticwe