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Gilliam v. Mcknight

United States District Court, M.D. North Carolina
Dec 4, 2002
CIVIL NO. 1:01CV00332 (M.D.N.C. Dec. 4, 2002)


CIVIL NO. 1:01CV00332

December 4, 2002


This diversity action is before the court on Defendants' motion for summary judgment. Plaintiff Brandy L. Gilliam ("Plaintiff") brought this suit as a result of injuries sustained when she attempted to cross a private railroad crossing and her car collided with a train engineered by Defendant Mark M. McKnight, conducted by Defendant B. H. Saunders, and owned by Defendant Norfolk Southern Railway Company (collectively "Defendants"). Plaintiff brought this action alleging negligence and seeking both compensatory and punitive damages. For the reasons set forth in this memorandum opinion, Defendants' motion for summary judgment will be granted.


The Private Crossing

In 1970, Robert Hairston, Sr., purchased a large tract of unimproved farm land in Walkertown, North Carolina. Hairston, Sr., asked Defendant Norfolk Southern for permission to construct a private crossing across pre-existing railroad tracks on his new property. He subsequently signed an agreement ("License Agreement") with Defendant Norfolk Southern by which he was designated as the "sole user" of the crossing. (Br. Supp. Defs.' Mot. Summ. J., Ex. N at 2.) Hairston, Sr., was required to take steps to ensure that the use of the crossing did not interfere with the operation of the trains, including ensuring that all who used the crossing stopped at it. The License Agreement also prohibited Hairston, Sr., from assigning the use of the crossing to any other person without the railroad's written permission. Eventually Hairston, Sr., built his house almost directly behind the crossing. For many years there were no other homes behind the crossing, and there was no through traffic.

In or around 1994, Hairston, Sr., permitted his two sons to build homes on portions of the farmland located behind the railroad. One of the sons was Plaintiff's stepfather, Robert Hairston, Jr., who moved onto the property with Plaintiff. Before the accident occurred, Hairston, Sr.'s home burned down and he moved away from the property. Hairston, Sr., did not notify Defendant Norfolk Southern that others were using the crossing, and Defendant Norfolk Southern did not give written permission for Hairston, Sr., to assign the use of the crossing to others.

The private crossing is a rural graded crossing located near U.S. Highway 311. The driveway leading to the private crossing from Plaintiff's house is made out of gravel and runs parallel to the railroad tracks. Plaintiff's expert states that the gravel road at the beginning is eight feet below the track level and climbs a hill as it approaches the crossing. As you approach the crossing from Plaintiff's house, there is a sharp left curve in the driveway.

Although the amount and degree of obstruction caused by vegetation is disputed all parties agree that there is some vegetation near the railroad tracks. Plaintiff's witnesses guessed that there were some trees "a good hundred feet or more down the track" away from the crossing and that some smaller vegetation was thirty feet from the crossing and five to ten feet from the tracks. (Id., L. Hairston Dep., Ex. B, at 17-18, 19-21; R. Hairston, Jr., Dep., Ex. C, at 24.) Plaintiff's witnesses testified that a driver using the private crossing could see to the left (south) all the way down the tracks to a nearby "block signal." (Id., L. Hairston Dep., Ex. B, at 83-86; R. Hairston, Sr., Dep., Ex. D, at 16-18, 21-24.) The witnesses further identified the block signal as being visible in photographs of the tracks from the crossing taken the day after the accident. It is undisputed that this signal is 566 feet from the private crossing.

Plaintiff, a recent high school graduate, had crossed the tracks to come and go from her house several times every day since the seventh grade. Plaintiff's stepfather, Hairston, Jr., had told her "hundreds of times" to stop and look both ways at the crossing. (Id., Gilliam Dep., Ex. A, at 20-23.) Plaintiff's mother testified that Plaintiff "was basically the person who would make sure everybody else" stopped. (Id., L. Hairston Dep., Ex. B, at 39.) Generally, Plaintiff would approach the crossing at five to ten miles per hour, square the automobile up with the crossing, look, and come-to a stop before proceeding. Plaintiff's witnesses testified that it was the custom of those using the crossing to swing wide around the curve, getting off the driveway so that they would approach the crossing squarely. Then they would pull up to about ten to twenty feet from the crossing, stop, and look both ways down the tracks. (See id., R. Hairston, Jr., Dep., Ex. C, at 14-18; R. Hairston, Sr., Dep., Ex. D, at 16-17, 28-29; L. Hairston Dep., Ex. B, at 14-15, 23-24, 23-30, 87-88, 100.)

Plaintiff was well aware that the railroad tracks at the private crossing were active. (Id., Gilliam Dep., Ex. A. at 19-20.) Plaintiff also testified there was nothing especially dangerous about the crossing. (Id. at 23.) She testified that as long as she was careful, the crossing was safe. (Id.) Furthermore, Plaintiff testified that, with or without a warning, she knew that the crossing was there and that she was supposed to stop at it. (Id. at 42.)

The Collision

On July 6, 1999, Plaintiff drove her stepfather's car to the grocery store to get ingredients for dinner. Plaintiff does not recall how fast she was driving as she approached the crossing. At the same time, train number 55TV806 was traveling from Winston-Salem, North Carolina, to Roanoke, Virginia, hauling 100 empty grain hoppers being pulled by two locomotives. Defendant McKnight was the engineer operating the train from the left-hand (west) side of the lead locomotive, and Defendant Saunders was the conductor and was located on the right-hand (east) side of that same locomotive. Each man had been employed by Defendant Norfolk Southern for over two decades and had traveled this section of track an average of six times a week during his tenure. As the train was traveling north toward the private crossing, it blew its whistle at the nearby Stoney Point Road (public) crossing, then proceeded north toward the private crossing. The train was traveling between thirty to thirty-one miles per hour, within the posted speed limit, and had its headlight and ditch lights on.

The police report on the collision listed the time of the collision as 3:45 p.m.

Hairston, Jr., testified that when he rode with Plaintiff she would not drive faster than five to ten miles per hour up the driveway because she knew that the gravel driveway would kick up dust if she drove faster than that. (See Br. Supp. Defs.' Mot. Summ. J., R. Hairston, Jr., Dep., Ex. C, at 41-42.)

Defendant Saunders testified that he first saw Plaintiff's SUV approximately 150 feet from the private crossing, traveling toward the crossing from the right. He further testified that he soon saw that the SUV was not going to stop, so he yelled to Defendant McKnight to engage the emergency brake. Both Defendant Saunders and Defendant McKnight testified that the emergency brake was engaged at about the same time as the collision.

Plaintiff remembers looking to the right (north) away from the approaching train before entering the crossing. She does not, however, remember looking to the left (south) toward the approaching train and does not remember stopping at the crossing. Both Defendant Saunders and a neighbor of the Plaintiff, Harvey Pack, testified that Plaintiff did not stop nor look to her left in the direction of the locomotive. Regardless, there is no evidence to suggest that Plaintiff saw the train upon its approach to the crossing. As Plaintiff testified, "I was coming this way [through the crossing]. It just hit me." (Id., Gilliam Dep., Ex. A, at 39.) Plaintiff suffered serious injuries as a result of the collision, which required extensive medical procedures.

Plaintiff disputes the credibility of both witnesses. Plaintiff first asserts that Defendant Saunders lack credibility due to the fact that he is an "interested" witness. Second, Plaintiff asserts that Harvey Pack lacks credibility because his story is inconsistent with Defendants' and his view was obstructed. Pack testified that he heard the train approaching from a distance but "[s]uddenly, [he] heard the brakes of the train locking and turned to look toward the tracks. . . . The front of the sport utility vehicle was just a couple of feet from the crossing when I saw it." (Br. Supp. Defs.' Mot. Summ. J., Pack Aff., Ex. H, at 4-5.) Plaintiff points out that both Defendants Saunders and McKnight testified that the emergency brake was applied only at the same time or a little after the collision, not before it. As a result of this inconsistency, Plaintiff claims that Pack could not have seen Plaintiff before the accident.
Plaintiff further avers that Pack could not have seen the accident from his alleged location because his view was obstructed. Plaintiff supports this allegation with the opinion testimony of a private investigator who visited the Pack house after the accident. The admissibility of this non-eyewitness opinion testimony, however, is questionable at best.

Plaintiff originally filed this suit in North Carolina state court. Defendants removed the suit to this court under diversity jurisdiction pursuant to 28 U.S.C. § 1332. Defendant Norfolk Southern then filed a third-party complaint against Hairston, Sr., for indemnification under the License Agreement. Defendants filed this motion for summary judgment only as to the claims in Plaintiff's complaint.


I. Summary Judgment Standard

Summary judgment must be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of persuasion on the relevant issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party may survive a motion for summary judgment by producing "evidence from which a [fact finder] might return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). When the motion is supported by affidavits, the non-moving party must set forth specific facts showing that there is a genuine issue for trial.See Fed.R.Civ.P. 56(e); see also Cray Communications, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 393-94 (4th Cir. 1994) (moving party on summary judgment motion can simply argue the absence of evidence by which the non-movant can prove her case). In considering the evidence, all reasonable inferences are to be drawn in favor of the non-moving party.Anderson, 477 U.S. at 255. However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [fact finder] could reasonably find for the plaintiff." Id. at 252.

II. Contributory Negligence

Even if Plaintiff could establish an issue of fact as to whether Defendants breached any duty of care to the Plaintiff, the undisputed evidence clearly establishes Plaintiff's contributory negligence. It is well settled in North Carolina that judgment as a matter of law should be entered if a plaintiff's negligence was one of the proximate causes of her injuries. See, e.g., Champs Convenience Stores, Inc. v. United Chem. Co., Inc., 329 N.C. 446, 455, 406 S.E.2d 856, 861 (1991); Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 625, 61 S.E.2d 904, 906 (1950). "The very term `contributory neglicence' ex vi termini implies or presupposes negligence on the part of the defendant. . . . The plaintiff is barred from recovery, in an action like the present, when his negligence concurs and cooperates with the negligence of the defendant in proximately producing the injury." Godwin v. Johnson Cotton Co., 238 N.C. 627, 630, 78 S.E.2d 772, 774 (1953) (citation omitted).

A. North Carolina Law

Under the common law of North Carolina, it is a motorist's "legal duty to take such precautions for his own safety as an ordinarily prudent man would take under the same or similar circumstances." Ramey v. Southern Ry. Co., 262 N.C. 230, 235, 136 S.E.2d 638, 642 (1964). Along with this reasonable person standard of care, a motorist in North Carolina has specific duties and responsibilities upon approaching a railroad crossing. A motorist is under a duty to yield the right of way to a train when both are competing for the crossing. See Price v. Seaboard Air Line R.R. Co., 274 N.C. 32, 40, 161 S.E.2d 590, 596 (1968). When approaching the crossing, a motorist must also reduce her speed in order to stop if a train might be present. Cox v. Gallamore, 267 N.C. 537, 543, 148 S.E.2d 616, 621 (1966).

Furthermore, a motorist has a duty to use all available senses at her disposal when approaching a crossing. A motorist has a duty "before entering upon the track to look and listen and to ascertain whether a train [is] approaching," and the "looking and listening must be timely so that his precaution will be effective." Baughn v. Seaboard Air Line R.R. Co., 291 F. Supp. 425, 427 (M.D.N.C. 1968), aff'd, 408 F.2d 684 (4th Cir. 1969) (citation omitted). In other words, a motorist has a duty to keep a diligent and "proper" lookout when approaching a crossing and to see an approaching train if possible. Medlin v. Seaboard Air Line R.R. Co., 261 N.C. 484, 485, 135 S.E.2d 52, 53 (1964) (per curiam). This duty applies even if there is no warning of the presence of a train other than the ability to see it. See, e.g., id. (holding that a motorist is negligent as a matter of law when he did not keep a proper lookout and that he cannot rely on the railroad to give an audible signal at a public crossing). "If the motorist, in the exercise of ordinary care, could have seen or heard the train, the failure to do so is contributory negligence as a matter of law . . . ." Baughn, 291 F. Supp. at 427. In fact, the grade crossing itself is sufficient warning of danger. See Medlin, 261 N.C. at 485, 135 S.E.2d at 53.

North Carolina law also clearly states that if a driver is familiar with the known dangers and hazards of a crossing, she is guilty of contributory negligence as a matter of law if she does not avoid them.See Presnell v. Payne, 272 N.C. 11, 13, 157 S.E.2d 601, 602 (1967). A driver's "familiarity with the surroundings may have lulled him into carelessness or insecurity, nevertheless his failure to discern and appreciate the obvious renders him contributorily negligent as a matter of law." Penland v. Southern Ry. Co., 228 N.C. 528, 530, 46 S.E.2d 303, 304 (1948).

Lastly, North Carolina law requires motorists to stop at all railroad crossings when an approaching train is "plainly visible and is in hazardous proximity to the crossing." N.C. Gen. Stat. § 20-142.1(a)(4). A violation of this statute does not amount to negligenceper se; however, it is still considered evidence of contributory negligence as a matter of law by North Carolina courts. See Parchment v. Garner, 135 N.C. App. 312, 316, 520 S.E.2d 100, 103 (1999).

B. Application of the Law to the Undisputed Facts

After applying North Carolina law to the facts of this case, it is clear that Plaintiff's actions or inactions contributed to her injuries. Here, Plaintiff "knew that [she] was approaching a railroad, and knew [she] was entering a zone of danger," Irby v. Southern Ry. Co., 246 N.C. 384, 390, 98 S.E.2d 349, 354 (1957), as detailed below.

1. Plaintiff's approach to the crossing

Plaintiff first avers that there is a triable issue of material fact as to whether Plaintiff used reasonable care when she approached the private crossing. Although Plaintiff remembers approaching the crossing and looking to the right (away from the train), she does not remember looking to the left (toward the train). She also does not remember ever stopping her car as she approached the crossing.

Plaintiff attempts to create an issue of material fact by introducing evidence of Plaintiff's past behavior at the crossing as "habit" evidence. Defendants are correct, however, in asserting that in order to be admissible as "habit" evidence, an activity must be "reflexive," "instinctive," and "semi-automatic." Weil v. Seltzer, 873 F.2d 1453, 1460 (D.C. Cir. 1989). "[H]abit refers to the type of nonvolitional activity that occurs with invariable regularity." Id. "It has been repeatedly stated that habit or pattern of conduct is never to be lightly established, and evidence of examples, for purpose of establishing such habit, is to be carefully scrutinized before admission." Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 511 (4th Cir. 1977). Plaintiff claims that her "usual" actions were to stop the car at the crossing, and look and listen for a train.

Regardless, any evidence of "usual" activity is irrelevant when contradicted by undisputed evidence of what actually happened the day of the collision. Defendants have produced at least two witnesses who have testified as to what Plaintiff actually did on the day in question. Both witnesses have testified that Plaintiff looked only to the right, and did not look to the left. Both witnesses also testified that Plaintiff never fully stopped at the crossing, but instead continued to look to the right as she crossed the tracks. Plaintiff does not testify to the contrary.

2. Obstruction by vegetation

Although Plaintiff does not offer any evidence that she stopped and looked in the direction of the oncoming train, she attempts to excuse her failure to see what she should have seen by claiming that "overgrown" and "dense" vegetation obstructed the view. (Pl.'s Br. Opp'n Defs.' Mot. Summ. J. at 15-16; Compl. at 2-4.) All the evidence indicates that Plaintiff was not looking in the direction of the train as she approached the crossing. However, considering all the evidence and any reasonable inferences in favor of Plaintiff, it appears that some degree of vegetation was located next to or near the railroad track. Besides Plaintiff's conclusory remarks (that the vegetation was "dense" and "overgrown"), however, there is no evidence that Plaintiff could not have seen the oncoming train as she approached the crossing.

Plaintiff has included numerous affidavits in support of her allegations in her Brief in Opposition to Defendants' Motion for Summary Judgment. These individuals were deposed at an earlier date, however, with both parties and their lawyers present and able to ask any questions. The Fourth Circuit has held that a party may not attempt to create a genuine issue of material fact by using conclusory affidavit testimony in contradiction to the factual admissions in the witnesses' depositions. Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984).

Plaintiff's witnesses testified at their depositions that if a person pulled up to the crossing in the usual manner, she can see at least 500 feet down the track in the (southerly) direction of an oncoming train. The only evidence Plaintiff offers to dispute these facts is the opinion of Plaintiff's expert. Ellis King. At his deposition, however, King based his opinion that Plaintiff could not see more than forty feet down the track on unverified facts. When asked if he then had an opinion as to Plaintiff's visibility down the tracks when squared up to the crossing at a right angle, King testified that he had "no opinion." (Br. Supp. Defs.' Mot. Summ. J., King Dep., Ex. E at 62-63.)

As discussed supra, Plaintiff's mother testified that it was generally the custom when approaching the crossing to swing wide around the curve, getting off the driveway, so that they could approach the crossing squarely. Then they would pull up to about ten to twenty feet from the crossing, stop and look both ways down the tracks. (Br. Supp. Defs.' Mot. Summ. J., Hairston, Sr., Dep. Ex. D at 28-29; L. Hairston Dep., Ex. B at 27-29; Hairston, Jr., Dep., Ex. C at 14-17.) In fact, a path was actually worn in the gravel where cars had steered wide to straighten out before the crossing. There is also evidence that Plaintiff usually followed this custom. Plaintiff testified that she would approach the crossing at five to ten miles per hour, square the car up with the crossing, look and come to a stop before proceeding. (Id., Gilliam Dep., Ex. A at 20-23.)

When first asked about visibility once Plaintiff had turned toward the crossing on the driveway, King testified that a person could not see more than forty feet down the track. This testimony, however, was based on approaching the crossing following the sharp angle of the road. Plaintiff and her witnesses had already testified that they did not approach the crossing in such a manner and that it was their usual practice to steer the car at a right angle in the gravel so as to approach perpendicular to the crossing.

Even if Plaintiff did have difficulty seeing any oncoming train due to vegetation, however, there is substantial evidence that she was very familiar with the crossing and knew of any dangers inherent in approaching it. Plaintiff had approached and crossed the private crossing numerous times a day since the seventh grade. She knew about trains coming through and did not think that this was an especially dangerous crossing. In a similar case dealing with a public crossing, the North Carolina Supreme Court granted judgment as a matter of law to the defendant railroad. See Ramey, 262 N.C. at 230, 136 S.E.2d at 638. Despite alleged obstructions, the court held for the defendant because "[p]laintiff was thoroughly familiar with this crossing and its danger, because he had crossed it seven or eight times a day for the two or three years immediately prior to this occasion" and approached it without looking in either direction. Id. at 235, 642.

Plaintiff contends that North Carolina precedent supports her proposition that any issue of obstructed view is an issue of fact for the jury. The cases cited by Plaintiff, however, are distinguishable. Each case involved evidence that the plaintiffs relied on signals usually present at public highway crossings. Moreover, each plaintiff presented evidence that the motorist stopped or slowed when he approached the crossing, timely looked both ways and listened, and tried to avoid the oncoming train. See Dixon v. CSX Transp., Inc., 990 F.2d 1440 (4th Cir. 1993); Mansfield v. Anderson, 299 N.C. 662, 264 S.E.2d 51 (1980) ; andJohnson v. Southern Ry. Co., 257 N.C. 712, 127 S.E.2d 521 (1962).

In this case, however, Plaintiff did none of these things. All evidence indicates that Plaintiff did not look to her left (toward the train), did not stop at the crossing, and did not try to avoid the oncoming train.

3. Willful and wanton negligence

Plaintiff avers that, even if she is found to be contributorily negligent, Defendants are still liable because of their willful and wanton negligence. In North Carolina, a plaintiff's contributory negligence will not bar a recovery for injuries sustained by the defendant's willful and wanton negligence. See Robinson v. Seaboard Sys. R.R., Inc., 87 N.C. App. 512, 519-20, 361 S.E.2d 909, 914 (1987), disc. review denied, 364 S.E.2d 924 (1988). "`An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others.'" Haddock v. Lassiter, 8 N.C. App. 243, 245, 174 S.E.2d 50, 51 (1970) (quoting Foster v. Hyman, 197 N.C. 189, 148 S.E. 36, 37 (1929)). "`The true conception of willful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another . . . .'"Id. at 246, 52 (citation omitted) (quoting Bailey v. North Carolina R.R. Co., 149 N.C. 169, 62 S.E. 912, 914 (1908)).

The court finds no evidence of either willful or wanton negligence on the part of Defendants. There is no evidence that Defendants acted in a deliberate or recklessly indifferent manner to place Plaintiff in danger. Plaintiff claims, however, that Defendant Norfolk Southern failed to clear brush and obstacles from the private crossing in contravention of its alleged duty under North Carolina law. As a result, Plaintiff avers that Defendant Norfolk Southern is guilty of "willful and wanton negligence."

First, to prove that this duty exists, Plaintiff relies upon North Carolina General Statute Section 136-194. Plaintiff's reliance on this statute, however, is misplaced. Although the statute does involve private crossings, it is concerned with railroad tracks which cross through private, enclosed lands. Therefore, the duties involved in the statute are to construct and maintain "cattle guards" (to prevent anything from escaping the enclosed lands) at crossings:

Every company owning, operating or constructing any railroad passing through and over the enclosed land of any person shall, at its own expense, construct and constantly maintain, in good and safe condition, good and sufficient cattle guards at the points of entrance upon and exit from such enclosed land and shall also make and keep in constant repair crossings to any private road thereupon . . . .

N.C. Gen. Stat. § 136-194 (emphasis added). Second, cases applying North Carolina common law to impose a duty upon railroads to control vegetation along the right of way concern public, not private, crossings. See, e.g., Mansfield v. Anderson, 299 N.C. 662, 264 S.E.2d 51 (1980). Finally, even if Defendants were negligent in their maintenance of the vegetation near the private crossing, this negligence does not rise to the level of "willful" or "wanton" negligence.

4. Last Clear Chance

Lastly, Plaintiff contends that even if she was contributorily negligent as a matter of law, she could survive summary judgment because Defendants had the "last clear chance" to avoid the collision. Plaintiff avers that Defendants should have sounded the train whistle when Defendants first noticed Plaintiff. Defendant Saunders has testified that he first saw Plaintiff 150 feet away from the crossing while she was driving on the road parallel to the tracks.

The doctrine of "last clear chance" is applicable only when both Plaintiff and Defendants have been negligent and Defendants have time to avoid the injury after the combined negligence of both has resulted in the hazard being created. Glosson Motor Lines, Inc. v. Southern Ry. Co., 5 N.C. App. 402, 406, 168 S.E.2d 470, 472 (1969). In the present case, Defendants strongly deny, with significant factual support, any negligence on their part. It is well established in North Carolina law that, in order to submit the issue of "last clear chance" to a jury in a railroad crossing case, Plaintiff must prove:

(1) That at the time the injured party was struck by a train of defendant he was down, or in an apparently helpless condition on the track; (2) that the engineer saw, or, by the exercise of ordinary care in keeping a proper lookout could have seen the injured person in such condition in time to have stopped the train before striking him; and (3) that the engineer failed to exercise such care, as the proximate result of which the injury occurred.
Irby, 246 N.C. at 390-91, 98 S.E.2d at 354. Notably, North Carolina courts have generally used this instruction only where the defendant had the ability "to have stopped the train before striking" the injured plaintiff. In this case, however, Plaintiff has already admitted that Defendants could not have stopped the train ("which was clearly impossible given the speed and distances involved" (Pl.'s Br. Opp'n Defs.' Mot. Summ. J. at 19-20.)) to avoid the accident. Instead, Plaintiff relies on the possibility that Defendants could have avoided the collision by sounding the whistle so that Plaintiff could get out of the way of the oncoming train. However, "`[t]he last clear chance does not mean the last possible chance to avoid the accident.'" Irby, 246 N.C. at 392, 98 S.E.2d at 355 (emphasis added) (quoting Lee v. Atlantic Coast Line R.R. Co., 237 N.C. 357, 75 S.E.2d 143, 147 (1953).

Furthermore, Plaintiff misuses the doctrine in her application to this case. There is no evidence that Plaintiff was in any "helpless condition on the track." Nor is there any evidence that Plaintiff was not in full comprehension of her faculties at the time she approached the private crossing.

Indeed the doctrine of last clear chance does not apply in cases where the person upon the track of a railroad, at the time, is in apparent possession of his strength and faculties, the engineer of the train that produces the injury having no information to the contrary. Under such circumstances the engineer is not required to stop the train, or to even slacken its speed, for the reason he may assume until the very moment of impact that such person will use his faculties for his own protection and leave the track in time to avoid the injury.
Id. at 391, 354. In fact, the North Carolina Supreme Court has held that even when a car is stuck on the track, "[t]he engineer ha[s] a right to assume up to the very moment of the collision that the plaintiff could and would extricate himself from the danger." Temple v. Hawkins, 220 N.C. 26, 16 S.E.2d 400, 401 (1941) (emphasis added). In light of these legal standards, Defendants had no duty to sound their whistle when they initially saw Plaintiff 150 feet from the crossing. Moreover, Defendants had a right to assume that Plaintiff would stop at the crossing or at least not collide with the train. Finally, all admissible evidence points to the fact that Defendants kept a proper lookout and that Plaintiff did not. When combined with the undisputed fact that Defendants had only seconds to respond once they realized Plaintiff was not going to stop, the only reasonable conclusion is that Defendants had no "last clear chance" to avoid the collision with Plaintiff.


This was a tragic event, but one for which the Defendant railroad and its employees bear no responsibility. Put simply, Plaintiff drove her vehicle across a private railroad crossing from her home, a route she had taken thousands of times, directly into the path of a train traveling at a moderate rate of speed over a route which it traveled almost every day. No one, including the Plaintiff, testified that Plaintiff looked to her left in the direction of the train as she drove onto the tracks. In fact, all of the evidence is to the contrary — she did not look. For whatever reason, Plaintiff simply failed to see what she clearly should and could have seen and, between the parties, must bear the unfortunate consequences.

An order and judgment in accordance with this memorandum opinion shall be entered contemporaneously herewith.


For the reasons set forth in the memorandum opinion filed contemporaneously herewith,

IT IS ORDERED AND ADJUDGED that the motion for summary judgment of Defendants Mark M. McKnight, B. H. Saunders, and Norfolk Southern Railway Company [Doc. #33] is GRANTED, and Plaintiff's claims are DISMISSED with prejudice.

Summaries of

Gilliam v. Mcknight

United States District Court, M.D. North Carolina
Dec 4, 2002
CIVIL NO. 1:01CV00332 (M.D.N.C. Dec. 4, 2002)
Case details for

Gilliam v. Mcknight

Case Details

Full title:BRANDY L. GILLIAM, Plaintiff v. MARK M. MCKNIGHT; B. H. SAUNDERS; and…

Court:United States District Court, M.D. North Carolina

Date published: Dec 4, 2002


CIVIL NO. 1:01CV00332 (M.D.N.C. Dec. 4, 2002)