Opinion
No. 90-CV-0176.
Decided August 23, 1991.
Donald C. Moore, Jr., for plaintiffs.
Jim Brockman, for defendant.
This matter came before the court upon defendant's motion for summary judgment, with oral argument being heard on August 14, 1991. After taking the matter under advisement, the court hereby renders the following decision.
On the morning of May 2, 1988, plaintiff Gerald R. Runge, operating his vehicle on Hageman's Crossing Road located in Williamsburg Township, Clermont County, Ohio, collided at a grade crossing with a train owned by defendant. The crossing in question here was protected by a standard railroad crossbuck with a stop sign attached to the very same pole. Plaintiff claims that he stopped at this stop sign on the morning of the accident and then proceeded to cross the railroad track after looking both ways, hearing neither a train whistle nor a bell.
The fireman on defendant's train, Robert D. Ewing, who was acting as engineer at the time of the accident, states that he sounded the standard whistle signal and bell for a crossing at the whistle post. Ewing indicated that the train was being operated at a speed of approximately forty miles per hour just prior to the application of the brakes. The affidavit of D.V. Anderson supports Ewing's statement as to the speed of the train, as does Gail Meranda's testimony. Gail Meranda, a nearby resident who could view the train track from his mobile home, testified that the train's whistle was sounded as it approached the grade crossing. Meranda also confirmed Ewing's observation that plaintiff failed to stop before he crossed the track.
Plaintiffs claim that foliage located near the track obstructed his view of the train, and asserts this as an issue of fact in opposition to defendant's motion for summary judgment. Also asserted by plaintiffs as issues of fact are: (1) whether the train's whistle was sounded; (2) whether the train's crew failed to activate an audible bell; (3) whether the train was being operated in excess of the maximum allowed speed; (4) whether plaintiff stopped and looked both ways before crossing the train tracks; and (5) whether plaintiff was contributorily negligent.
Summary judgment is to be granted only whereupon consideration of the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence and written stipulations of fact, the court concludes that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Civ.R. 56(C). Construing the evidence most strongly in favor of the nonmoving party, a court shall not render summary judgment unless it appears that reasonable minds can come but to one conclusion, such conclusion being adverse to the party against whom the motion is made. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47.
A railroad has a duty to exercise ordinary care to ensure the safety of motorists. Matkovich v. Penn Central Transp. Co. (1982), 69 Ohio St.2d 210, 23 O.O.3d 224, 431 N.E.2d 652, paragraph one of the syllabus. The plaintiffs here must create an issue of fact as to whether defendant herein failed to exercise ordinary care in order to withstand defendant's motion for summary judgment.
Plaintiffs contend that defendant breached its duty to plaintiff as a motorist when it failed to provide an audible warning in the form of a whistle and bell, as required by R.C. 4955.32. The evidence here does not support plaintiffs' contention that there is an issue of fact as to whether the whistle and bell were sounded. There is ample positive evidence indicating that the fireman, Robert Ewing, sounded both as a warning as soon as he came to the whistle post. The negative testimony of plaintiff concerning his failure to hear either a bell or a whistle is insufficient to create an issue of fact where defendant has countered these claims with positive testimony. Barger v. Chesapeake Ohio Ry. Co. (1990), 70 Ohio App.3d 307, 590 N.E.2d 1369; Clark v. Baltimore Ohio RR. Co. (C.A.6, 1952), 196 F.2d 206; and Baker v. Consolidated Ry. Corp. (July 8, 1986), Montgomery App. No. CA 9688, unreported, 1986 WL 7709.
Plaintiffs have presented insufficient evidence to create an issue of fact as to whether defendant's train was being operated at an excessive speed. All testimony indicates that the train was being operated at approximately forty m.p.h. immediately prior to the application of the brakes. Plaintiffs have failed to contradict evidence that the time table in effect at the time that the accident occurred authorized a maximum speed of forty m.p.h. at the point where the accident occurred. Thus, reasonable minds must conclude that the defendant was not breaching its duty to plaintiff by its speed of operation.
In regards to plaintiff's claim that foliage prevented him from seeing defendant's train approaching, it must be noted that plaintiffs have not shown that defendant had any duty to control the growth of foliage on property adjacent to the railroad track. The existence of the foliage does play an important role in ascertaining whether the plaintiff was contributorily negligent. While the court finds it incredible that the nearby foliage could have completely obstructed plaintiff's view of the train from the stop sign, taking into consideration the photographs presented by plaintiffs and defendant, any obstruction experienced by plaintiff should have caused plaintiff to exercise even greater caution. As the Supreme Court of Ohio noted in North v. Pennsylvania RR. Co. (1967), 9 Ohio St.2d 169, 172, 38 O.O.2d 410, 412, 224 N.E.2d 757, 760: "If the physical conditions in proximity to the track were as contended by plaintiff in his petition, such matters served only to require the exercise of greater care in accordance with the conditions." See, also, McCluskey v. Norfolk Western Railway Co. (C.A.6, 1969), 408 F.2d 1025. The question of whether plaintiff stopped at the stop sign prior to crossing the tracks must also be discussed within the context of plaintiff's alleged contributory negligence. Assuming arguendo that plaintiff did stop prior to crossing the track (although the greater weight of the evidence suggests to the contrary), it is beyond dispute that plaintiff proceeded before he could do so safely, as required by R.C. 4511.62.
The facts before the court suggest that whether plaintiff stopped is immaterial, since even if he did, he failed to effectively look and listen at such point. If plaintiff's view was blocked or in any way diminished by the nearby foliage, he should have looked for an approaching train immediately prior to crossing the track. See New York, Chicago St. Louis RR. Co. v. Kistler (1902), 66 Ohio St. 326, 64 N.E. 130, superseded by statute on another matter.
In light of the foregoing, the court holds that defendant was not negligent as a matter of law and the plaintiff's own negligence was the proximate cause of the accident. The court hereby grants defendant's motion for summary judgment.
Judgment for defendant.