FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY. Mary Grace O'Brien, Judge.
Robert W. Loftin (Charles L. Williams; James C. Skilling; J. Tracy Walker, IV; S. Virginia Bondurant; Williams & Skilling; McGuireWoods, on briefs), for appellant.
Robert J. Cynkar (Christopher Kachouroff; Kevin L. Locklin; McSweeney, Cynkar & Kachouroff; Locklin & Mordhorst, on brief), for appellee.
Present: All the Justices. OPINION BY CHIEF JUSTICE CYNTHIA D. KINSER. JUSTICE POWELL, with whom JUSTICE MIMS joins, dissenting.
CYNTHIA D. KINSER, CHIEF JUSTICE.
In this wrongful death action arising out of a collision at a private railroad crossing, we conclude that the decedent, Charles E. Settle, Sr. (Settle), was contributorily negligent as a matter of law because he failed to act as a reasonable person would have acted for his own safety under the particular circumstances of this case. Therefore, we will reverse the circuit court's judgment upholding a jury verdict in favor of the plaintiff.
FACTS AND PROCEEDINGS
In October 2004, Settle was fatally injured when a train owned and operated by Norfolk Southern Corporation (Norfolk Southern) struck the dump truck he was operating. At the time of the collision, Settle was traveling on Kapp Valley Way, a private road that crosses railroad tracks owned by Norfolk Southern. Because the railroad crossing was private, it was controlled with only " crossbuck signs." There were no stop signs, warning signals, or barriers.
Adjacent to the railroad tracks, the defendant, RGR, LLC, (RGR) operated a business offloading lumber from train cars and reloading it onto tractor-trailers. On the date of the accident, RGR had lumber stacked near the railroad tracks and seven feet inside Norfolk Southern's 30-foot right-of-way. The edge of the lumber stacks was 23 feet from the center of the tracks. The collision occurred after Settle traveled past the lumber stacks and started to cross the railroad tracks. The train hit the front side of Settle's truck.
Georgia Settle (Mrs. Settle), as personal representative of her deceased husband's estate, filed this wrongful death action seeking compensatory damages and named in her fourth amended complaint RGR, Norfolk Southern, and two other commercial business entities as defendants. Mrs. Settle alleged that the defendants created a hazardous condition by stacking lumber near the railroad tracks, breached their duty of reasonable care to Settle by blocking the view of those traveling on Kapp Valley Way, and failed to take reasonable steps to make the railroad crossing safe. As a result, Settle, according to the allegations, could not see the approaching train in sufficient time to stop and avoid the collision.
At trial, the parties stipulated to certain facts. A third party owned Kapp Valley Way, and Norfolk Southern owned both the railroad tracks on which the accident occurred and a right-of-way that extended 30 feet in each direction from the center of the tracks. Norfolk Southern's trains came from both directions on the tracks that crossed Kapp Valley Way, and its trains did not come at the same time every day. The particular train that struck Settle's truck was traveling at approximately 45 miles per hour and was composed of three engines and more than 100 cars. Settle's dump truck was 30 feet in
length and measured eight feet from its front end to the back of the interior of the cab. At the time of the accident, Settle's truck was loaded with 13.21 tons of gravel that he was delivering to a county sewer system pipeline construction site. Settle held a commercial driver's license (CDL) and was employed as a dump truck driver.
Settle was driving southbound on Kapp Valley Way (from left to right in the photograph) toward the railroad crossing. The train was traveling east (from bottom to top in the photograph), approaching Settle from his right. RGR's lumber stacks were situated on the north side of the tracks at the corner where Kapp Valley Way crosses the railroad tracks. According to a representative from Norfolk Southern, the sightline at the point where Kapp Valley Way crosses the railroad tracks extended 800 feet to the west, the direction from which the train came that struck Settle's truck, and 600 feet to the east.
Receipts from Settle's deliveries on the day of the accident reflected that he was making his seventh trip to deliver gravel to the construction site when the collision occurred. One of Settle's co-employees, who had also driven over the crossing on Kapp Valley Way numerous times, testified, via deposition, that his usual practice was not to stop at the crossing but simply to slow down, check for a train, and proceed over the tracks if a train was not present. The employee stated that it was possible to stop before reaching the tracks if a train was approaching but that " you couldn't see like you should." According to the employee, if the lumber stacks were " out of the way, it would have been a whole lot better." But, the employee acknowledged that he had indeed stopped at the crossing in sufficient time to avoid being struck by a train coming from the west. He also stated that no one ever complained to RGR or Settle's employer about the lumber stacks' obstructing the view of the railroad tracks from Kapp Valley Way.
Timothy Weston, the owner of a commercial truck repair company, testified for Mrs. Settle as an expert on the operation of the dump truck Settle was driving when he was fatally injured. According to Weston, a truck like Settle's, if fully loaded, will accelerate in first gear from a stationary position at the speed of one-to-two miles per hour. In second gear, the truck, according to Weston, will increase its speed to two-to-three miles per hour and will travel at five miles per hour in third gear. In this particular type of truck, shifting between gears requires the driver to " push the clutch in, put the truck in neutral, [and] push the clutch back in," timing it " with the engine speed [and] decreasing the rpm of the engine . . . when you go into gear." According to Weston, if the driver misses a gear, the truck is in neutral, and if fully loaded, will stop. Weston approximated that coming to a complete stop with a full load while traveling five miles per hour would require about ten feet. Weston also testified that due to various noises inside the cab of the truck while driving, it is difficult to hear noises outside the cab.
Jose Mendosa was driving a box truck on the opposite side of the tracks, traveling northbound on Kapp Valley Way (from right to left in the photograph). Mendosa and his passenger, Luis Bonilla, testified that they saw the train approaching from the railroad crossing at Route 15, to their left, and stopped their truck at the crossing. Mendosa and Bonilla both stated that they heard the train's horn once, before the train reached the Route 15 crossing, but denied that the train blew its horn again from the time it crossed Route 15 until it hit Settle's truck. Mendosa saw Settle's truck approaching the crossing and stated that Settle was traveling " very slowly," about five miles per hour. Mendosa and Bonilla both attempted to get Settle's attention by waving their arms at him as he neared the crossing, but neither could see Settle's face through
his truck's windshield. Mendosa also testified that he had crossed the track on Kapp Valley Way several times that day and that " it was difficult to see because of the lumber piles."
Danny Humphreys owned a business on Kapp Valley Way and was driving a pick-up truck that stopped behind Mendosa and Bonilla at the crossing. Humphreys stated that he did not hear the train but that his windows were rolled up, he was on the telephone, and his air-conditioning was running. Humphreys also had traveled on Kapp Valley Way many times the day of the accident and testified that, when approaching the crossing as Settle did, he could not see the tracks to the right because of the lumber stacks. According to Humphreys, one could only see whether a train was approaching " [w]hen you get to the edge of the lumber pile" and that " you would have to kind of look around the corner." In addition, because the Kapp Valley Way crossing was only one lane wide, a driver had to stop if other vehicles were present and take turns crossing the railroad tracks. In Humphreys' ...