Northland Insurance v. The Kansas City Southern Railway Company

Filing 38

MEMORANDUM OPINION. Signed by Honorable Jimm Larry Hendren on May 14, 2009. (sh)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS F O R T SMITH DIVISION N O R T H L A N D INSURANCE COMPANY L L O Y D ' S LONDON S & T TRUCKING COMPANY, INC. (INSURED) v. C i v i l No. 08-2075

PLAINTIFF

K A N S A S CITY SOUTHERN RAILWAY C O M P A N Y (KCSR) M E M O R A N D U M OPINION

DEFENDANT

O n the 5th day of May, 2009, the captioned matter came on for b e n c h trial. Plaintiffs Northland Insurance Company and Lloyd's

L o n d o n appeared through representatives, and all plaintiffs were represented by counsel. Defendant appeared through its

r e p r e s e n t a t i v e and was represented by counsel.

The Court heard the

t e s t i m o n y of witnesses, received documentary evidence, and now m a k e s the following findings of fact and conclusions of law: 1. The allegations of plaintiffs' Complaint are that a

t r a c t o r - t r a i l e r rig driven by Kenneth Harrington ("Harrington") and o w n e d by S&T Trucking Company, Inc. ("S&T") was involved in a c o l l i s i o n with a train owned by the Kansas City Southern Railway C o m p a n y ("KCS"), resulting in property damage to the S&T truck and i t s freight. They allege this collision was caused by negligence

o n the part of KCS, to wit: * f a i l i n g to post warning signs that the railroad crossing

w a s abnormally dangerous or that there was a load weight limit; and * 2. f a i l i n g to maintain the railroad crossing. KCS counterclaimed against S&T, alleging that it

sustained damage to its locomotive as a result of negligence on the p a r t of S&T's driver Harrington, to wit: * * * * f a i l i n g to keep his vehicle under control; f a i l i n g to observe the rules of the road; f a i l i n g to yield the right of way to the KCS train; f a i l i n g to stop his vehicle far enough from the crossing

t o allow the train to clear the crossing; * * o p e r a t i n g the vehicle in an unsafe manner; and f a i l i n g to follow the instructions of a third party to

u s e a different crossing. 3. a T h e accident in question occurred on August 23, 2005, at crossing on Polk County Road 13 near Hatton, Polk

railroad

C o u n t y , Arkansas.

Harrington, an employee of S&T, had been to a

q u a r r y located near the crossing and loaded an industrial drill on h i s lowboy trailer. 4. closer to A lowboy has very little ground clearance, being 2-3 feet the ground than a standard flatbed trailer. Its

a d v a n t a g e is that it allows the haulage of tall loads which would n o t pass underneath bridges and overpasses were they loaded on a t r a i l e r the normal height off the ground. Its disadvantage is that i t sits so close to the ground that it cannot easily traverse u n e v e n roadways. 5. Upon leaving the quarry with the drill, Harrington

e n c o u n t e r e d Darrell Hinsley ("Hinsley"), who worked at the quarry. Hinsley, noting that the loaded lowboy was riding only about six

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inches off the ground, contacted Harrington on his CB radio and w a r n e d him that he probably would not be able to cross the railroad c r o s s i n g on that particular route out of the quarry, and that a t r a i n was approaching. Hinsely recommended a different exit route The alternate

t h a t would not require crossing railroad tracks.

r o u t e would not have required Harrington to turn around, but only t o turn left instead of right when he reached Polk County Road 13. 6. H a r r i n g t o n did not take the alternate route recommended

b y Hinsley, attempting instead to cross the tracks at the location of the accident. As can be seen from photographic evidence,

H a r r i n g t o n ' s route led down a modest slope to the crossing, which w a s level, and then down another slope to the highway. As the

t r a c t o r began to go down the slope to the highway, the lowboy bottomed out and lodged on the tracks. Before it could be

d i s l o d g e d , it was struck by a KCS train.

The tractor, trailer,

drill, and KCS train and tracks all sustained damage. 7. Several witnesses testified about the physical

c o n f i g u r a t i o n of the crossing and its history.

Polk County Deputy

S h e r i f f Eddie Price, who investigated the accident, was of the o p i n i o n that the grade of the road as compared to the grade of the c r o s s i n g was a contributing factor in the accident. He testified

t h a t the crossing itself was smooth and passable, however, and he was not aware of any accidents at the crossing previous to

Harrington's. Polk County Judge Ray Stanley testified that, with the

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exception of one two-year term, he had been the County Judge of P o l k County since 1992, and that he was familiar with all the c o u n t y roads under his jurisdiction. Judge Polk was not aware of

a n y unsafe conditions at the crossing in question at any time b e f o r e the date of the accident. D a r r e l l Hinsley, lives two miles south of the crossing and w o r k s at the quarry, was not aware of any truck ever getting stuck a t the crossing, but testified that trucks entering and leaving

t h e quarry ordinarily used a marked entrance about two miles north o f the route taken by Harrington. He had never seen anything in

t h e area between the tracks at the crossing that would cause a p r o b l e m , but was concerned -- given the slope of the roadway and t h e minimal clearance of the lowboy -- that Harrington could not c l e a r the tracks at that location. 8. U n d e r Arkansas law, a party claiming damages on a theory

o f negligence must prove, by a preponderance of the evidence, that i t has sustained damages; that the party from whom it seeks to r e c o v e r was negligent; and that such negligence was a proximate c a u s e of its damages. AMI 204. Negligence is "the failure to do

s o m e t h i n g which a reasonably careful person would do, or the doing o f something which a reasonably careful person would not do, under c i r c u m s t a n c e s similar to those shown by the evidence in this case." AMI 302. The facts of this case will not support a recovery for

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plaintiffs on a theory of negligence, but will support a recovery f o r KCS on that theory. * the As far as the evidence showed:

n o vehicle had ever become lodged on the crossing before which might have alerted KCS to post a "hump

accident,

c r o s s i n g " sign; * there was no roughness on the crossing or other

m a i n t e n a n c e problem that might have contributed to the accident; * the slope of the road and the configuration of the

c r o s s i n g were all clearly visible to an approaching driver; and * H a r r i n g t o n was warned about the crossing and that he

p r o b a b l y could not clear it in his loaded vehicle. There was no evidence that a reasonably careful railroad

c o m p a n y would have altered the configuration of the crossing, or c a r r i e d out any maintenance that was not carried out. All the e v i d e n c e points to the conclusion that Harrington disregarded what h e surely knew about the clearance of his rig; what he could clearly see about the slope of the road above and below the

c r o s s i n g ; and Hinsley's explicit warning. 9. U n d e r Arkansas law, the measure of damages to personal

p r o p e r t y is the fair market value of the property immediately b e f o r e and immediately after the occurrence. In determining this

d i f f e r e n c e , the trier of fact may take into consideration the cost o f repairs. AMI 2227.

K C S put on evidence of the following items of damage: * $ 2 4 , 3 2 6 . 0 7 to repair mechanical damage to its train;

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* * *

$ 7 , 2 3 2 . 8 8 for costs incurred due to train delays; $ 7 5 2 . 9 0 for costs of an additional train crew; $ 3 9 . 6 8 for taxi fare to bring the additional crew to the

s i t e of the train; and * $ 1 , 1 3 9 . 9 3 to repair damage to the tracks.

T h e s e items, which total $33,491.46, are recoverable. K C S also put on evidence of an element of damage it designated " a d d i t i v e s , " which as far as the evidence shows is nothing more t h a n the ordinary cost of doing business for KCS. There being no

e v i d e n c e any such "loss" was proximately caused by negligence on t h e part of S&T, the Court will not award damages for this item. 9. Judgment in this matter -- consistent with the Court's

f i n d i n g s of fact and conclusions of law expressed herein -- will be e n t e r e d by separate document, as required by F.R.C.P. 58(a). I T IS SO ORDERED, this 14th day of May, 2009. /s/ Jimm Larry Hendren JIMM LARRY HENDREN U N I T E D STATES DISTRICT JUDGE

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