Ammons v. Norfolk Southern Corporation et al

Filing 76

OPINION & ORDER: 1) Dfts' 25 MOTION in Limine seeking to prevent Pla from introducing evidence re prior malfunctioning of the signals at the railroad crossing is GRANTED; 2) Dfts' 42 MOTION for Summary Judgment is GRANTED; 3) Judg ment in favor of Dfts will be entered contemporaneously herewith; 4) Matter is STRICKEN from the active docket of the Court; and 5) This is a final and appealable Order and no just cause for delay exists. Signed by Judge Joseph M. Hood on 02/26/2014. (KLB) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 12-296- JMH
PHILLITA JILL AMMONS, Administrator
of the Estate of Sophia Ammons

VS.

PLAINTIFF

OPINION & ORDER

NORFOLK SOUTHERN CORPORATION
and JOHN DOE DEFENDANT

DEFENDANTS

* * * * * * * * * * *
This matter is before the Court on the Motion for Summary
Judgment filed by Defendants, Norfolk Southern Corporation and
John Doe Defendant (“Defendants”) [DE #42] and the Motion in
Limine

filed

Phillita

Jill

by

Defendants,

Ammons,

seeking

Administrator

to

of

prevent

the

Estate

Plaintiff,
of

Sophia

Ammons (“Plaintiff”), from introducing evidence regarding prior
malfunctioning of the signals at the railroad crossing [DE #
25].
The

These motions are fully briefed and are ripe for review.
Court,

having

reviewed

the

record

and

being

otherwise

sufficiently advised, will grant Defendants’ motion in limine
and motion for summary judgment.
I.

Factual Background
This case arose from an accident in which Sophia Ammons was

driving eastbound on Bohon Road in Harrodsburg, Kentucky and

drove directly into the side of a Norfolk Southern train headed
westbound through the Bohon Road Crossing.
Plaintiff,

Ammons

navigated

a

“hard

left

As described by
turn”

of

the

road

leading up to the crossing and then struck the side of the lead
locomotive, spinning her car violently.
of

the

passenger

window,

striking

Ammons was thrown out
her

head

on

communications control box, killing her instantly.

a

metal

Plaintiff,

Ammons’ estate, filed suit against Defendants in the Circuit
Court of Mercer County, Kentucky.

Defendants removed the action

to federal court based on diversity jurisdiction.
Plaintiff’s

lawsuit

alleges

that

the

train’s

engineer

failed to sound the train’s horn with the required two long
sounds, followed by a short sound and another long sound; that
the flashing warning lights at the crossing were malfunctioning;
and that Sophia’s view down the track towards Harrodsburg was
obscured by thick vegetation.

However, in their motion for

summary judgment, Defendants argue that the evidence shows the
whistle was sounded and the flashing lights at the crossing were
operating

normally

on

the

day

of

the

accident,

and

that

Plaintiff has failed to create a genuine issue of fact to the
contrary.

According to Defendants, the evidence is that Ammons

disregarded the flashing red lights and the train’s horn and
drove into the side of the train, which had already occupied the
crossing.

Defendants further argue that there is no evidence

2

vegetation was obstructing the signs or signals of the railroad
and that, to the extent that vegetation on private property
surrounding

the

crossing

obstructed

Ammons'

view

of

the

approaching train, had Ammons actually stopped at the flashing
lights, as she was required to do, her visibility would have
been unlimited.
II.

Standard
“Under

Procedure],

Rule

56(c)

summary

[of

the

judgment

is

Federal
proper

Rules

if

the

of

Civil

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
summary

judgment,

evidence

“this

presents

a

Court

In reviewing a motion for

must

sufficient

determine

whether

disagreement

to

‘the

require

submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.’” Patton v. Bearden, 8
F.3d

343,

346

(6th

Cir.

1993)

(quoting

Anderson

Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

v.

Liberty

The evidence, all

facts, and any inferences that may permissibly be drawn from the
facts

must

be

viewed

in

the

light

most

favorable

to

the

nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio

3

Corp.,

475

U.S.

574,

587

(1986)

(quoting

United

States

v.

Diebold, Inc., 369 U.S. 654, 655 (1962)).
Once the moving party shows there is an absence of evidence
to support the nonmoving party’s case, the nonmoving party must
present

“significant

probative

evidence”

to

demonstrate

that

“there is [more than] some metaphysical doubt as to the material
facts.”

Moore v. Phillip Morris Cos., 8 F.3d 335, 339-40 (6th

Cir. 1993).

Conclusory allegations are not enough to allow a

nonmoving party to withstand a motion for summary judgment.
at 343.
support

Id.

“The mere existence of a scintilla of evidence in
of

the

[nonmoving

party’s]

position

will

be

insufficient; there must be evidence on which the jury could
reasonably find for the [nonmoving party].”
at

252.

“If

the

evidence

is

merely

Anderson, 477 U.S.

colorable,

or

is

significantly probative, summary judgment may be granted.”

not
Id.

at 249-50 (citations omitted).
III.

Analysis
Under

negligence,

Kentucky

law,

Plaintiff

resulting injury.”

must

to

recover

show

against

“duty,

breach

Defendants
of

duty,

for
and

Webb v. Jessamine Cnty. Fiscal Court, 802 F.

Supp. 2d 870, 888 (E.D. Ky. 2011) (citations omitted).

With

respect to the respective duties of Ammons and Defendants, “[i]n
general, the rights and duties of a railroad company and the
traveling public in the use of grade crossings are mutual and

4

reciprocal

and

each

must

exercise

the

degree

of

care

commensurate with the danger, but trains have the right of way
and all persons on the street or highway shall yield precedence
to the trains.”

Ill. Cent. R.R. Co. v. Arms, 361 S.W.2d 506,

509 (Ky. 1962).

The duties of a railroad company at a public

crossing “are defined by statute, common law, and sometimes, by
city ordinance.”
1975).

Allen v. Arnett, 525 S.W.2d 748, 750 (Ky.

Under Kentucky common law, the railroad has a duty to

“giv[e] adequate warning of the approach of a train, [to keep] a
lookout

ahead,

and

[to

operate]

the

train

at

a

speed

commensurate with the care required under the circumstances.”
Ill. Cent. R.R. Co., 361 S.W.2d at 509.

By Kentucky statute, a

railroad company is required to provide each locomotive engine
running over its lines with a bell and whistle, which shall be
rung or sounded “at a distance of at least fifty (50) rods from
the

place

highway

or

where

the

track

crosses

crossing

where

a

upon

signboard

the
is

same

level

required

to

any
be

maintained,” and which shall be rung or “sounded continuously or
alternately

until

the

engine

has

reached

the

highway

crossing[,]” except at night, if regulated by ordinance.

or
KRS

277.190.
Operators of motor vehicles also have certain duties when
approaching and crossing a railroad track.

“The duty imposed

upon every man to exercise ordinary care for his own safety

5

requires that in approaching a railroad track, he must use his
senses in a way that ordinarily prudent persons would do under
similar circumstances, in order to determine whether it is safe
to cross the track at that time.”

Nashville, Chattanooga & St.

Louis Ry. Co. v. Stagner, 205 S.W.2d 493, 494-495 (Ky. 1947).
Thus, “[a] driver of an automobile whose view is obscured or
whose hearing is impaired by any condition must exercise care
commensurate with the factual situation and proceed with more
caution than where he has an unobstructed view.”
(citations omitted).

Id. at 494

In addition, under Kentucky statute, the

operator of a vehicle is required to “stop and remain standing
at a railroad grade crossing” when “[a] visible electric or
mechanical signal device warns of the immediate approach of a
railroad train,” or when “[a]n approaching train is visible and
in hazardous proximity.”

KRS 189.560(1)(a), (1)(c).

Here, Plaintiff does not contend that the train was not
under reasonable control or was not operating at a reasonable
speed.

Plaintiff also does not dispute that Ammons drove her

car into the side of the lead locomotive of the train.

Nor does

Plaintiff dispute the conclusions of Defendants’ expert, Kenneth
R. Agent, that Ammons was traveling at approximately 35 miles
per hour at the time of the collision; she did not slow as she
approached the crossing; and examination of the rear filaments
show that Ammons was braking when the impact occurred.

6

Thus,

the parties appear to agree that Ammons was not aware of the
presence of the train until immediately before striking it in
the crossing.

Rather, Plaintiff alleges that Defendants failed

to comply with the duty to sound the train’s horn or whistle as
it approached the crossing.
flashing

warning

lights

Plaintiff also alleges that the

at

the

crossing

were

malfunctioning.

However, Plaintiff has failed to present sufficient evidence on
which a jury could reasonably find that the train’s horn did not
sound or that the flashing warning lights were not functioning.
A.

Evidence

Regarding

the

Train’s

Horn

and

the

Flashing

Warning Lights
In their motion for summary judgment, Defendants rely on
testimony from the engineer, Tyrone Campbell, that he blew the
horn

as

usual

as

the

train

was

approaching

the

Bohon

Road

crossing and that he could see that the flashing lights at the
crossing were functioning.

The conductor, Shawn Chilcote, also

testified that the train’s horn was blown and that the crossing
lights were functioning.

Plaintiff attempts to discredit this

testimony by pointing out that, from the train, a person would
not be able to see the front of the lights that would have been
facing Ammons as she approached the crossing. However, Chilcote
testified that, although he could not see the red face of the
light from his perspective, he could see the back sides of the
bulbs that blink on the back side of the reflectors.

7

Chilcote

testified that he specifically recalled seeing the lights being
on

at

the

crossing

on

the

day

of

the

accident.

Campbell

similarly testified that he saw the lights flashing on both of
the

crossings

on

the

day

of

the

accident.

Campbell

also

testified that he was positive that he was blowing the train’s
horn before he saw Ammons approach the intersection.

Defendants

also submit a sworn affidavit from Mary Anderson, an individual
who lives near the Bohon Road crossing, in which she states that
she heard the train whistle blow several times shortly after
9:00 a.m. on the day of the accident.
a

thump,

hearing

which
the

she

thump,

thought
she

and

She states she then heard

was

a

car

her

door

husband

slamming.

looked

down

Upon
to

the

crossing and saw that an accident had occurred.
With respect to the issue of whether the warning lights at
the

crossing

were

flashing

prior

to

the

accident,

the

only

evidence Plaintiff has submitted that contradicts Defendants’
evidence are affidavits stating that the crossing lights were
not functioning on other occasions.

Defendants have filed a

motion in limine to exclude this evidence, relying on Ayoub v.
National Railroad Passenger Corp., 76 F.3d 794 (6th Cir. 1996).
In Ayoub, a driver, Ayoub, drove around functioning crossing
gates, disregarded flashing warning signals, and drove into the
path of a passenger train.

Ayoub was killed.

The plaintiff

(the representative of Ayoub’s estate) argued “that prior signal

8

malfunctions at the crossing conditioned Ayoub to ignore the
warning signals.”

Id. at 794-795.

The district court awarded

summary judgment to the defendants (the railroad company, train
engineer, and the owner of the tracks), “holding that evidence
of

prior

malfunctions

was

irrelevant

when

the

functioning properly at the time of the accident.”

signals

were

Id. at 795.

The Sixth Circuit affirmed, explaining:
The evidence is undisputed that the crossing gates
worked, the warning lights flashed and the train’s
horn sounded.
Two other cars waited for the
approaching train.
Yet Ayoub disregarded the signals
and pulled around those cars and into the crossing.
Previous malfunctions at the crossing, even if
verified, cannot overcome the fact that Ayoub’s own
negligence
proximately
caused
his
death.
No
reasonable jury could return a verdict for Ayoub’s
representatives under such circumstances.
In short, we hold that evidence of prior malfunctions
of
warning
signals
at
a
railroad
crossing
is
irrelevant so long as the signals functioned properly
at the time of the accident.
We fail to see a
circumstance in which a plaintiff could prove that a
railroad’s negligence proximately caused an accident
occurring after the plaintiff undisputedly disregarded
properly
functioning
warning
signals.
Holding
otherwise potentially could impose liability upon a
railroad for any accident occurring at a crossing
which had a prior warning signal malfunction which had
been corrected.
Id. at 796 (emphasis added).
The Plaintiff does not attempt to distinguish this case
from Ayoub.

Rather, Plaintiff relies on Whitney v. Louisville &

Nashville Railroad Co, 138 S.W.2d 503 (Ky. 1940).

In Whitney, a

case involving a collision between a freight train and a semi-

9

trailer truck, the issue was whether the railway company had
kept the electric warning signal at a crossing in proper repair.
A witness who had seen the crossing from her porch immediately
prior to the accident had testified that the wigwag1 at the
crossing was not working and that the electric signal began to
work at about the time the engine and the truck collided.
at 504.

Id.

The trial court also admitted testimony of two other

witnesses who testified that, earlier on the afternoon of the
accident, the electric signal did not work until the engine had
crossed the crossing, and then the bell rang but the wigwag did
not work.
wigwag

was

Id.

However, the trial court excluded evidence that

working,

though

the

light

in

the

wigwag

was

not

burning, the week before the accident, as well as evidence that
the signal did not work within 10 days or two weeks prior to the
accident.
these

Id.

The Kentucky Court of Appeals held that, under

circumstances,

the

evidence

that

the

signal

was

not

working properly during the two weeks prior the accident was
“competent for the purpose of showing that the signal had not
been in a proper state of repair for a sufficient length of time
to put the Railway Company on notice of its defective condition”

1

A “wigwag signal” is “a signal at a railway grade crossing
that indicates the approach of a train by the horizontal
swinging of a disk.” Wigwag signal, Webster's Third New
International Dictionary, Unabridged, http://unabridged.merriam
webster.com/unabridged/wigwag%20signal (last visited Jan. 31,
2014).

10

and should have been admitted.

Id. at 505.

However, as pointed

out by Defendants, Whitney is distinguishable in that there was
evidence that the electric signal was not working at the time of
the accident.

In contrast, in this case, as in Ayoub, all of

the evidence regarding the condition of the electric warning
signals at the time of the accident is that these signals were
functioning properly.

Thus, just as in Ayoub, the evidence of

prior malfunctions of the electric warning signals at the Bohan
crossing

is

irrelevant.

Accordingly,

Defendants’

motion

in

limine to exclude this evidence is granted and this evidence
will not be considered by the Court.
Plaintiff’s remaining evidence that the flashing warning
lights were not working the day of the accident is an affidavit
submitted from Amanda Medley, in which Medley stated: “Within
the next day or so at the accident scene, I spoke with a lady
who was apparently a claim agent for the railroad who said the
words to the effect, ‘It looks like it may be the railroad’s
fault.
55-2].

The light was not working.’ She gave me her card.” [D.E.
However,

requirements
summary
56(c)(4)

for

judgment
requires

Medley’s

an
set
an

affidavit

affidavit

fails

to

meet

the

a

motion

for

used

to

oppose

in

Fed.

R.

Civ.

affidavit

used

forth

to

Pro.

support

or

56.

Rule

oppose

a

motion for summary judgment “be made on personal knowledge, set
out facts that would be admissible in evidence, and show that

11

the

affiant

stated.”

.

.

.

is

competent

to

testify

Fed. R. Civ. Pro. 56(c)(4).

on

the

matters

Here, Medley’s affidavit

fails to set out facts that would be admissible in evidence.
Instead,

Medley’s

affidavit

sets

forth

inadmissible

hearsay

evidence that an unidentified claim agent with an unspecified
relationship

with

the

railroad

said

that

it

“may”

railroad’s fault because the light was not working.
Plaintiff

argues

that

this

statement

is

be

the

Although

admissible

as

an

admission against interest under Fed. R. Evid. 804(b)(3), Rule
804 sets forth exceptions to the rule against hearsay that are
applicable when the declarant is unavailable as a witness.
R. Evid. 804.
claim

agent

Plaintiff’s

Here, Plaintiff makes no effort to show that the
referred

response

to
as

the

statement

be

by

Medley

Senior

unavailable for trial.
that

Fed.

(who

Claim

Agent

is

identified

Ann

in

Brumleve)

is

In addition, Rule 804(b)(3) requires
one

that

“a

reasonable

person

in

the

declarant’s position would have made only if the person believed
it to be true because, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had so great a
tendency

to

invalidate

the

declarant’s

claim

against

someone

else or to expose the declarant to civil or criminal liability.”
Fed. R. Evid. 804(b)(3).

Again, Plaintiff makes no effort to

demonstrate how the unidentified claim agent’s statement about
the light fits within any of these requirements.

12

The affidavit

itself is vague as to the claim agent’s status or authority,
stating only that the agent was “apparently a claim agent for
the

railroad,”

and

Plaintiff

presents

no

further

regarding Brumleve’s relationship with Defendants.
unclear

whether

insurance

Brumleve

company,

or

was

employed

perhaps

some

by

the

other

evidence

Thus, it is
railroad,

entity.

its

Without

additional information, the Court is unable to determine whether
this

statement

was

contrary

to

Brumleve’s

proprietary

or

pecuniary interest or whether it could expose her to civil or
criminal
within

liability.

hearsay”

Regardless,

evidence

is

simply

this

inadmissible

insufficient

to

“hearsay
create

a

genuine issue of material fact as to whether the warning lights
were functioning on the day of the accident. See Knox v. Neaton
Auto

Prods.

(finding

Mfg.,

that

a

Inc.,
claim

375

F.3d

cannot

be

451,

457

supported

(6th
by

Cir.

2004)

“inadmissible

hearsay within hearsay”); Sperle v. Mich. Dep’t of Corr., 297
F.3d 483, 495 (6th Cir. 2002) (“A party opposing a motion for
summary

judgment

cannot

use

hearsay

or

other

inadmissible

evidence to create a genuine issue of material fact.” (citing
Weberg v. Franks, 229 F.3d 514, 526 n.13 (6th Cir. 2000))).

For

all of these reasons, Plaintiff has failed to uphold her burden
of presenting evidence creating a genuine issue of material fact
as to whether the flashing warning lights were working on the
day of the accident.

13

Turning to whether the train’s horn was blown prior to the
time that the train entered the crossing, as previously noted,
Defendants
engineer,

rely
that

on
he

testimony

blew

the

horn

from

Campbell,

as

usual

as

the
the

train’s

train

was

approaching the crossing and that he was positive that he was
blowing the horn before he saw Ammons approach the crossing.
Defendants also rely on testimony from the conductor, Chilcote,
that the train’s horn was blown, as well as Mary Anderson’s
affidavit stating that she heard the train whistle blow several
times before hearing a loud thump, which was presumably the
accident.

To
from

affidavits

contradict
several

this

evidence,

witnesses

Plaintiff

stating

that,

on

submits
other

occasions, trains either did not sound a horn at all or did not
sound a horn until immediately before the crossing.

However, as

with the flashing lights, evidence that other trains did not
sound

their

horns

on

other

occasions

is

not

relevant

whether this train sounded its horn on this occasion.
introducing

this

evidence

would

be

extremely

as

to

Indeed,

prejudicial

to

Defendants because of the significant risk that Defendants would
be held responsible for the failure of other trains to sound
their horns on other occasions.
Aside from this inadmissible evidence, Plaintiff submits an
affidavit from Brandy Kirkpatrick, a woman who lives near the
crossing.

According to Kirkpatrick’s affidavit, the morning of

14

the accident, she had to take her daughter to the hospital by
10:00 a.m.

She states that she “was used to the trains and when

[she] would hear a train whistle while still at home, [she’d]
automatically

wait

for

10

or

15

minutes

before

going

to

be

certain that the train was fully across the track.” [D.E. 5521].

She further states that the morning of the accident, there

was no whistle.
that

a

witness

However, “negative testimony, to the effect
or

witnesses

did

not

hear

the

bell

ring

or

whistle blow, is not sufficient to create a jury issue in the
face of positive evidence that the bell was rung or the whistle
blown.”
267

Louisville & Nashville R.R. Co. v. Galloway’s Adm’x,

S.W.2d

90,

93

(Ky.

1954)

(citations

omitted).

Thus,

Kirkpatrick’s affidavit is insufficient to create an issue of
fact as to whether the train’s horn was blown, in light of the
evidence

from

the

train’s

conductor,

engineer

and

another

bystander that the train’s horn was blown.
Plaintiff

also

attempts

to

discredit

Mary

Anderson’s

statement in her affidavit that she heard a train whistle blow
several

times

shortly

after

9:00

a.m.

and

then

thump, which she thought was a car door slamming.

she

heard

a

To contradict

this statement, Plaintiff offers a letter drafted by Plaintiff’s
counsel after a meeting with Mary Anderson and her husband,
Randy.

The letter purports to summarize Plaintiff’s counsels’

notes about what Mary and her husband saw and heard the morning

15

of the accident.

In the letter, Plaintiff’s counsel states that

Mary told him that she heard the whistle of a train coming from
Harrodsburg, recalled telling it to “shut up,” poured herself a
cup of coffee and walked into the living room where the TV was
on.

The letter states that Mary says she did not remember

hearing the whistle any further, but did hear the sounds of the
wheels on the rails.
actually

consistent

Even if the letter were considered, it is
with

Mary

Anderson’s

affidavit

that

she

heard the train sound its horn on the day of the accident.
Even

so,

this

letter,

essentially

a

self-serving

summary

of

facts drafted by counsel, is inadmissible hearsay and will not
be considered by the Court.
For all of these reasons, the Court finds that Plaintiff
has failed to present at least some affirmative evidence showing
that there is a genuine dispute as to whether the train sounded
its horn or that the electric warning signals at the Bohan Road
crossing were functioning on the day of the accident.

Rather,

the evidence is that the train sounded its horn and the electric
warning signals were working.

As such, Ammons had a duty under

Kentucky law to stop and remain standing at the crossing.
189.560.
drove

Sadly, Ammons failed to fulfill this duty and instead

directly

into

the

side

of

train.

16

KRS

the

lead

locomotive

of

the

B.

Plaintiff’s Allegations Regarding Excessive Vegetation
Plaintiff further alleges that Defendants failed to comply

with their obligations to control the vegetation at the crossing
and that, as a result, Ammons’ view of oncoming trains from
Harrodsburg
crossing.

was

blocked

until

the

last

instant

before

the

Plaintiff submits several affidavits from witnesses

stating that, prior to the accident, the thickness of the trees
made it difficult for a driver to see an approaching train until
the driver was relatively close to the crossing.

Defendants

point out that the railroad cannot be held responsible for trees
or vegetation on private properties, hills, curves in the road,
or other natural obstructions near a rail crossing.

Rather,

according

provide

to

Defendants,

the

railroad

can

only

vegetation control for the purpose of visibility within its own
right of way at a rail crossing.

Defendants also correctly

point out that the railroad’s obligations regarding vegetation
is addressed by 49 C.F.R. § 213.37.

This regulation requires a

railroad to control vegetation on “railroad property which is on
or immediately adjacent to roadbed . . . so that it does not
obstruct

visibility

right-of-way,

and

of
at

railroad

signs

highway-rail

and

signals

crossings.”2

49

along
C.F.R.

the
§

2

Although
49
C.F.R.
§
213.37
contains
additional
requirements for vegetation control, these requirements are
directed at ensuring that vegetation does not interfere with
railroad employee duties and are not relevant here.
17

213.37.

Here,

Plaintiff

has

not

alleged

that

vegetation

obstructed Ammons’ view of any railroad signs and signals.

In

fact, the evidence is that the railroad warned Ammons of the
approaching train by sounding the train’s horn and by engaging
the

flashing

warning

lights.

Even

if

her

view

of

the

approaching train was obstructed, Ammons ignored the warnings
that a train was approaching, did not stop (as she was required
to do) or even slow down, but instead drove directly into the
train that was in the crossing.
But where a person steps or drives in front of an
approaching train which he might have observed had he
looked before placing himself in a position of peril,
and the point upon which he goes upon the track is so
close to the approaching train that it would be
impossible for those in charge of it to avoid striking
him, the proximate cause of the injury he received is
the result of his own negligence which bars him from
recovery as a matter of law irrespective of any
omission or failure of duty on the part of the
trainmen.
Hunt’s Adm’r

v. Chesapeake & Ohio Ry. Co., 254 S.W.2d 705, 709

(Ky. 1952) (citations omitted).
In

Louisville

&

Nashville

Railroad

Co.

v.

Fisher,

357

S.W.2d 683 (Ky. 1962), the decedent was killed when a train
struck the automobile he was driving over a railroad crossing.
Plaintiff,

decedent’s

estate,

argued

that

the

presence

of

vegetation on the right of way obstructed decedent’s view of the
train.

However, this particular crossing was marked by a county

yellow circular sign and a “crossbuck” sign.

18

Id. at 685.

“In

addition,

there

crossing.

Id.

was

an

official

county

STOP

sign”

at

the

The Kentucky Supreme Court concluded that, in

these circumstances, there were only two possibilities:

(1)

either the decedent ignored the sign and did not stop, in which
case, he was negligent as a matter of law, as no reasonably
prudent motorist may justifiably ignore the warning of a “STOP”
sign on a highway, id. at 689-90; or (2) the decedent complied
with

the

continuing
failed

to

law

and

across
use

did

his

in

track

the

stop,

was

faculties

proceeding further. Id.

which

to

case,

completely

his

conduct

careless,

ascertain

the

in

as

he

hazard

of

As the court explained:

In the present case the STOP sign itself is a
significant
circumstance
impelling
a
reasonably
prudent man to look and listen.
Having obeyed the
directions of the sign and taken cognizance of its
warning, the motorist must exercise ordinary care in
the use of his faculties to discover the hazard about
which he has been cautioned.
Even when a plaintiff
testified positively that he took precautions, we have
held him guilty of contributory negligence as a matter
of law if, with a clear opportunity to do so, he did
not hear or see an approaching train.
McCarter v.
Louisville & Nashville R. Co., 236 S.W.2d 933 (Ky.
1951); Chesapeake & Ohio Railway Company v. Trimble,
306 S.W.2d 310 (Ky. 1957).
Surely under similar
circumstances an inference of careful conduct, totally
unsupported by any proof, could not be drawn.
See
Louisville & N. R. Co. v. Hyde, 239 S.W.2d 936 (Ky.
1951), and Louisville & Nashville Railroad Company v.
Hines, 302 S.W.2d 553 (Ky. 1957).
Id. at 691 (emphasis in original).
The Kentucky Supreme Court further found that, even if the
railroad had negligently permitted vegetation to grow on the

19

right

of

way,

approaching

thus

train

at

obscuring
the

the

“STOP”

decedent’s

sign,

an

view

ordinarily

of

the

prudent

person in such circumstances would not abandon all precaution
and assume he had a clear field but would instead drive forward
to a point where he could determine whether he was endangered by
an approaching train.

Id. at 691-92.

In other words, the

presence of excessive vegetation would not give “the motorist a
license to charge blindly into the intersection.”

Id. at 691.

Rather, “[t]he precise warning of a STOP sign is to exercise
extra care before venturing into the line of crossing traffic.”
Id.

Indeed, the Court reasoned that “[t]he circumstance of

obscured

vision

care.”

Id.

at

imposed
692

on

[decedent]

(citations

more

than

Thus,

omitted).

rather

less

“[i]f

the

decedent actually stopped in obedience to the STOP sign, his
conduct thereafter is simply inexplicable in terms of due care.”
Id.

The

Court

concluded

that

“[u]nless

it

is

due

care

to

exercise no care to either see or hear at a railroad crossing, a
jury could not justifiably find for the plaintiff.”
This
rendered

Court
while

recognizes
Kentucky

that
courts

the

above-cited

followed

the

Id.
cases

were

contributory

negligence doctrine, under which any negligence on the part of
the plaintiff was a complete bar to any recovery.

In Hilen v.

Hays, 673 S.W.2d 713 (Ky. 1984), the Kentucky Supreme Court
adopted

comparative

fault.

Under

20

comparative

fault,

“contributory negligence will not bar recovery but shall reduce
the

total

amount

of

the

award

in

the

proportion

that

the

claimant’s contributory negligence bears to the total negligence
that caused the damages.”3 Id. at 720.

However, the doctrine of

comparative fault does not preclude summary judgment when the
plaintiff cannot demonstrate that the defendant is liable for
negligence in the first place.

See Thompson v. Breeding, 351

F.3d 732, 737-738 (6th Cir. 2003).

Here, the Court finds that

no reasonable jury could conclude that Defendants were negligent
because Plaintiff has not put forth any evidence that Defendants
breached any duty owed to Ammons.
Defendants

complied

with

their

Rather, the evidence is that
obligations

to

warn

of

the

oncoming train, as the train’s horn was sounded and the flashing
warning lights were engaged.
In addition, there is no evidence that Defendants failed to
comply with their duties to control vegetation so that it did
not obstruct the visibility of railroad signs and signals at the
crossing.

To the extent that any vegetation may have obstructed

3

Defendants’ motion also refers to evidence that Ammons was
under the influence of and impaired by marijuana for purposes of
driving a motor vehicle at the time of the collision and that
she was not wearing her seatbelt.
Under comparative fault,
however, this evidence would not preclude Ammons’ recovery
entirely, but would instead be considered by the jury in
determining
the
extent
to
which
Ammons
own
negligence
contributed to her injuries.

21

Ammons’ view of the approaching train, there is no evidence that
any

such

obstruction

injuries.

Although

was
the

the

proximate

causation

cause

of

determination

Ammons’

can

be

a

question of both law and fact, “causation creates a question of
law when ‘there is no dispute about the essential facts and but
one

conclusion

may

reasonably

be

drawn

from

the

evidence.’”

Petro v. Jones, No. 11-cv-151-GFVT, 2013 WL 1856423, at *2 (E.D.
Ky. May 1, 2013) (quoting Pathways, Inc. v. Hammons, 113 S.W.3d
85, 89, 92 (Ky. 2003)).

The evidence submitted by Plaintiff is

that the vegetation made oncoming trains difficult to see until
just before the crossing.
any

evidence

railroad’s

that

signs

Even so, Plaintiff has not submitted

vegetation
or

signals

obstructed
warning

Ammons’

of

the

view

of

oncoming

the

train.

Rather, the evidence is that Ammons ignored the warning signs
that a train was approaching, failed to stop at the crossing, or
even slow down, and instead drove directly into the side of the
train.

The only conclusion that may reasonably be drawn from

this evidence is that Ammons’ injuries were the result of her
own

failure

to

comply

with

her

obligations

to

stop

at

the

railroad crossing, not because vegetation obstructed her view of
the train tracks as she was approaching the crossing.
Although whether or not a plaintiff acted with due care is
usually

a

reasonable

question
minds

for

could

determination
reach

22

only

by

one

the

jury,

conclusion

“where
–

that

plaintiff

failed

negligence

was

to

the

exercise
proximate

ordinary
cause

of

care
his

and
injury

that
–

his

it

is

appropriate to remove the case from the jury’s consideration.”
Newport v. Cincinnati, New Orleans & Tex. Pac. Ry., 509 F.2d
1246, 1248 (6th Cir. 1975).

Here, there is no tenable basis for

a finding that Ammons exercised that degree of care which would
be observed by a reasonably prudent person in such a situation.
Even if the railroad had permitted vegetation to grow, partially
blocking the view of approaching trains, the fact remains that,
had Ammons stopped at the flashing warning lights (which she was
required by law to do), she would have been able to see the
approaching
warnings

train.

(which

were

Instead,
not

through the intersection.

Ammons

obscured

apparently

by

ignored

vegetation)

and

the
drove

As the Sixth Circuit stated in Ayoub,

this Court “fail[s] to see a circumstance in which a plaintiff
could prove that a railroad’s negligence proximately caused an
accident occurring after the plaintiff undisputedly disregarded
properly functioning warning signals.”
C.

Ayoub, 76 F.3d at 796.

Spoliation

Finally, the Court will address Plaintiff’s contention that
Defendants’ motion for summary judgment should be denied as a
sanction for alleged spoliation of evidence by Defendants.

In

order to be entitled to an instruction on spoliation, the party
seeking

the

adverse

inference

instruction

23

must

establish

the

following: “(1) that the party having control over the evidence
had an obligation to preserve it at the time it was destroyed;
(2) that the [evidence was] destroyed ‘with a culpable state of
mind’; and (3) that the destroyed evidence was ‘relevant’ to the
party’s claim or defense such that a reasonable trier of fact
could find that it would support that claim or defense.”

Beaven

v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010)
(citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306
F.3d

99,

107

(2d

Cir.

2002)).

District

courts

are

granted

“broad discretion in crafting a proper sanction for spoliation.”
Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009).
Defendants

contend

that

the

main

flaw

with

Plaintiff’s

argument regarding spoliation is that there is no proof that the
evidence
first

Defendants

place.

allegedly

Here,

destroyed

Plaintiff

first

ever

claims

existed
that

in

the

the

signal

department responsible for maintaining the crossing flashers,
and that was working on the crossing circuitry for several days
after the accident, may have destroyed evidence.

Plaintiff’s

claim

one

is

based

on

Justin

Ammons’

affidavit

that

of

the

signal department employees working on the crossing after the
accident

made

the

statement:

“Good

happened, they will cover it up.”

luck

finding

out

what

In addition, this claim is

also based on the fact that the Defendants claim an absence of
any records regarding the inspection and repair of the circuitry

24

and flashers at the crossing after the accident, as well as a
lack of records regarding why a large stack of railroad ties
were brought to the area.

Plaintiff speculates that these ties

were brought to the area “perhaps to replace welded rails which
could have broken and caused flashers not to come on.”

However,

a hearsay statement made by an unidentified employee (who may
not have even been employed by Defendants) and Plaintiff’s mere
suspicions

that

Defendants

are

lying

about

the

existence

of

records are simply not enough to prove that these records ever
existed.
Next, Plaintiff takes issue with the fact that the event
recorder

from

the

locomotive

did

not

indicate

train’s horn was blown before the accident.

whether

the

An event recorder

is a device which records a series of statistical information
from

the

locomotive.

At

the

time

of

the

accident,

federal

regulations required that the event recorder record train speed,
selected direction of motion, time, distance, throttle position,
and

applications

of

various

brakes.

49

C.F.R.

§

229.135.

Although, event recorders may also record horn handle positions
if

they

According

are
to

hooked

up

Defendants,

to

the

the

horn,

horn

this

handle

is

not

positions

required.
were

not

recorded by the event recorder on the locomotive involved in the
accident and Plaintiff has produced no proof to the contrary.

25

Thus, there is no basis to conclude that this evidence ever
existed, much less that it was destroyed by Defendants.
Plaintiff

further

argues

that

the

footage

from

the

locomotive’s Railview camera, a camera placed in the front of
the locomotive that records the visibility from the cab of the
locomotive, was destroyed.

The installation of such cameras is

optional and is not required by any federal regulations.
locomotive in question had Railview equipment installed.

The
After

the accident, the Railview DVR was removed from the train and
sent to the Transportation Data Center in Roanoke, Virginia so
that its contents could be downloaded.

However, the last entry

on the Railway DVR occurred in July 2010, about three months
before

the

accident.

No

data

existed

for

the

day

of

the

accident, or any trips in the last three months prior to the
accident.

Still, the data from the Railview DVR was downloaded

and preserved and the DVR was sent to the manufacturer to be
repaired and put back into service.
about

Defendants’

claim

accident on the DVR.
there

is

some

that

there

Plaintiff is suspicious
was

no

footage

of

the

Plaintiff first points to the fact that

conflicting

testimony

between

the

agent

who

removed the DVR from the locomotive, Claim Agent Brumleve, and
the employee at the Transportation Data Center who downloaded
the data, Adam Mastrangelo, about when each of them knew that
there was no footage on the DVR from October 15, 2011, the date

26

of the accident.

According to Plaintiff, Claim Agent Brumleve

testified that Mastrangelo emailed or called her within a week
or so of the accident and informed her that there was no video
of the accident.
check

the

Regardless,

However, Mastrangelo testified that he did not

content

of

simply

the

DVR

because

recorder

two

until

witness

May

gave

9,

2012.

conflicting

testimony about when they knew that there was no video does not
prove that the video existed and was destroyed by Defendants.
Plaintiff also takes issue with the fact that, after the data
was downloaded from the DVR recorder, the DVR recorder itself
was sent to the manufacturer to be repaired and put back into
service before it could be examined by Plaintiff.

However,

according to Mastrangelo’s testimony, this was done pursuant to
normal business practices and Plaintiff has offered no evidence
to suggest otherwise.

Although Plaintiff seeks a finding by the

Court that Defendants are simply lying about the non-existence
of a video recording from the date of accident, it has offered
no evidence – other than mere suspicions and speculations – that
this is the case.
Plaintiff also suggests the possible presence of a “second
locomotive” that, according to Plaintiff, could have had its own
Railview

camera

system.

Plaintiff’s

suspicion

is

based

on

references in testimony and documents to a “lead” locomotive, as
well as the police report from the accident, describing the

27

train

as

having

two

locomotives

and

18

cars.

Defendants

correctly point out that the police report is not admissible
into evidence and, regardless, the description on the police
report is simply a mistake.

Defendants submit a consist of the

train, or listing of the locomotives and cars that make up the
train, showing that there is only one locomotive, which would be
referred to as the “lead” locomotive, whether or not there were
multiple locomotives.
existed,

Plaintiff

Regardless of whether a second locomotive
merely

speculates

that

this

locomotive may have also had a Railview camera.

mystery

Such extreme

speculation is simply insufficient to show that any footage from
this camera ever existed, much less that it was destroyed.
Plaintiff
engineer’s

also

statement

after the accident.

takes
was

issue

not

with

taken

the

until

fact

nearly

that

nine

the

months

However, a delay in taking the statement of

a witness is not spoliation.
In support of Plaintiff’s argument that summary judgment
should

be

denied

because

Defendants

destroyed

evidence,

Plaintiff offers nothing more than suspicions, skepticism, and
speculation.

However,

there

is

no

proof

that

any

of

the

evidence on which Plaintiff relies ever existed, much less that
it was destroyed by Defendants.
creative,

are

certainly

not

Plaintiff’s arguments, while

enough

to

warrant

the

extreme

sanction of precluding summary judgment on spoliation grounds.

28

IV.

Conclusion
For the reasons set forth above, the Court, being fully and

sufficiently advised, hereby ORDERS as follows:
1.

Defendants’
Plaintiff

Motion

from

in

Limine

introducing

seeking

evidence

to

prevent

regarding

prior

malfunctioning of the signals at the railroad crossing
[D.E. 25] is GRANTED;
2.

Defendants’ Motion for Summary Judgment [D.E. 42] is
GRANTED;

3.

Judgment

in

favor

of

Defendants

will

be

entered

contemporaneously herewith;
4.

This matter is STRICKEN from the active docket of the
Court; and

5.

This is a final and appealable Order and no just cause
for delay exists.

This the 26th day of February, 2014.

29