United States District Court, W.D. Pennsylvania
September 16, 2005.
VILMA BOUCHARD, ADMINISTRATRIX OF ESTATE OF SAMANTHA A. BOUCHARD, Plaintiff,
CSX TRANSPORTATION, INC., Defendant.
The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge
This is a negligence wrongful death action. Plaintiff, Vilma
Bouchard (hereinafter "Bouchard"), Admistratrix of the Estate of
Samatha A. Bouchard (hereinafter "Ms. Bouchard") who was
tragically hit by a train that was owned and operated by
defendant, CSX Transportation (hereinafter "CSX") while riding
her bicycle. Plaintiff alleges that CSX was negligent in several
respects, thereby causing the untimely death of Ms. Bouchard.
Pending before this Court is defendant's motion for summary
judgment. For the reasons set forth below, defendant's motion for
summary judgment will be granted.
Unless otherwise noted, the following facts are undisputed.
1. On May 25, 2003, at approximately 3:15 p.m., Ms. Bouchard
was riding her bicycle in a northerly direction on Juniper Street
in Versailles Borough, Allegheny County, Pennsylvania.
2. Ms. Bouchard stopped her bicycle on the south side of the
crossing and at the right edge of the roadway, as a CSX train was
traveling eastbound (from Ms. Bouchard's left to her right)
through the crossing on the track closest to the south side of
the crossing. 3. The photographs attached as Exhibit "A" and "B" to CSX's
Request for Admissions Directed to Plaintiff are fair and
accurate representations of the Juniper Street crossing in
Versailles, Pennsylvania as it existed on May 25, 2005, and show
the vantage point of persons located on the south side of the
4. From the vantage point of Ms. Bouchard on the south side of
the crossing, the warning devices existing at the crossing
included flashing light signals, a sign that says "3 tracks," and
cross bucks, an "X" shaped sign which reads "Railroad Crossing."
5. On May 25, 2003, the weather was sunny and warm, and Robert
Dodds, a witness, was driving in a 1989 pickup.
6. As he approached the crossing, the flashing warning lights
on the south side of the crossing were in operation and were
7. When Mr. Dodds arrived at the crossing, Ms. Bouchard was
already stopped on the right edge of the roadway and the
eastbound train was in the crossing.
8. Mr. Dodds pulled his vehicle next to Ms. Bouchard so that he
was located to her left on the south side of the crossing.
9. From his and Ms. Bouchard's vantage point, the eastbound
train was on the inside track (i.e. the first track closest to
Ms. Bouchard and Mr. Dodds), and was traveling from their left to
10. The flashing lights on the south side of the crossing were
operational (at least when Mr. Dodd first approached), and Ms. Bouchard was located five
feet south of the flashing light, far enough back that she could
see the flashing lights.
11. Mr. Dodds never observed the warning lights stop flashing,
but he also did not look at them after he first approached the
12. Mr. Dodds recalled giving a statement to CSX claims
representative and he recalled saying that "the crossing lights
were still going and the girl took off on her bike and a train
going the other way hit her."
13. When Ms. Bouchard was learning how to drive at age 16, over
eight years prior to this accident, her mother told her that when
she came to a railroad crossing with red flashing lights, she was
supposed to stop, wait until the lights stopped flashing, look
both ways, and be sure the crossing was clear before proceeding.
14. According to plaintiff, Ms. Bouchard and Mr. Dodds waited
about five to ten minutes for the eastbound train to pass through
the crossing. Defendant contends that Ms. Bouchard and Mr. Dodds
waited five minutes for the train to pass.
15. According to defendant, as soon as the eastbound train
cleared the crossing, Ms. Bouchard glanced from her left to her
right, and then "took off" on her bicycle, while Mr. Dodds
remained stationary in his vehicle and never took his foot off
the brake. Whereas, plaintiff alleges that after the eastbound
train (the first train) had cleared the crossing by about 50 feet
and before pedaling into the crossing, Ms. Bouchard looked to her
left and to her right, but because the first train blocked her
vision of the second train, she did not see that train.
16. As Ms. Bouchard was pedaling over the crossing onto the
second track, the right front of the westbound CSX locomotive
struck the back tire of Ms. Bouchard's bicycle. 17. On the date of the accident, Jeffrey Taylor, who was
sitting on the right side of the locomotive cab, was the engineer
and operator of the westbound CSX train traveling on the second
or middle track, and Brian Frazee, who was sitting to the left of
Mr. Taylor, was the conductor.
18. Defendant contends that Mr. Taylor was certified as a
locomotive engineer by the Federal Railroad Administration
("FRA") beginning in March, 1999 and was certified to operate the
train on the date of the accident. Plaintiff disputes this
contention and states that Mr. Taylor was required to receive
certification of his Operating Rule in 2003 and the records show
that he had not done so and thus he was not certified to operate
the train on the day of the incident.
19. Defendant claims that Mr. Frazee was qualified as a
conductor as of May 25, 2003, and was up to date on his operating
rules test. Plaintiff disputes this contention and states that
Mr. Frazee was not up to date on his operating rules test and had
not been certified for the year of the incident.
20. The train was traveling from Cumberland, Maryland to New
21. There were no mechanical difficulties with the train during
the trip from Cumberland to New Castle.
22. Beginning at milepost 309.7, before the Center Street
crossing (which is east of Juniper Street crossing), Mr. Taylor's
westbound train entered the 40 mph speed restriction on the
track, and thereafter the speed of the locomotive never went
above 40 mph.
23. CSX locomotive 219 was the lead locomotive of the westbound
train, and was traveling on a class 3 track as defined by the
Federal Railroad Administration with a maximum allowable
operating speed for freight trains of 40 mph. 24. The applicable CSX timetable for this area also provides a
maximum authorized speed of 40 mph for freight trains.
25. Defendant contends that the data table from the event
recorder download of CSX locomotive 219 shows that Mr. Taylor was
blowing the horn and ringing the bell for the Center Street
Crossing and then the Juniper Street crossing before an emergency
application of the brakes was made. Plaintiff disputes the
contention that Mr. Taylor blew the horn and rang the bell at the
Juniper Street crossing because Mr. Dodd testified that he did
not hear the bell or the horn until after the train hit Ms.
26. From the time Mr. Taylor reached milepost 309.7, before the
Center Street crossing, to the time the train as placed into
emergency, the speed of the train never exceeded 40 mph.
27. After passing through the Center Street crossing and around
a curve in the track toward the Juniper Street crossing, Mr.
Taylor was not able to see the entirety of the Juniper Street
crossing due to the presence of the eastbound train to his left,
which blocked his view.
28. According to defendant, Mr. Taylor was able to view the
crossing from the position of the eastbound train all the way to
his right, and he observed that all sets of the flashing warning
lights on the north side of the crossing were operating.
Plaintiff disputes this contention and argues that Mr. Taylor
could not see if the south side crossing lights were flashing and
he never checked to see if they were active as he was approaching
the crossing or after he went through the crossing.
29. According to defendant, Mr. Taylor activated the
appropriate horn sequence (two longs, a short and a long) and the
bell approximately 15 to 20 and 1000 feet before the Juniper
Street crossing. Plaintiff disagrees with this contention and
cites to the testimony of Mr. Dodd, who stated that he did not hear any audio warnings.
30. Defendant contends that as Mr. Taylor approached the
crossing he estimated that he could first see the end of the
eastbound train when his train was approximately 300 feet from
the Juniper Street crossing. Plaintiff denies this contention and
cites generally to page 3, paragraph 6 of her expert report,
which states that had the engineer blown long distinct whistle
blasts at the whistle post, followed by a frantic succession of
whistle blast when it was clear they would be passing the end of
another train, Ms. Bouchard would not have been killed.
31. Mr. Taylor further stated that he was approximately 90 feet
away from the Juniper Street crossing when he realized that the
rear of the eastbound train would clear the crossing before his
train reached the crossing. Plaintiff denies this contention and
again cites generally to page 3, paragraph 6 of her expert
report, which states that had the engineer blown long distinct
whistle blasts at the whistle post, followed by a frantic
succession of whistle blast when it was clear they would be
passing the end of another train, Ms. Bouchard would not have
32. Mr. Taylor estimated that he was 50 feet away from the
crossing when he first realized that the eastbound train had
cleared the Juniper Street crossing. Again, plaintiff denies this
contention and cites generally to page 3, paragraph 6 of her
expert report, which states that had the engineer blown long
distinct whistle blasts at the whistle post, followed by a
frantic succession of whistle blast when it was clear they would
be passing the end of another train, Ms. Bouchard would not have
33. Mr. Taylor stated that he was "right there," 50 feet away,
perhaps, from the crossing when he first recognized that there
was a person to his left. Plaintiff does not dispute that Mr.
Taylor made this statement for purposes of this motion. 34. According to defendant, Ms. Bouchard first came into Mr.
Taylor's view, when she was on her bicycle on track number two.
Plaintiff disputes this contention but does not offer a counter
statement on this issue.
35. According to defendant, when Mr. Taylor first saw Ms.
Bouchard, she was looking straight ahead, from the south to the
north. Again, plaintiff disputes this contention but does not
offer a counter statement on this issue.
36. According to defendant, Mr. Taylor continued to watch Ms.
Bouchard travel over the crossing until he could no longer see
her because she had pedaled into the blind spot underneath the
nose of the engine. Again, plaintiff disputes this contention but
does not offer a counter statement on this issue.
37. According to defendant, just prior to that point, Ms.
Bouchard looked up and to the right, and Mr. Taylor estimated
that one to two seconds elapsed from the time he saw Ms. Bouchard
look to the right until the impact. Plaintiff again denies this
38. According to defendant, Mr. Taylor was blowing his horn in
the last long of the horn sequence, approximately 5 to 6 seconds,
when the impact occurred, and the horn stopped blowing some time
after the impact. Plaintiff disputes this contention and cites
the testimony of Mr. Dodd, who stated that he did not hear the
horn until after the impact.
39. According to defendant, although it was difficult for Mr.
Taylor to determine if the impact occurred before or after he
applied the emergency brakes, Mr. Taylor testified that the
brakes were applied simultaneously with impact. Plaintiff again
disputes this contention and cites to the testimony of Mr. Dodd.
40. Ms. Bouchard died as a result of the accident. 41. On April 15, 1963, the Pennsylvania Public Utility
Commission ("PUC"), upon its own motion, instituted a complaint
at docket number 17847 for purposes of determining whether the
Juniper Street crossing should be altered, relocated, abolished
and/or whether protective devices should be installed at the
42. A hearing was held on August 7, 1963, and evidence was
adduced that 7 accidents had occurred at the Juniper Street
crossing between 1944 and 1963.
43. During that hearing, the Baltimore & Ohio Railroad
(predecessor to CSX) provided a 24-hour traffic count of the
crossing, which included 33 children, 113 adults, 297
automobiles, 170 trucks, one miscellaneous highway move, and a
total of 37 trains, plus two switching moves.
44. In its order of February 3, 1964, the PUC required the
installation of automatically operated flashing-light signals at
the crossing, the cost to be borne between the railroad, the
Borough of Versailles, and Allegheny County.
45. Prior to the PUC's order, the Juniper Street crossing was
equipped only with two standard crossing signs.
46. According to defendant, CSX does not have any records,
reports or knowledge of any accidents involving railroad trains
and a motor vehicle or pedestrian since the installation of the
47. The PUC has records of only two actions involving the
Juniper Street crossing; (1) the complaint filed by the PUC at
docket number 17847; and (2) an application by a company named
"Lightnet" for installation of fiber option cable filed at docket
II. Standard of Review
Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "`if
the 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." Woodside v.
School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d
Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477
(3d Cir. 2001) (citations omitted). In deciding a summary
judgment motion, the court must "view the evidence . . . through
the prism of the substantive evidentiary burden" to determine
"whether a jury could reasonably find either that the plaintiff
proved his case by the quality and quantity of the evidence
required by the governing law or that he did not." Anderson v.
Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002),
quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
When the non-moving party will bear the burden of proof at
trial, the moving party's burden can be "discharged by `showing'
that is, pointing out to the District Court that there is an
absence of evidence to support the non-moving party's case."
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the
moving party has carried this burden, the burden shifts to the
nonmoving party who cannot rest on the allegations of the
pleadings and must "do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986);
Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co.,
998 F.2d 1224, 1230 (3d Cir. 1993). Thus the non-moving party cannot
rest on the pleadings, but instead must go beyond the pleadings
and present "specific facts showing that there is a genuine issue
for trial," Fed.R.Civ.P. 56(e), and cannot rely on unsupported
assertions, conclusory allegations, or mere suspicions in
attempting to survive a summary judgment motion. Williams v.
Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing
Celotex, 477 U.S. at 325 (1986)). The non-moving party must respond "by pointing to
sufficient cognizable evidence to create material issues of fact
concerning every element as to which the non-moving party will
bear the burden of proof at trial." Simpson v. Kay Jewelers,
Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998),
quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir.
"In considering a motion for summary judgment, a district court
may not make credibility determinations or engage in any weighing
of the evidence; instead, the non-moving party's evidence `is to
be believed and all justifiable inferences are to be drawn in his
favor.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)." Marino v. Industrial Crating Co., 358 F.3d 241, 247
(3d Cir. 2004.) See also Doe v. County of Centre, PA,
242 F.3d 437, 446 (3d Cir. 2001) (court must view facts in the light most
favorable, draw all reasonable inferences, and resolve all
doubts, in favor of the nonmoving party).
Defendant has moved for summary judgment arguing (A) that
defendant was not negligent as a matter of law for the following
reasons: (1) it owed no common law duty to plaintiff's decedent
to provide any particular and/or additional warning devices at
the subject crossing, and any such argument is subject to
preemption because the PUC has exclusive authority to design and
construct railroad crossings; (2) there is no genuine issue of
material fact regarding whether the railroad initiated a proper
warning horn; (3) there is no genuine issue of material issue of
fact regarding whether the railroad was negligent in removing
safety and warning devices at the crossing because the records
from the PUC do not establish that any safety or warning devices
were removed therefrom; (4) the theory of excessive speed is
preempted by federal law and is without any factual support; (5)
the theory of failure to maintain proper personnel for operating the train theory is preempted by federal
law; and (6) there is no evidence of record to support
plaintiff's claim that defendant was negligent for failing to
stop the train before impact, in maintaining an improper braking
system, and in failing to maintain proper equipment and weight
for the train in question;*fn2 and, (B) that plaintiff was
sufficiently contributorily negligent*fn3 to bar recovery as
a matter of law.
The parties agree that Pennsylvania substantive law applies to
this case. Under Pennsylvania common law, to prove a claim of
negligence against CSX, plaintiff must demonstrate a duty on the
part of CSX, breach of that duty, proximate causation and
damages. Reilly v. Tiegarten, Inc., 633 A.2d 208 (Pa. Super.
1993). A. Defendant is not negligent as a matter of law
In her complaint, plaintiff alleges that CSX was negligent in
failing to provide sufficient warning devices at the Juniper
Street crossing, such as warning lights, traffic control devices,
and gates. In McGlinchey v. Baker, 356 F.Supp. 1134, 1142 (E.D.
Pa. 1973), the District Court held that a railroad is under no
duty to place safety gates or any particular type of safeguard at
a crossing, but only must adopt a reasonably safe and effective
mode, commensurate with the danger at the crossing, of warning
travelers of the approach of trains. In Yolton v. Pennsylvania
Railroad Company, 84 A.2d 501 (Pa. 1951), the Supreme Court of
Pennsylvania noted that plaintiff has the burden of proof to show
unusual, peculiar and extra hazardous conditions at the crossing
for the railroad to be charged with the duty of providing
additional warning devices.
As the facts indicate, the subject crossing was equipped with
flashing warning lights, as well as a sign reading "3 tracks,"
and crossbucks. Plaintiff has failed to put forth any competent
evidence to demonstrate some unusual, peculiar or extra hazardous
conditions necessary to support her argument of negligence. Thus,
as a matter of law, the railroad had no common law duty to
provide any particular and/or additional warning devices, thereby
necessitating a dismissal of this claim of negligence against
With regard to plaintiff's assertion that defendant was
negligent because Mr. Taylor did not sound his horn, plaintiff
has failed to present evidence creating a genuine issue of
material fact regarding whether he sounded his horn. Plaintiff
contends, with no evidence to support her conclusion, that
because Mr. Dodd testified that he did not hear the horn and
whistle that somehow creates a genuine issue of fact regarding whether Mr.
Taylor did in fact blow the horn and whistle. Defendant presents
competent evidence, from the data recorder log, which establishes
that Mr. Taylor did blow the horn and ring his bell in compliance
with his duty to do so. That there is testimony that a witness
did not actually hear the horn sounding or the bell ringing does
not create a genuine dispute of fact as to whether defendant
complied with this duty, and therefore, plaintiff's claim of
negligence in this respect must also be dismissed.
Furthermore, there is no competent evidence to support
plaintiff's allegations that warning devices and/or safety gates
were removed. The records from the PUC indicate any and all
actions undertaken regarding the Juniper Street crossing (see
paragraph 47 of the undisputed facts), and those records do not
contain any facts supporting her allegations in this regard. The
testimony of two witnesses that safety gates were removed is not
sufficient evidence to create a genuine issue of material fact on
this issue. Moreover, as stated above, the subject crossing was
equipped with flashing warning lights, as well as a sign reading
"3 tracks," and crossbucks, and plaintiff has failed to put forth
any competent evidence to demonstrate some unusual, peculiar or
extra hazardous conditions necessary to support her argument of
negligence (i.e., the railroad had a common law duty to provide
any particular and/or additional warning devices).
Likewise, plaintiff's allegations that the train was traveling
at an excessive speed is not supported by the facts. Rather, the
evidence shows that the train did not exceed the posted speed
limit of 40 mph. Furthermore, and significantly, this Court
agrees that CSX Transportation v. Easterwood, 507 U.S. 658
(U.S. 1993) is controlling on the issue that federal law preempts
plaintiff's claim on an excessive speed theory. In Easterwood,
the United States Supreme Court specifically held that under the
Federal Railway Safety Act, federal regulations adopted by the Secretary of Transportation preempt a negligence action insofar
as it asserts that a train was traveling at an excessive speed.
Accordingly, plaintiff's claim of negligence related to excessive
speed fails as a matter of law.
With regard to plaintiff's claim that defendant failed to
maintain proper personnel for operating the train, plaintiff has
neglected to present any evidence showing that if, in fact, Mr.
Taylor and Mr. Frazee were not current on their certifications (a
fact which defendant disputes), that such failure to maintain
these certifications was a proximate cause of plaintiff's
B. Plaintiff is contributorily negligent as a matter of law
Section 3051 of 75 Pa.C.S.A. states that every person riding a
pedacycle upon a roadway shall be granted all of the right and
shall be subject to all of the duties applicable to the driver of
a vehicle. Because Ms. Bouchard was riding her bicycle at the
time of the accident, she is subject to all of the duties
applicable to a driver of a motor vehicle.
Pennsylvania law dictates that a driver of a motor vehicle must
stop, look and listen before entering upon a railroad crossing
and must continue to look and listen until having passed over the
crossing, and the failure to do so constitutes contributory
negligence as a matter of law. Tomasek v. Monongahela Ry. Co.,
235 A.2d 359, 362 (Pa. 1967).
In Baltimore & O.R. Co. v. Muldoon, 102 F.2d 151 (3d Cir.
1939), the United States Court of Appeals for the Third Circuit
No principle is more firmly imbedded in the law of
Pennsylvania than that a traveler who is about to
cross a railroad track must stop, look and listen.
This is an absolute and unbending rule of law. The
stopping, looking and listening must not be merely
nominal or perfunctory but substantial, careful and
adapted in good faith for the accomplishment of the
end in view. Failure to comply with the duty is not merely evidence of negligence
but is negligence per se, and is to be declared such
by the court.
102 F.2d at 152.
In Dolibois v. Pennsylvania Railroad Company, 82 A.2d 65,
67-68 (Pa. Super. 1951), the Superior Court stated:
[O]ur court have consistently held that if a driver
of a vehicle cannot obtain a reasonable view of a
railroad track due to an obstruction, before
proceeding onto the track, it is his duty to place
himself in a position where such an observation can
[O]ur Supreme Court said that the requirement to
stop, look and listen is not satisfied by coming to a
standstill at a point where observation cannot be
made, if there is apparent danger ahead, and that one
attempting a crossing must comply with this mandatory
duty, or no recovery can be had when damages are
In this case, the only competent evidence presented on the
issue of whether Ms. Bouchard complied with her duty to stop,
look and listen indicates that she did not. Mr. Dodd testified
that he witnessed Ms. Bouchard "glance" to the left and to the
right before proceeding. Further, Mr. Taylor testified that Ms.
Bouchard looked up and to the right one to two seconds prior to
impact. Plaintiff has presented no credible evidence to refute
this testimony, and as such her "glance" can only be categorized
as nominal or perfunctory.
As to whether plaintiff complied with her duty to listen for
the presence of an oncoming train, as rehearsed, plaintiff's
contention that because Mr. Dodd testified that he did not hear
the horn and whistle that somehow creates a material issue of
fact regarding whether Mr. Taylor did in fact blow the horn and
whistle is untenable.
Therefore, this Court finds that plaintiff's failure to observe
to the stop, look and listen rule constitutes contributory negligence, in an amount exceeding
50 percent, as a matter of law. See Gilbert v. Conrail, 14 Pa.
D & C 4th 147 (Pa. Com. Pl. 1992) (in the context of a summary
judgment motion, where plaintiff's decedent crossed railroad
tracks without looking and was struck by a train, a finding of
negligence exceeding 50 percent is warranted, and entitles
defendant railroad to judgment as a matter of law).
Even when viewing the facts in the light most favorable to
plaintiff, the non-moving party, this Court finds that she has
failed to adduce evidence creating a genuine issue of material
facts on her various claims of negligence, and accordingly, her
negligence claims against CSX fail as a matter of law. Further,
this Court finds that plaintiff's failure to stop, look and
listen constitutes contributory negligence to such a degree that
she is precluded from recovery as a matter of law. For these
reasons, defendant's motion for summary judgment will be granted
(doc. no. 35).
An appropriate order follows.
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