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Duncan v. Kansas City Southern Railway Co.10/30/2000
testimony from a witness to the accident that Mitchell did not stop at the stop sign and with his own admission that he did see the signs and was aware of the railroad crossing. However, Mitchell's deposition testimony never fully answered the question of whether he stopped for the stop sign, the cattleguard, or both. There was no evidence that Mitchell was speeding or intoxicated at the time of the accident, and given the fact that he was driving children home from church services, it is safe to assume he was not attempting to outrun the locomotive. He said he never saw the train, thus his negligent conduct of proceeding across the tracks was more than likely inadvertent.
Admittedly, failing to stop for a stop sign at a railroad crossing creates a great risk of harm. Further, the jurisprudence imposes upon drivers a duty to look and listen for possible oncoming trains before traversing the crossing. Glisson v. Missouri Pac. R.R. Co., 246 La. 470, 476, 165 So. 2d 289, 291 (1964). While the law does not require motorists to stop at every railroad crossing, Mitchell was required by law to stop for the stop sign at this crossing. His failure to do so was negligent and the jury was correct in allocating fault to his conduct. Nonetheless, the unique situation created by this particular crossing militates against finding Mitchell solely at fault. Testimony was presented that the East Iowa Road crossing presented a unique situation since less than 200 feet after crossing the railroad tracks, there is a stop sign at the intersection of East Iowa Road and Highway 27. Approximately, 80 feet before the crossing there is a rough cattleguard requiring drivers to stop or slow to cross. Thus, before reaching the railroad crossing, drivers have to slow down or stop for the rough cattleguard, then proceed another 40 feet and stop for the stop sign before the crossing. When drivers are slowed down or stopped for the cattleguard, the view of the tracks is obstructed by ground cover. At the stop sign, the view is unobstructed; however, the expert testified that most drivers have focused their attention on the intersection of Highway 27 by the time they reach this stop sign.
The jury also heard testimony that KCS knew of the unique situation posed by this crossing before the accident, they had knowledge of prior accidents at the crossing and other complaints about the crossing. KCS took no steps to remove the groundcover or to install additional warning devices. Based on evidence that a driver's view of an oncoming train is obscured by groundcover at the cattleguard, if Mitchell only stopped at the cattleguard, he would not have seen the northbound train approaching. Sight is not obscured for drivers who stop at the stop sign, a mere 40 feet from the cattleguard; however, testimony was also presented that eighty to eighty-five percent of drivers do not stop at stop signs. While in no way condoning the driver's failure to stop at a stop sign, given the unique situation presented by this crossing, we cannot say reasonable persons could not have allocated a share of fault to KCS. We can, however, say that KCS was no more at fault than Mitchell and the trial court's allocation of fault, 68.94% to KCS and 31.06% to Mitchell, was clearly wrong. Given the duty to establish a high/low range for fault, and exercising such in deference to the trier of fact, we find KCS was no more than 50% at fault, but at least, 25% at fault. Further, Mitchell was at least 50% at fault, but no more than 75% at fault. Accordingly, we increase Mitchell's fault to 66.67% and reduce KCS' fault to 33.3%.
EXCESSIVE DAMAGES
Finally, we turn our attention to the last assignment of error raised by KCS, whether the jury's award
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