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Collins v. CSX Transportation Inc.3/15/1994
ly an unobstructed view down the tracks. On the average, 23 trains per day passed over these tracks. A moderate number of automobiles (approximately 370 per day) used the rural road although it is unclear whether this number traversed the crossing. The train was burning its headlights, traveling at the maximum speed limit of 70 m.p.h., and, according to plaintiff, failed to sound its horn. Plaintiff also offered expert opinion testimony that this crossing was extrahazardous and mechanical warning devices were needed.
Assuming arguendo that the conditions of the crossing at issue rendered it "extrahazardous," we hold defendant's failure to implement more extensive signalization did not rise to the level of "gross negligence." Plaintiffs argument to the contrary relies heavily upon Robinson v. Seaboard System R.R., 87 N.C. App. 512, 361 S.E.2d 909 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988), wherein this Court held an instruction on willful and wanton negligence was supported by the evidence. In Robinson, railroad employees, in knowing violation of their company's internal safety procedures, left boxcars parked on a storage track within 30' of a crossing within the Raleigh city limits. Although the train crossing was not a public one, railroad authorities were aware the crossing was in use. They further acknowledged that placement of boxcars in such close proximity to a crossing created a dangerous situation. Robinson, 87 N.C. App. at 521-22, 361 S.E.2d at 915.
The case sub judice may readily be distinguished from Robinson. Plaintiff's accident occurred on a rural road with much greater visibility; defendants did not actively place any obstructions near the tracks; and no evidence indicated knowledge on the part of defendants of any special danger presented by this rail crossing. Furthermore, there is no evidence the train conductor's acts or omissions rose to a heightened level of culpability. Even though plaintiff alleges gross negligence (as opposed to willful and wanton negligence at issue in Robinson), his argument fails. The circumstances depicted are more analogous to a typical rural grade crossing, and are notably similar to other cases wherein only the issue of "ordinary" negligence was submitted. See Harper, 211 N.C. 398, 190 S.E. 750; Finch, 195 N.C. 190, 141 S.E. 550. Accordingly, even if defendants' gross negligence were held to overcome plaintiff's contributory negligence (and we expressly decline to decide that issue), there is not a sufficient basis in the evidence to support an instruction on gross negligence.
No error.
Judges Eagles and Martin concur.
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