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Payne v. Cornhusker Motor Lines8/9/2005
rding the collision as follows:
We were leaving Paragould. Like I had said, I was belling up speed. There's Goldsmith crossing right before your whistle board, about a quarter of a mile. I started blowing my whistle. I noticed out of the corner of my eye this tractor-trailer coming up. And two longs, two short, that's the performance of your duties. I do not believe the man ever seen me. I never seen him. I could see him. When I got close enough that I could see him I was still doing my two longs and two shorts. But within the last ten seconds or so, I laid on it continuously because he didn't appear like he heard or seen me. And the tractor-trailer pulled up on the crossing. I big-holed the train.
Plaintiff testified that it was common for vehicles to approach crossings and he expected the tractor-trailer to stop. He testified that he saw the cab of the tractor-trailer dip down twice and he thought that meant the tractor-trailer was attempting to stop. Plaintiff said that when the train reached the crossing, the cab of the tractor-trailer was on the tracks and Plaintiff saw the Sheppard looking north, away from the train. Plaintiff could observe the crossing before the whistle board, and his view was unobstructed. Plaintiff said he was trained to throw the train into emergency to save "life or limb" and that the train emits noise when thrown into emergency.
He testified that as he approached the crossing he had one hand on the whistle and his other on the brake valve. Plaintiff also stated that when the collision occurred, he put the train into emergency stop.
He testified that the inertia of the train prevented it from stopping immediately on the tracks. When asked how far past the crossing the train stopped, Plaintiff testified, "I would say about three quarters of a mile, from a half to three quarters, or every bit of that." Plaintiff also testified:
Q: (By Plaintiff's counsel) Charlie, was there anything you could do to slow down or stop that train when you saw that guy run the stop sign?
A: No.
Q: Absolutely nothing you could do?
A: No.
Q: All you could do was blow your whistle and hope; is that right?
A: Yes.
When asked what happened to him physically during this collision, Plaintiff said:
Again, inertia of the tonnage and the impact send - in my seat, I was slammed forward to the front and back and forth from the train, the slack going in and out, sliding forward, the load set up, train set up. And that's the effect it gives. I was slammed down to the floor, banged around from the fire wall to the control stand before I fell. And that's where I wound up was between the floor and the fire wall next to the control stand there.
He testified that he had a window open and glass and parts of the tractor-trailer were flying in the window. He clarified that he was thrown back and forth multiple times and he ended up on the floor. Plaintiff also testified that after he got home, he had pain and numbness in his hands and back, but that he could not see his doctor immediately because the doctor was on vacation.
On cross-examination Plaintiff testified that he was able to see the crossing before he reached the whistle board and that his practice was to start blowing the whistle before he even reached the whistle board. He testified that he had not yet reached the whistle board when he first saw the tractor-trailer. Plaintiff stated that he was operating the train at a speed of 40-43 miles per hour when he first saw the tractor-trailer and he was still building speed. He said that he did not know how close the tractor-trailer w
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