MANUELA DOMINGO GASPAR GONZALEZ, PERSONAL REPRESENTATIVE OF THE ESTATE OF EFRAIN RAMOS-DOMINGO, DECEASED, APPELLANT,
UNION PACIFIC RAILROAD COMPANY, APPELLEE
Appeal from the District Court for Colfax County: Mary C. Gilbride, Judge.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, P.C., L.L.O., and Horacio J. Wheelock, of Law Office of Horacio Wheelock, for appellant.
Mark E. Novotny and Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, and CASSEL, JJ. MILLER-LERMAN, J., not participating. HEAVICAN, C.J., dissenting. CASSEL, J., joins in this dissent.
[292 Neb. 282] Wright, J.
NATURE OF CASE
On July 27, 2005, 13-year-old Efrain Ramos-Domingo (Efrain) was struck and killed by a Union Pacific Railroad [292 Neb. 283] Company (Union Pacific) train in Schuyler, Nebraska. Manuela Domingo Gaspar Gonzalez (Plaintiff), Efrain's mother, as personal representative of Efrain's estate, filed a wrongful death action against Union Pacific. Union Pacific moved for summary judgment on the wrongful death claim, which motion the district court sustained. The court concluded that as a matter of law, Union Pacific had not violated its standard of care, and that Efrain had violated his duty to look and listen for the oncoming train. We reverse, and remand for further proceedings.
SCOPE OF REVIEW
In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party
against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015); Dresser v. Union Pacific RR. Co., 282 Neb. 537, 809 N.W.2d 713 (2011).
To entitle a defendant to judgment under the comparative negligence statutory scheme, the defendant must prove that any contributory negligence chargeable to the plaintiff is equal to or greater than the total negligence of all persons against whom recovery is sought. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007), modified on denial of rehearing 274 Neb. 267, 759 N.W.2d 113.
Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Estate of Powell v. Montange, 277 Neb. 846, 765 N.W.2d 496 (2009).
At the railroad crossing in Schuyler, there are two sets of tracks, one for eastbound trains and one for westbound [292 Neb. 284] trains. On the date of the accident, an eastbound train was on the south track and a westbound train was on the north track. They passed each other just east of the railroad crossing. At approximately 1 p.m., Efrain proceeded to cross from the south set of railroad tracks after the eastbound train had passed. Efrain was struck and killed by the westbound train as he tried to cross the north set of tracks.
In Plaintiff's initial complaint, she alleged claims for wrongful death and breach of fiduciary duty. The district court granted a motion to dismiss filed by Union Pacific with respect to the wrongful death claim and granted Union Pacific's motion for summary judgment on the breach of fiduciary duty claim. Plaintiff appealed. We affirmed the district court's order in the breach of fiduciary duty claim, but reversed the court's order regarding Plaintiff's wrongful death claim. See Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011).
In the operative complaint filed after remand, Plaintiff alleged that Efrain's death was caused by Union Pacific's negligence. It was alleged that the noise of one train was loud enough to prevent a pedestrian from determining whether there was one train or two at the crossing.
Both parties offered evidence at a summary judgment hearing. The district court took judicial notice of all the exhibits that had been offered by the parties in prior hearings. Included in the evidence was a summation of data collected by Union Pacific from an event recorder on the eastbound train. According to that summation, the last car of the eastbound train cleared the crossing 7.1 seconds prior to the time the westbound train struck Efrain. The lead locomotive on the westbound train became even with the last car of the eastbound train approximately 250 feet east of the crossing. The westbound train was traveling at 59 m.p.h., and there was evidence that the view of the westbound train would have been obscured to one waiting at the south side of the crossing until approximately 2.9 seconds prior to the time the train entered the crossing.
[292 Neb. 285] Union Pacific offered the deposition testimony of the conductor and the engineer of the westbound train. The conductor did not recall seeing the eastbound train. He stated that 5 or 6 seconds before the westbound train entered the crossing, he could see cars stopped on both sides of the railroad tracks and see the
crossing gates were down. A second or two before the westbound train entered the crossing, he saw Efrain maneuver his bicycle around the driver's side of a car that was stopped in the first position south of the closed gate and then enter the crossing. Efrain was not on the sidewalk but, instead, was in the middle of the street as he entered the crossing.
The conductor believed the train's horn was blowing, and when he stood up, he saw Efrain and made eye contact with him. The conductor testified that Efrain " got off the seat of his bicycle with both feet on the pedals" and that he thought the boy was going to stop. He stated that Efrain pedaled a few more times and, at the last second, he took his eyes off the train and tried to make it across. The conductor thought for a split second that Efrain might make it, and then he heard the collision.
The westbound train's engineer testified he did not recall seeing an eastbound train. He did not see Efrain, but he did see two boys cross safely as the train approached. He recalled those boys crossing either before the gates went down or as the gates were going down. He then heard the conductor yell that he saw a boy on the tracks, and he immediately applied the emergency brake. The engineer reviewed the data from the train's event recorder and stated that it appeared the train horn stopped sounding 2 or 3 seconds before the accident.
A claims representative for Union Pacific stated in an affidavit that based upon his investigation, the westbound train's horn was blowing " at the appropriate time as it approached the crossing." He averred that the gates, lights, and other signals at the crossing were actively and properly working. Union Pacific's manager of signal maintenance also testified [292 Neb. 286] that all the lights and signals at the crossing were working properly on the day of the accident.
At the time of the accident, one witness was stopped in a vehicle at the south side of the crossing. In his affidavit, he stated that he saw several boys try to cross the tracks after the eastbound train passed and that, at that time, it was hard to see the approaching westbound train because the eastbound train was blocking the view of the tracks looking eastward.
Plaintiff's expert, Charles Culver, was a locomotive engineer with 44 years of railroad industry experience and a railroad safety instructor. He explained how train crews warn vehicular and pedestrian traffic of a train's approach. Culver opined that based on the configuration of the tracks at the crossing, the view of the approaching westbound train would have been obstructed " until the eastbound train had cleared the leading locomotive of the westbound train."
Culver stated that Efrain was not provided with the required warnings of the westbound train's approach to the crossing. He stated that applicable federal regulations and Union Pacific's general operating rules in effect in 2005 required a train horn to sound for at least 15 seconds prior to entering a crossing and to sound the horn all the way through the crossing. Culver reviewed the horn activation records from the westbound train and concluded that its horn sounded for 12 seconds prior to entering the intersection, but did not sound for the 3 seconds prior to the collision. He opined that the westbound train approached the crossing at a rate of 86.7 feet per second and that a proper audible warning was " crucial for safe railroad operation." He further opined that Union Pacific's failure to comply with the rules and regulations relative to audible warnings was a matter of negligence on the part of Union Pacific.
The district court entered summary judgment in favor of Union Pacific. The court concluded that Union Pacific did not breach its standard of care. It also concluded that Plaintiff's assertions about the sounding of the train's horn and the [292 Neb. 287] reduced visibility at the crossing were " speculative [at] best and . . . not sufficient to create a material issue of fact on the issue of breach of the standard of care." It concluded that as a matter of law, Efrain violated his duty to look and listen for the approaching train and to obey the crossing gate by maneuvering around the closed gate and attempting to cross the intersection. Plaintiff filed this timely appeal.
ASSIGNMENTS OF ERROR
Plaintiff assigns as error, summarized and restated, that the district court erred in finding there was no genuine issue of material fact as to whether Union Pacific breached its duty of care and erred in finding as a matter of law that Efrain's failure to follow ...