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Union Pacific Railroad Company v. Barber2/26/2004
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Vernon Thweatt testified about the same incident. He stated that the vegetation was overgrown at Crossing 123 and that he used it about four times per week. At the time of the incident, he was driving south towards the crossing with his wife and two children in the car. Vernon first checked to see that the east was clear and then turned to the west. As he was looking to the west, his wife screamed that a train was approaching from the east. He immediately applied his brakes at which point his bumper was within ten feet of the track. Vernon testified that the train did not sound its whistle or bell at the crossing. Vernon was also unable to identify the train as either a Union Pacific or Burlington Northern train and never made a complaint to the railroad.
Troy Meredith testified that he traveled north over Crossing 123 several times on his way to sites where he searched for arrow heads. Mr. Meredith confirmed that the brush and shrubbery on the south side of the track blocked his view to the east as he traveled north. He had an incident in the fall of 1997 at Crossing 123 while traveling north over the tracks where he had to "goose car and jump across the track in order to keep from getting hit." As he approached the crossing, he first looked to his west. When he looked to the east, the brush and shrubbery blocked his view. He continued to move forward looking to the east and by the time he could see the westbound train he was in a position where the train would have hit him if he did not continue across the tracks.
Lastly, Ray Thweatt testified that he had been using Crossing 123 for fifty to sixty years. Ray also confirmed that the vegetation to the east blocked his view of the track. Twice in 1997, while traveling north over the crossing, he got so close to the tracks that he was startled when he finally saw an eastbound train.
In this case, Mr. Barber's accident resulted as the Union Pacific train traveled east and the garbage truck traveled north over the crossing. Susan and Vernon Thweatt's near miss stemmed from a southbound approach to the crossing and a westbound train. Mr. Meredith's incident, on the other hand, occurred while he traveled north over the crossing and the train traveled west. In First Security Bank v. Union Pac. R.R. Co., 152 F.3d 877 (8th Cir. 1998), the Eighth Circuit Court of Appeals concluded that the trial court did not err in excluding prior accidents where the drivers and the plaintiff were traveling in opposite directions, and, thus, had entirely different perspectives of the crossing. Likewise, Susan and Vernon Thweatt's view of the crossing from the north side was entirely different from the garbage truck driver's view on the south side of the crossing. The vegetation on the north side of the track has little relevance in determining a view from the south side of the crossing. We conclude that the trial court abused its discretion in admitting Susan and Vernon's testimony.
Nonetheless, the danger complained of stemmed from overgrown vegetation on the south side of the track. The cause of the accident was impaired visibility to northbound travelers as a result of overgrown vegetation on the south side of the track. For both Mr. Meredith and Mr. Barber, the view to the east was obscured by the vegetation on the south side of the track as they approached the crossing heading north. One difference in the circumstances of the accident and Mr. Meredith's near miss is that the trains were traveling in different directions. The issue here, however, is whether the vegetation on the south side of the track was a danger to northbound travelers regardless of which direction the train was traveling. Mr. Meredith's testimony r
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