PRIOR HISTORY: Appeal
from the United States District Court for the Eastern District of
North Carolina, at New Bern. Terrence W. Boyle, Chief District
Judge. (CA-97-143-4-BO).
DISPOSITION: AFFIRMED.
OVERVIEW: Plaintiff's
pickup truck collided with defendants' train as the train was moving
over a crossing and tracks owned by defendant railway company.
Plaintiff brought suit, alleging negligence and gross negligence on
the part of defendants. The district court granted both defendants
summary judgment. On appeal, the court found that the district court
correctly found plaintiff contributorily negligent as a matter of
law. Plaintiff was familiar with the crossing, the crossing was well
marked, the train was already in the crossing when plaintiff struck
it, and the fog and darkness should have suggested to plaintiff that
he exercise extreme caution. Under North Carolina law, plaintiff's
contributory negligence acted as a complete bar to recovery.
OUTCOME: Judgment
affirmed; the district court correctly found plaintiff
contributorily negligent as a matter of law, and under North
Carolina law, contributory negligence acted as a complete bar to
recovery.
COUNSEL: ARGUED: Raymond
E. Dunn, Jr., DUNN & DUNN, New Bern,North Carolina, for
Appellant.
Randall R. Adams, POYNER
& SPRUILL, Rocky Mount, North Carolina, for Appellee CSX;
Christie McCallie Foppiano, BODE, CALL & STROUPE, L.L.P.,
Raleigh, North Carolina, for Appellee Norfolk Southern.
ON BRIEF: Rudolph A.
Ashton, III, MCCOTTER, MCAFEE & ASHTON, P.L.L.C., New Bern,
North Carolina, for Appellant.
Timothy W. Wilson,
POYNER & SPRUILL, Rocky Mount, North Carolina; John R. Jolly,
Jr., POYNER & SPRUILL, Raleigh, North Carolina, for Appellee
CSX; Odes L. Stroupe, Jr., BODE, CALL & STROUPE, L.L.P.,
Raleigh, North Carolina, for Appellee Norfolk Southern.
JUDGES: Before
WILKINSON, Chief Judge, and WILLIAMS and MOTZ, Circuit Judges.
OPINION: PER CURIAM:
Charles Adams' pickup
truck collided with a CSX train as the train was moving over a [*2]
crossing and tracks owned by Norfolk Southern. Adams brought suit,
alleging negligence and gross negligence on the part of CSX and
Norfolk Southern. The district court granted both defendants summary
judgment, finding Adams contributorily negligent as a matter of law.
We affirm the judgment of the district court.
I.
At approximately 6:15
a.m. on December 6, 1994, Charles Adams was driving to work in his
1992 Ford pickup truck on Windmill Road in Beaufort County, North
Carolina. The crossing at issue in this case is located two miles
from Adams' home. The tracks at the crossing are owned by Norfolk
Southern Railway Corporation.
As he approached the
crossing, Adams was traveling between 25 to 40 mph with his low
beams on. It was still dark and Adams encountered patchy fog. At the
last curve in the road before the crossing, the fog cleared. As
Adams cleared the curve onto the straight portion of the road just
before the crossing, Adams again encountered a thick fog. He reduced
his speed. He then saw black letters on the side of a dirty white
railcar. This car was part of a train owned by CSX Transportation
that was passing through the crossing. Adams' truck struck the train
between [*3] the seventeenth and eighteenth railcars.
Adams filed suit in
Beaufort County Superior Court against CSX, alleging negligence and
willful, wanton, and gross negligence. CSX removed the case to
federal district court based on diversity of citizenship. Adams then
filed suit in federal district court against Norfolk Southern, again
alleging negligence and willful, wanton, and gross negligence. The
cases against CSX and Norfolk Southern were consolidated. The two
defendants filed motions for summary judgment. The district court
granted their motions and dismissed the case, finding Adams
contributorily negligent as a matter of law. Adams now appeals.
II.
Having had the benefit
of oral argument and the parties' briefs, and after careful
consideration of the applicable law, we conclude that the district
court correctly found Adams contributorily negligent as a matter of
law. And [HN1] under North Carolina law, contributory negligence
acts as a complete bar to recovery. See Griffin v. Ward, 267 N.C.
296, 148 S.E.2d 133, 135-36 (N.C. 1966). *
* Adams contends that
[HN2] under North Carolina law a plaintiff's contributory
negligence will not preclude recovery for injuries proximately
caused by a defendant's willful, wanton, and gross negligence. See
Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 361 S.E.2d
909, 914 (N.C. Ct. App. 1987). We agree with the district court,
however, that Adams has failed to make any showing of willful,
wanton, or gross negligence on the part of either CSX or Norfolk
Southern.
[*4]
The evidence in this
case, even when viewed in the light most favorable to Adams,
establishes that Adams was contributorily negligent as a matter of
law. Adams had traversed this specific crossing at least twice a
week for four years. Adams thus not only knew of the existence of
the crossing but also its layout and configuration. In addition, the
crossing had three separate warning signs: a yellow railroad warning
sign 657 feet from the crossing; a fifty-foot-long railroad sign
painted on the surface of Windmill Road approximately 320 feet from
the crossing; and a white crossbuck sign with black lettering
reading "Railroad Crossing" immediately prior to the
crossing.
Moreover, Adams struck
the CSX train between the seventeenth and eighteenth railcars. This
means that the train was already in the crossing as Adams
approached. Adams also had his window halfway down as he approached
the crossing through which the two-engine, sixty-one car freight
train was passing. And the fog and darkness that morning should have
suggested to Adams that he exercise extreme caution.
Accordingly, we affirm
on the reasoning of the district court.
AFFIRMED
