WANDA E. MOORE, et. al., Plaintiffs, v. CSX CORPORATION, Defendant.

No. 5:94-CV-596-BR(1)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, WESTERN DIVISION

1995 U.S. Dist. LEXIS 7213

May 3, 1995, Decided

May 3, 1995, FILED

DISPOSITION: [*1] Motion by defendant for Summary Judgment is ALLOWED and this action is DISMISSED.

OVERVIEW: After their son was killed in a collision with a train at a railroad crossing, the administrators filed a wrongful death action against the company, alleging that the train engineer was employed by the company, that he operated the train on the company's behalf, and that he did so in a negligent manner. In its answer, the company denied ownership of the train, denied negligence, and pled contributory negligence. The company later filed a motion for summary judgment. The court granted the company's motion, holding that: (1) the company had established that the train was owned and that the engineer was employed by the company's wholly-owned subsidiary, and plaintiffs, by failing to show either fraud or that the subsidiary was a mere instrumentality of the company, failed to show any reason why the company should be held responsible for the actions of its subsidiary; (2) plaintiffs offered no evidence in support of the allegations of negligence contained in the complaint; and (3) the decedent was contributorily negligent as a matter of law because there was nothing to keep him from seeing the train and yielding the right of way.

OUTCOME: The court denied the company's motion for summary judgment in the administrators' wrongful death action.

COUNSEL:

For WANDA E. MOORE, JIMMY A. MOORE, both Co-Administrators of the estate of Jonathan Exum Moore, plaintiffs: Robert V. Lucas, Lucas, Bryant & Denning, Selma, NC.

For CSX CORPORATION, defendant: John R. Jolly, Jr., Poyner & Spruill, Raleigh, NC. Randall R. Adams, Poyner & Spruill, Rocky Mount, NC.

JUDGES: W. EARL BRITT, United States District Judge

OPINION BY: W. EARL BRITT

OPINION:

ORDER

Before the court is defendant's Motion for Summary Judgment. The matter has been fully briefed and is ready for ruling.

I

The case was instituted in the Superior Court Division of the General Court of Justice of Johnston County, North Carolina on 15 July 1994 and removed to this court on 11 August 1994. Discovery has been completed and the case is currently scheduled for trial on 5 June 1995.

II

Plaintiffs, Wanda E. and Jimmy A. Moore, are the parents and co-administrators of the estate of their son, Jonathan Exum Moore, who was killed in a collision with a train at a grade crossing in Johnston County at approximately 10:30 p.m. on 22 September 1992 and bring this wrongful death action based on negligence. In particular, plaintiffs allege that the engineer operated the train in the following negligent respects: (a) without maintaining proper control; (b) without maintaining a proper lockout; (c) at a speed greater than was reasonable; (d) by failing to decrease the speed as necessary to avoid a collision; (e) by failing [*2] to decrease speed when approaching and crossing an intersection; and, (f) in a careless and reckless manner. Plaintiffs further allege that the engineer Was employed by defendant and operated the train on defendant's behalf. In its answer defendant denied ownership of the train, denied negligence and pled, among other things, contributory negligence.

Defendant filed the sworn affidavits of John Morrison Poole, the engineer, JoAnn R. Tolson, a claims representative of CSX Transportation, Inc., and, H. Dean Thomerson, Jr., Claims Manager for CSX Transportation, Inc., in support of its motion. Plaintiffs filed their individual sworn affidavit in opposition.

III

[HN1] A motion for summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56.

Defendant asserts three grounds in support of its motion: (1) That it was not the owner of the train; (2) That there is a lack of evidence of any negligence in the operation of the train; and, (3) [*3] Contributory negligence, as a matter of law, on the part of plaintiffs' intestate. The contentions will be addressed in the order presented.

(1) Ownership of the train. Defendant not only denied ownership of the train in its Answer, as noted, but also, in its Initial Disclosures to Plaintiff pursuant to Fed. R. Civ. P. 26, stated "there are numerous documents in defendant's possession which generally describe the nature of defendant's business and which reflect the fact that defendant did not own or operate the Train in question." The Tolson affidavit discloses that the train was owned and operated by, and the engineer employed by, CSX Transportation, Inc., not CSX Corporation the named defendant. CSX Transportation, Inc. also owned the track on which the train was operating. CSX Corporation is a stock holding company, a separate and distinct corporation from CSX Transportation, Inc. In spite of being warned of having sued the wrong defendant, plaintiffs did nothing during discovery to determine the true owner of the train and move to amend their complaint to name the proper party. Rather, in their Response to the Motion for Summary Judgment, they contend that CSX corporation [*4] owns the stock of CSX Transportation, Inc. n1 and, as such, is liable for the torts of its agents; that is, that the negligence of CSX Transportation, Inc. is imputed to CSX Corporation. Absolutely no authority is cited in support of this contention.

n1 A fact that is not confirmed in the Tolson affidavit, nor the pleadings or briefs of defendants.

Recovery in a civil action must be against the responsible party. Plaintiffs allege that the accident was caused by the negligence of the engineer. The engineer is an employee of CSX Transportation, Inc. which is not a party to this action. Even assuming, which the court is not persuaded or permitted to do, that defendant is the sole stockholder of CSX Transportation, Inc., the burden is on plaintiff to show some reason why it should be responsible for the actions of a separate, though totally owned, corporation. [HN2] Mere ownership of all of a subsidiary's stock is not sufficient to disregard the separate corporate identities. B-W Acceptance Corp. v. Spencer, 268 [*5] N.C. 1, 8-9, 149 S.E.2d 570, 575-76 (1966). In order to recover against the parent plaintiff is required to show fraud or that the subsidiary is a mere instrumentality or tool of the parent. Id.; Copley Triangle Assocs. v. Apparel Am., Inc. 96 N.C. App. 263, 265, 385 S.E.2d 201, 203 (1989). Plaintiff has offered no evidence of either. On this ground alone defendant's motion is well taken.

(2) Lack of negligence in the operation of the train. The affidavit of the engineer discloses that he was operating the train within the speed limit; that he sounded his whistle as required; that he saw the car approaching the crossing and assumed that it would yield as required by law; that he sounded his emergency whistle when it was apparent that the car wasn't slowing down; and, that he was too close to the crossing to attempt to stop. The affidavit of Wanda Exum Moore states that the highway patrolman who investigated the accident told her that the train was traveling about 89 miles per hour when the accident occurred. The affidavits of both plaintiffs state that they visited the scene three or four days after the accident and that visibility at the crossing was obscured by vegetation [*6] growing near the railroad tracks. Thus, plaintiffs have offered absolutely no evidence in support of the allegations of negligence contained in their complaint. The alleged statement by the investigating officer is clearly hearsay and may not be considered on a motion for summary judgment even if it were otherwise admissible. The proposed evidence about vegetation would not be admissible at trial because it was not alleged in the complaint. In addition, "permitting such obstacles on the right of way and near the crossing would not in itself constitute actionable negligence, and independently would not give rise to a cause of action." May v. Southern Ry., 259 N.C. 43, 49, 129 S.E.2d 624, 628 (1963); see also Moss v. Southern Ry., 2 N.C. App. 50, 56, 162 S.E.2d 633, 637 (1968) (remand for a new trial because "the jury was permitted to find the defendant negligent upon the sole basis of a finding that the defendant allowed the view at the crossing to be obstructed"). On this ground, also, the motion is well taken.

(3) Contributory Negligence. The decedent was very familiar with the crossing. A "crossbuck" warning sign was located approximately 60 feet from the tracks in the [*7] direction in which the decedent was travelling. It was night and the headlights of the train were on their brightest setting, its whistle blowing and bell ringing. There was nothing to keep the decedent from seeing the train and yielding the right of way. In not doing so, he was contributorily negligent as a matter of law. See, e.g., Brown v. Atlantic Coast Line R.R., 276 N.C. 398, 400, 172 S.E.2d 502, 504 (1970); Dowdy v. Southern Ry., 237 N.C. 519, 524, 75 S.E.2d 639, 642-43 (1953). On this ground, also, the motion is well taken.

IV

For the reasons set forth above, the Motion by defendant for Summary Judgment is ALLOWED and this action is DISMISSED.

This May 3, 1995.

W. EARL BRITT

United States District Judge

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that defendant's motion for summary judgment is ALLOWED and this action is DISMISSED. (BRITT, J)

THIS JUDGMENT FILED AND ENTERED ON MAY 3, 1995, AND COPIES TO:

Robert V. Lucas, Esq.

P. O. Box 309

Selma, NC 27576

John R. Jolly, [*8] Jr., Esq.

Randall Adams, Esq.

P. O. Drawer 353

Rocky Mount, NC 27802-0353

May 3, 1995