TORTS, RAILROAD & EVIDENCE / In wrongful death action arising from railroad carrier locomotive collision with plaintiffs’ decedent walking on railroad cross-ties, where (1) locomotive event recorder indicated extensive horn and bell activation, and (2) 6 eye-witnesses denied hearing any horn or bell – Denial of JNOV in favor of railroad was warranted; event recorder reading was not conclusive of those issues of fact in light of large number (6) of witnesses countering event recorder.

Illinois Central Railroad Co. v. Young, 2012 WL 6125859 (Mississippi Court of Appeals, December 11, 2012. Free copy available here.

Who is affected? Railroad carriers involved in accidents and those persons subsequently suing them in tort.

Note that the court bases its refusal to rule that the event recorder was conclusive as a matter of evidence in the fact finding process due to the large number (6) of witnesses testifying to the contrary of what the event recorder’s reading stated.

Mississippi Court of Appeals in review case law cites and discusses cases holding that such event recorder readings were in fact conclusive as against contrary eye-witness testimony.

The question of how conclusive – if at all – the readings of an event recorder are for the trier of fact relating to the event recorded is generic across the modes of railroad, aviation (cockpit voice recorder and flight data recorder), motor carriers (see recent activity by FMCSA) and now light vehicles.

“…The Appellees concede that the only basis for their negligence claim against Illinois Central and Herndon rests on whether or not Herndon blew the horn to warn Young of the approaching train. At oral argument before this Court, the attorney for the Appellees acknowledged that “if the horn did blow, we lose.”

“The Appellants argue there was sufficient evidence that the train’s horn was blown and that Young was provided with adequate warning, and they submit that the circuit court erred in denying their JNOV, as “there is no basis upon which they may be held liable.” At trial, the train’s engineer, Herndon, testified that he blew the train’s horn to warn Young and blew it “practically almost till we stopped.” As the train came out of a curve north of where the accident occurred, Herndon was on the right (west) side of the train, and he spotted Young several hundred feet ahead, “attempting to cross the tracks.” Herndon testified that Young was approximately 10–12 feet from the west side of the rail and that “she was looking down.” As the train continued to advance, she moved towards the east side of the tracks and went out of Herndon’s line of sight. The train’s conductor, Marchisio, also testified that Herndon was blowing the horn coming out of the curve north of the impact site. Marchisio, who was located on the left side of the train opposite of Herndon, first observed Young on the east side of the track, “walking south.” He said Young walked straight down the track for approximately “25–30 feet.” Marchisio noted that Young’s head was down and that she never acknowledged the train’s presence. He yelled at her to “get out of the way,” but she did not.

“Moreover, the train’s event recorder data showed that the horn and bell were activated before the accident. The majority of locomotives are required to have an “in-service event recorder” on board. See 49 C.F.R. § 229.135 (2011). The event recorder is similar to an airplane’s “black box” in that it preserves pertinent data regarding the train’s operations, such as speed, horn and bell activation, and distance traveled. The activation of the various systems is reflected by a binary code. Dr. Foster Peterson, Illinois Central’s expert witness, explained:

“Basically, the event recorder is doing what we call “sampling” or looking at a number of different channels, different things happening on that locomotive actually many times a second; roughly ten times per second…. The speed and distance are calculated based on the number of revolutions that the wheel is making and how fast it’s making them, things like that. Air pressure, bell and horn; there are various ways to measure, whether it’s electrically or with an air switch or in other ways, all these various events. And so the total, you know, download is telling us what is happening on that locomotive and what the engineer is doing to control it.

Illinois Central downloaded the computerized data from the event recorder data ten days after the accident. At trial, Dr. Peterson stated there was nothing to show that this downloaded event recorder data was inaccurate. Dr. Peterson testified that the event recorder data showed that there was a horn blow and bell warning twelve seconds and approximately 730 feet prior to impact. His testimony regarding the horn activation, that there was an initial activation of the horn for approximately nine seconds and a second activation for approximately three seconds, is consistent with Herndon’s testimony. Dr. Peterson also stated that the train’s bell was activated at the same time and that it continued through the crossing south of the accident.

“The Appellees assert that there was “credible evidence … that the train crew failed to blow the horn.” Six witnesses (including three members of Young’s family), who claimed to have been in the area when the accident occurred, testified on behalf of the Appellees that they did not hear any train horn or whistle. Sandra and Young’s two sisters were inside their homes near the railroad tracks, and all said that they did not hear the train’s horn. The other three witnesses—Shanna Sims, Kim Claiborne, and Deundra Wilson—were in automobiles stopped at the crossing just south of the accident site. Sims and her passenger, Claiborne, had spoken briefly to Young moments before the accident at a nearby intersection. Sims had attempted to drive across the tracks when the railroad crossing warning system came down, which forced her to back up and wait for the train. Sims testified that her window was cracked and that the radio was off. Claiborne also said her window was cracked; she noted the radio was on, but that it was turned “low.” Both women claimed that they did not hear any train horn. Wilson was driving his vehicle on the other side of the railroad tracks when he was forced to stop for the train, with the warning system also coming down upon his vehicle. He claimed that he backed his car up and proceeded in another direction. Wilson also stated that he did not hear the train horn even though his windows were down. None of the three witnesses observed Young’s being hit by the train, although Sims said she saw Young fall down but was not aware she was injured. None of the witnesses provided a statement to the police regarding the accident.

“The Appellants contend that the train’s event recorder data is “objective, reliable” evidence that is superior to the eyewitnesses’ testimony. The Appellants cite Russell v. Mississippi Central Railroad, 239 Miss. 741, 749, 125 So.2d 283, 285 (1960), for the proposition that the “[t]he testimony even of disinterested and unimpeached witnesses on the subjects of measurements, distances and the like, which is based merely on memory, estimate or casual observation, must yield to that which is based on actual measurements.” (Quoting S.H. Kress & Co. v. Sharp, 156 Miss. 693, 698, 126 So. 650, 651 (1930)).FN5 Thus, the issue before this Court is whether the testimony by six witnesses, that the horn did not blow, must “yield” to the event recorder data’s “objective” physical evidence. We find the testimony of eyewitnesses concerning whether or not a train’s horn was blown is not the same as a witness’s estimate of distance or measurement; thus, Russell is not controlling.

[Footnote Russell concerned photographic evidence and engineer surveys that completely contradicted oral testimony. Id. at 748–49, 125 So.2d at 285.]

“In a recent case from the United States District Court of the Southern District of Mississippi, Brown v. National Railroad Passenger Corporation, No. 3:08cv559KS-MTP, 2011 WL 1130545 (S.D.Miss. Mar. 28, 2011), the district court considered a similar issue involving eyewitness testimony that contradicted the physical evidence of the train’s event recorder data. The specific question there was whether the engineer blew the horn for 900 feet prior to approaching the railroad crossing as required by law. The event recorder data reflected that the train’s horn was blown continuously for 1,170 feet prior to the crossing. Two witnesses near the train crossing testified the train’s horn blew only once-right before impact. Another witness traveling in a car next to the train track who witnessed the crash stated he heard the horn. The district court denied the railroad’s motion for summary judgment, finding: “The issue of the train horn is merely a factual dispute between various eyewitnesses and the mechanical event data recorder perfectly capable of being resolved by a properly instructed jury.”Id. at *12; see also Roach v. Nat’l R.R. Passenger Corp ., No. 3:09CV634TSL–FKB, 2010 WL 5313403 at *1 (S.D.Miss. Dec. 21, 2010) (Sufficient evidence existed to create a genuine issue of material fact precluding summary judgment, where the event recorder showed that the train horn was properly sounded in a continuous manner prior to the crossing; yet two nearby witnesses testified they only heard a single blow before impact, and the plaintiff merely stated that he thought he heard the horn just before impact.).

[Footnote – While our case concerns a motion for a JNOV, not summary judgment, both concern whether the testimony creates an issue of fact for a jury to resolve. In finding there to be a genuine issue of material fact for trial, the Brown court acknowledged: “There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.Brown, 2011 WL 1130545 at *3 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)) (emphasis added).]

“Several other jurisdictions have also held that event recorder data is not conclusive evidence so as to remove the issue from the jury. The United States District Court of the Central District of Illinois has held that a dispute between witness testimony and the event recorder data creates a question of fact and will survive summary judgment. In Petersen v. Union Pacific Railroad, 567 F.Supp.2d 1043, 1051 (C.D.Ill.2008), two witnesses stated that the railroad’s crossing warning system was not working properly, although the event recorder data stated that it was. The district court concluded that since the plaintiffs disputed “the accuracy of the [e]vent [r]ecorder data [,] … the [event recorder data] is not controlling.” See also Cimaglia v. Union Pac. R.R., No. 06–3084, 2009 WL 499287 at *4 (C.D.Ill. Feb. 25, 2009) (defendant prohibited from arguing event recorder data was conclusive since this evidence could be “rebutted,” and “an issue of fact remain[ed] on the question of whether the crossing warning system operated properly.”).

“In Cornwell v. Union Pacific Railroad, No. 08–CV–638–JHP, 2010 WL 3521668 at *1 (N. D.Okla. Sept. 7, 2010), the event recorder showed that the horn was blown prior to collision; both the engineer and conductor testified that the horn was blown; and “numerous witnesses” in close proximity heard the whistle blow. However, video evidence of the accident contained no sound from the horn, and two witnesses testified that they did not hear a horn. Id. at *4. The United States District Court for the Northern District of Oklahoma held that this constituted a dispute of material fact. Id. at *5.

In Rivers v. CSX Transportation, No. 9–01–59, 2002 WL 533397 (Ohio Ct.App. Apr. 10, 2002), there was evidence in the form of testimony by train personnel and event recorder data that the horn was blown. However, two witnesses in the vicinity “could not recall hearing the train horn,” a nearby resident at his home did not recall the horn, and another witness driving alongside the track did not hear the horn but admitted he “could not be certain that the whistle sounded although he assumed it did.” Id. at *4. Although the appellate court agreed that the witnesses’ testimony was not sufficient to overcome summary judgment, it concluded that “reasonable minds could differ” as to whether the whistle was blown based on the fact that there was substantial evidence that the appellant, who was not listening to radio, proceeded with caution, and “stated that he did not hear a warning whistle sound.” Id. at *5.

“Similarly, in Bouchard v. CSX Transportation, Inc., 196 Fed. Appx. 65 (3rd Cir.2006), a train’s event recorder data indicated that the train’s horn and bell were activated before the application of the emergency brakes. However, a witness stopped at the crossing said he did not hear the horn or bell until the train hit the decedent. Id. at 68. The United States Court of Appeals for the Third Circuit reversed the district court’s grant of summary judgment, concluding:

“Pennsylvania case law clearly provides that testimony from a witness who was at the scene to the effect that he did not hear a train’s horn is competent evidence that no horn was blown. While this evidence may not be as compelling as the conflicting evidence presented by CSX from the train’s data recorder log, the weight of the evidence is for the jury, and not the District Judge, to assess.

Id. at 71–72 (internal citation omitted).

“We note that there are cases where courts have found eyewitness evidence insufficient to rebut the event recorder data. In a recent case from the Nebraska Supreme Court, Dresser v. Union Pacific Railroad, 809 N.W.2d 713 (Neb.2011), two victims involved in the accident with a train testified that they did not hear a horn before impact. The Dresser court held:

“[T]he testimony from the engineer and the conductor and the event record data show that the horn was activated. And no evidence supports a reasonable inference that there was some defect which prevented the horn from sounding when activated. To the contrary, the record shows the horn was working properly when it was tested 2 days after the accident. Thus, despite Rosencrans’ and McDonald’s statements that they did not hear the horn, there are no facts upon which a finder of fact could reasonably conclude that the horn did not sound when it was activated. Id. at 719. In Miller v. Illinois Central Railroad, 474 F .3d 951, 954 (7th Cir.2007), the United States Court of Appeals for the Seventh Circuit held that one witness’s testimony, contradicting the event recorder evidence that the whistle was blown, did not allow plaintiffs to survive summary judgment as the court did “not think a reasonable jury could conclude that the whistle had not been blown, merely because one witness did not recall hearing the whistle years after a very dramatic event[.]” See also Woods v. CSX Transp., Inc., Nos. 2:07–CV–29, 2:07–CV–30, 2008 WL 5070352 at *13 (N.D.Ind. Nov. 24, 2008) (testimony of inattentive witness that horn was not blown was not sufficient to rebut the event recorder data and engineer’s and witness’s testimony that horn was activated) (emphasis added).

In Price v. National Railroad Passenger Corp., 14 P.3d 702 (Utah Ct.App.2000), the Utah Court of Appeals considered testimony from witnesses parked at the train crossing that the train’s horn was not blown prior to the accident. The court noted “that the witnesses were in automobiles with the windows closed and music playing.” Id. at 708–09. It concluded:

“[A]lthough the credibility of negative evidence is generally a question for the jury, “in certain circumstances negative testimony will be insufficient to support a jury verdict.” Curtis v. Harmon Elec., Inc., 575 P.2d 1044, 1047 (Utah 1978). This case presents such a circumstance.

“The event recorder from the locomotive provides objective evidence that the horn in fact sounded the standard crossing warning sequence for more than half a minute prior to the accident. Accordingly, we think the negative evidence presented by Plaintiffs does not preserve a genuine issue of material fact, and summary judgment for Defendants on this issue was appropriate. Id. at 709. However, in Clayson v. Union Pacific Railroad Company, No. 20040783–CA, 2005 WL 2803193 at *2 (Utah Ct.App. Oct. 27, 2005), the same appellate court reversed the lower court’s grant of summary judgment, holding that negative testimony by four witnesses whose “attention was not engrossed or diverted to other things” provided sufficient evidence “from which a jury could conclude each was in a position to hear the train horn.” Unlike Price, one witness in Clayson was outdoors and two other witnesses had their windows rolled up but were listening and “waiting on the crossing gate to raise.” Id. at n.1. We hold, as did the Clayson court, that the amount of negative testimony (that the witnesses did not hear the warning) is sufficient to create a factual issue for the jury.

“The Mississippi Supreme Court has reasoned:

“Negative testimony rises or declines in the scale of probative weight according to the opportunity of the negative witnesses to hear and observe; whether their attention was directed to or diverted from the fact in issue; whether the particular fact was an unusual or only a common occurrence in the daily routine of their lives; whether the particular witness was normal in the sense of hearing and sight; and whether observant or indifferent to details.

….

“The testimony of witnesses that they did not hear the ringing of the bell on a locomotive as it approached a crossing, without proof that the witnesses listened for the bell, or that their attention was any way directed to it, or that they probably must have heard the bell if it did ring, cannot prevail against the positive testimony of other credible witnesses that the bell did ring at the time in question.

Maxwell v. Ill. Cent. Gulf R.R., 513 So.2d 901, 907 (Miss.1987) (quoting Mobile & O.R. Co. v. Johnson, 157 Miss. 266, 271, 126 So. 827, 828 (1930)) (emphasis added). In Maxwell, a teenager was walking on railroad tracks and was killed by a train. The train engineer and fireman insisted the whistle was sounded, although neither was able to hear it. However, a witness who lived three-quarters of a mile away said he did not hear whistle; neither did the teenager’s step-father, who lived three miles away. Id. at 906–07. The Maxwell court reversed the trial court’s grant of the railroad’s motion for a JNOV, but affirmed the circuit court’s order grant of a new trial, concluding:

“In today’s case the greater weight of the credible evidence supports the view that the emergency whistle was sounded. On the other hand, the firmly established rule respecting the authority of courts to intervene when a jury has resolved a question of fact preclude us acting upon that view. Considering the evidence in the light most favorable to the Plaintiffs, and giving the Plaintiffs the benefit of all favorable inferences that may reasonably be drawn therefrom, and taking the evidence on the issue of the sounding of the whistle in the aggregate, we may not escape the conclusion that there is in this record some credible evidence that the whistle never sounded. Id. at 907 (emphasis added).

“We find that the conflict between the event recorder data and the witnesses’ testimony presented a question of fact for the jury to resolve.”