OKLAHOMA CITY – An appellate court has overturned a jury verdict that favored BNSF Railway Co. in a lawsuit arising from a fatality accident eight years ago at a rural Pawnee County railroad crossing.
Paul Wayne Watson, 49, was killed and his wife, Terri, and then-8-year-old daughter Taylor were severely injured when the pickup in which they were riding was struck by a Burlington Northern & Santa Fe train at a crossing approximately two and a half miles northwest of Hallett on Aug. 30, 2014.
Terri Watson filed a wrongful death lawsuit against BNSF in April 2015 in Pawnee County District Court and sought damages in excess of $75,000.
After listening to more than 30 witnesses and viewing hundreds of exhibits during a two-week trial in December 2019, a jury ruled for BNSF. And a year later, Pawnee/Tulsa County District Judge Michelle Bodine-Keely awarded BNSF $56,199 in compensation for costs incurred during the trial.
The state Court of Civil Appeals reversed the jury’s verdict on Sept. 26 and sent the case back to Pawnee County for a new trial.
The appellate court, with one dissent, asserted that the jury instructions delivered by former District Judge Jefferson D. Sellers were “unfairly overbalanced in favor of BNSF. Multiple errors in those instructions “give rise to ‘a probability that the jury was misled into reaching a result different from that which would have been reached but for the error.’”
According to court documents and testimony, the Watsons were eastbound on County Road 520 in a pickup driven by the victim; his wife was in the passenger seat and their daughter was in a back seat, court documents state.
Simultaneously, a BNSF freight train was northbound, approaching a railroad crossing on County Road 360 slightly east of County Road 520.
The pickup’s powertrain control module showed that Watson was traveling at 19 mph when he was 50 feet from the crossing, “too fast to stop short” of the tracks. He pumped his brakes several seconds before the collision, but his truck failed to come to a complete stop until the front bumper was in the center of the railroad tracks.
With just a moment to clear the tracks, Watson apparently attempted to shift his truck into reverse but “succeeded only in shifting into neutral and pressing the gas pedal,” court records relate.
The train smashed into the truck, “which spun counterclockwise and flipped upside down” beside the tracks. Watson, who was not wearing a seatbelt, was partially ejected from the vehicle and did not survive the wreck.
Vegetation ‘obstructive,’
widow alleges in lawsuit
Terri Watson alleged in her lawsuit that BNSF was negligent because it failed to remove obstructive vegetation on its right-of-way; failed to install and maintain adequate warning devices at the crossing to properly warn her husband of the approaching train; allowed an unreasonably dangerous and hazardous crossing to exist; operated the train in excess of a proper speed limit for that crossing; and failed to sound the train’s horn prior to passing through the crossing.
BNSF countered that Watson’s death was directly attributable to failure to wear a seatbelt, and that he was driving too fast to stop short of the railroad tracks.
Terri Watson was represented by Gentner Drummond’s law firm in Tulsa, attorney Paul DeMuro of Tulsa, and a Kansas City, Missouri, law firm. BNSF was represented by the Mullican & Hart law firm in Tulsa.
Court records show that:
• Up to “a certain distance” from the railroad tracks, Watson’s view toward his right-hand side “in the direction of the oncoming train” was obstructed by vegetation, “some of which was growing within the railroad right-of-way.”
Terri Watson claimed her husband was unable to see oncoming trains “due to overgrown grass, shrubs, and tree limbs” in the vicinity of the crossing.
A footnote in the appellate decision relates that Mrs. Watson presented testimony, photographs and video filmed from the front of the train, that “a certain telephone [pole] near the road on the driver’s right-hand side approaching the crossing ‘is 45 feet’ from the center of the tracks and that ‘it’s plain to see that …the vegetation is on both sides of that telephone pole, which is 5 feet inside the railroad’s right-of-way’,” which extends 50 feet on either side of the center of the railroad track.
“[N]umerous local residents” complained about the vegetation “obstructing the view and being dangerous at this crossing” and reported it to BNSF prior to the wreck, “including during the month before the collision.”
One local resident reported the vegetation consisted of “trees that had grown up and … would hang over into the right-of-way where you couldn’t see south [toward what would have been Watson’s right-hand side] down the train tracks…”
Another witness testified that “there was no way to stop or be able to see at a safe distance away from the crossing to be able to see if a training was coming.”
After the crash, local property owners “went up there and cut all day long, just up the road and around the bend and up the tracks there, maybe 100 or 200 feet” with chain saws “because it was a hazard.”
BNSF’s allegedly negligent maintenance of vegetation that obstructed Watson’s view constituted “the meat” of Terri Watson’s case, the court noted.
RR crossing had
just a ‘crossbuck’
• The railroad crossing was an at-grade “passive” crossing, meaning that at the time of the collision it was equipped with only a crossbuck sign alerting drivers of the existence of the track intersecting a road. It was not equipped with flashing lights, bells or arms that raise and lower before and after a train passes through the intersection.
BNSF argued that federal funds paid at least part of the cost of installation of the crossbuck sign at the railroad crossing and therefore, federal law pre-empts any state tort claim challenging the adequacy of the warning device. Judge Sellers rejected that claim.
(Brent Payne, the Oklahoma Corporation Commission’s railroad manager, told the Southwest Ledger that gate arms, flashing lights and warning bells have since been installed at the crossing.)
• The train was not traveling at an excessive speed at the time of the collision. Engineer Jason Morris testified he was operating the train at 41 mph. The Federal Railroad Administration allows trains operating on Class 4 track, such as that near Hallett, to be driven at up to 60 mph.
In addition, an audio test was performed and confirmed what a video recorder on the locomotive showed: The engineer activated the horn at a sufficiently audible level as the train approached the crossing.
Some jury instructions
‘erroneous,’ judges rule
The appellate court took note of the challenges raised by Terri Watson but focused on “various issues” she raised “pertaining to the jury instructions.”
She pointed specifically to Instruction #27, which consisted of three sentences, including this:
“Thus, if one attempts to cross a railroad track where his view is obstructed, he would be required to exercise a greater degree of care than he would if he were crossing a railroad track where there were no obstructions.”
The Court of Civil Appeals agreed with the plaintiff that that sentence “misstates the law in Oklahoma.”
Oklahoma Uniform Jury Instructions provide that ‘negligence’ is “failure to exercise ordinary care to avoid injury to another’s person or property. ‘Ordinary care’ is the care which a reasonably careful person would use under the same or similar circumstances. The law does not say how a reasonably careful person would act under those circumstances.” That is for the jury to decide.
The Oklahoma Supreme Court has declared that “the obligations of railroad companies and of travelers crossing their tracks are mutual and reciprocal.”
A jury instruction that requires “special care” on the part of the railroad company while requiring only “ordinary care” of the traveler is “erroneous,” the Supreme Court decreed.
“The inverse is also true,” the Court of Civil Appeals wrote. An instruction that requires “special care” on the part of the traveler while requiring only “ordinary care” by the railway company is also “erroneous.”
Instruction #12 compounded the problem, the appeals court wrote. That instruction stated, “It is the duty of the driver of a motor vehicle to use ordinary care to prevent injury to themselves or other persons.” Yet that contradicted Instruction #27 requiring special care.
‘Familiarity’ rule is
‘vague, subjective’
The Court of Civil Appeals also took exception to an issue of “familiarity.” Paul Watson lived in or near Hallett and “had been regularly crossing the railroad tracks in question for a number of years,” according to a footnote in the court’s decision.
“While any number of relevant circumstances may be taken into account by a jury in determining whether a driver exercised ‘the care which a reasonably careful person would use under the same or similar circumstances,’” the Civil Appeals judges disagreed with a previous judicial decision that “where a driver is familiar with a crossing … the jury is to be instructed that the driver must exercise ‘a greater degree of care’ than in other circumstances.”
The familiarity rule is “vexing,” the judges wrote. Is there “a workable threshold of familiarity (e.g., is it reached after two crossings, or after 20, or only after 200 or more?)”
Also, if the degree of care is to be calibrated, “based on familiarity, …those with less familiarity should be the ones required to exercise a ‘greater degree of care’ when approaching a railroad crossing with which they are unfamiliar, especially when their view is obstructed.”
That concept is “troublingly vague and subjective,” the judges asserted, and is inconsistent with the rule that “the obligations of railroad companies and of travelers crossing their tracks are mutual and reciprocal.”
Terri Watson also objected to the trial judge’s Instruction #15, which stated that where a train and a motor vehicle are approaching an intersection of a street and a railroad track, the train “has the right-of-way over the approaching vehicle.”
The state Supreme Court “has found such an instruction to be ‘overbalanced in favor of the railroad’” because it “advises the jury that a train’s precedence over an approaching vehicle at a crossing is absolute.” That “places the entire burden of avoiding the collision on the motorist,” the court ruled.
The Court of Civil Appeals concluded that “there is a probability that the jury was misled by the multiplicity of inaccurate and misleading statements” in the trial court’s instructions.
“We cannot be certain that a new trial will result in a different verdict,” the judges acknowledged. “Nevertheless, a probability exists of a different verdict in the absence” of the multiple erroneous jury instructions.
The jury verdict was reversed and the case was remanded to Pawnee County District Court for further proceedings.
BNSF has almost 1,000 miles of track in Oklahoma, stretching from the Kansas border to the Red River and from the Oklahoma/Missouri state line to the Texas Panhandle.