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AMI1805Railroads—Abnormally Dangerous Crossing—Definition—Duty to Warn

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 1805
Arkansas Model Jury Instructions-Civil
February 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 18. Railroads
AMI 1805 Railroads—Abnormally Dangerous Crossing—Definition—Duty to Warn
(Plaintiff(s)) contend(s) that the railroad grade crossing in this case was abnormally dangerous. (Plaintiff(s))(has)(have) the burden of proving this proposition.
If a railroad grade crossing is frequently used by the traveling public, if trains pass over it frequently, and if the crossing is so dangerous because of surrounding circumstances that a reasonably careful person could not use it with reasonable safety in the absence of special warnings, then it would be an abnormally dangerous crossing. Whether the railroad grade crossing in this case was abnormally dangerous is for you to decide.
If you find that the crossing was abnormally dangerous, as I have defined that term, then it was the duty of the railroad to use ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety.
COMMENT
This instruction is based on St. Louis Southwestern Ry. Co. v. Jackson, 242 Ark. 858, 416 S.W.2d 273 (1967), appeal after remand, 246 Ark. 268, 438 S.W.2d 41 (1969) and St. Louis Southwestern Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W.2d 334 (1967) This instruction should be given where evidence is presented that a railroad crossing is abnormally dangerous. Redman v. St. Louis Southwestern Ry. Co., 316 Ark. 636, 873 S.W.2d 542 (1994).
The evidence, when viewed most favorably, was insubstantial and insufficient to meet the burden of proof to establish the required elements for an "abnormally dangerous crossing" as defined by this instruction. Chicago R. I. & P. R. Co. v. Gray, 248 Ark. 640, 453 S.W.2d 54 (1970). A railroad may be found negligent for its failure to give special warnings at a crossing which is rendered abnormally dangerous by reason of unusual circumstances or conditions. Questions as to the nature of the crossing and the adequacy of the particular warning devices are for the jury so long as the evidence reasonably can be said to generate the issues. Scoville v. Missouri Pac. R. Co., 458 F.2d 639 (8th Cir. 1972).
Travel of 115 cars and two school buses over a grade crossing in a period of twenty-four hours does not show frequent usage by the traveling public. St. Louis Southwestern Ry. Co. v. Evans, 254 Ark. 762, 497 S.W.2d 692 (1973).
Even where, under the totality of the circumstances standard adopted in Missouri Pacific R. Co. v. Biddle, 293 Ark. 142, 732 S.W.2d 473 (1987), the jury is entitled to find that a crossing is abnormally dangerous, this instruction should not be given where warnings have been installed at the crossing and there is no showing that the warning devices are inadequate. Northland Ins. Co. v. Union Pac. R. Co., 309 Ark. 287, 830 S.W.2d 850 (1992).
The common law duty expressed by this instruction is, in many instances, preempted by federal law. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993). Once warning devices paid for with federal funds are installed and operating, the railroad's common law duty to determine what warning devices are adequate for a particular crossing ceases, and it is entitled to the benefit of federal preemption. Union Pac. R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Thus, the Eighth Circuit's interpretation of Easterwood is followed. Kiemele v. Soo Line R. Co., 93 F.3d 472 (8th Cir. 1996); Elrod v. Burlington Northern R. Co., 68 F.3d 241 (8th Cir. 1995). The opinion in Union Pac. R. Co. v. Sharp, supra, gives a brief description of statewide crossing upgrade projects substantially financed with federal funds.
The duty of the railroad to maintain warning devices is a separate and distinct duty from what types of warning devices are needed at a particular intersection, and is not preempted by the Highway Safety Act. Union Pac. R. Co. v. Sharp, supra.
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