BNSF Railway Co. v. C.A.T. Construction, Inc., 679 F. App'x 646

Background

BNSF-owned railroad crossing on County Road 295 (public road) had timber planks, humped approaches, and evidence the north rail protruded above the planks; approaches lay within BNSF’s 100-foot right-of-way.
Truck driven by Thompson employee Whisenhunt became high-centered on the crossing when trailer underside/landing gear caught on the north rail; minutes later a BNSF train struck the stuck vehicle, destroying the truck and damaging train/track.
BNSF sued Thompson and CAT (tractor owner) for vicarious liability; appellants counterclaimed that BNSF negligently constructed/maintained the crossing (including approaches) causing the accident.
District court ruled (pretrial) BNSF’s statutory duty under Okla. Stat. tit. 66, § 128 was limited to the roadway portion intersecting the tracks (excluding approaches), excluded evidence about approaches, and gave jury instructions reflecting that limitation.
Jury returned verdict assigning Thompson 80% and BNSF 20% negligence; district court denied BNSF’s renewed JMOL; appeal and cross-appeal followed.

Issues

Issue	Plaintiff's Argument (BNSF)	Defendant's Argument (Appellants)	Held
Scope of railroad duty under Okla. Stat. tit. 66, § 128	Duty limited to the roadway surface intersecting the tracks; county (§ 601) controls approaches	§128 requires railroad to construct/maintain crossing across its entire right-of-way, including approaches within right-of-way	Reversed district court: §128 duty extends across the railroad’s entire right-of-way, including approaches within that area
Jury instruction on duty	Court properly declined to instruct that BNSF was responsible for approaches	Jury should be instructed that BNSF’s §128 duty covers approaches within right-of-way	Court abused discretion by refusing and by instructing jury that county (not BNSF) was responsible for approaches; prejudicial error requiring new trial
Exclusion of evidence about approaches/causation	Approaches irrelevant given court’s limiting ruling; exclusion proper under Rules 401/403	Evidence of approach profile and protruding rail was relevant to causation and BNSF’s negligence	Exclusion was an abuse of discretion because approaches were relevant to causation under correct legal duty; error was prejudicial and warrants new trial
JMOL based on negligence per se (Okla. Stat. tit. 47, § 11-1115) — was driver’s statutory violation a supervening cause?	Whisenhunt’s statutory violation (insufficient clearance) is negligence per se and was the supervening proximate cause, absolving BNSF	Even if statutory violation occurred, evidence supported a finding that BNSF’s crossing defects were a concurrent/foreseeable cause, so causation was for the jury	Affirmed denial of JMOL: assuming violation, jury reasonably could find driver’s negligence was not the sole supervening cause; causation was a fact question

Key Cases Cited

Chicago R. I. & P. Ry. Co. v. Taylor, 79 Okla. 142, 192 P. 349 (establishing railroad’s duty under §128 to maintain highway across entire right-of-way)
Midland Valley R.R. Co. v. Townes, 179 Okla. 136, 64 P.2d 712 (applying §128 to approaches within right-of-way)
Atchison, T. & S.F. Ry. Co. v. Wooley, 78 Okla. 109, 189 P. 180 (railroad must keep public highway across its right-of-way in condition that does not materially impair use)
Akin v. Mo. Pac. R.R. Co., 977 P.2d 1040 (Okla. 1998) (proximate cause and when intervening act becomes supervening cause)
Jackson v. Jones, 907 P.2d 1067 (Okla. 1995) (foreseeability and standards for supervening cause as question of fact)
Myers v. Missouri Pac. R.R. Co., 52 P.3d 1014 (Okla. 2002) (distinguishable; §128 quoted but not interpreted in context)
Garner v. Myers, 318 P.2d 410 (Okla. 1957) (driver’s negligence per se does not automatically absolve railroad unless it was proximate cause)
Questar Pipeline Co. v. Grynberg, 201 F.3d 1277 (10th Cir. 2000) (jury presumed to follow court instructions)