SMITH Et Al. v. NORFOLK SOUTHERN RAILWAY COMPANY
337 Ga. App. 604
Ga. Ct. App.2016Background
- On March 12, 2013 a pickup truck (driven by Wilkerson, passenger Tony Lungaro) was struck in an intersection by a van and was propelled ~90 feet onto railroad tracks where it stopped, activating crossing gates and warnings. A northbound Norfolk Southern freight train carrying hazardous materials approached the crossing.
- The lead locomotive engineer began the required horn sequence, but after the first 4-second blast (about 22 seconds before impact) he saw the stopped truck, ceased the horn to initiate emergency braking (applying multiple brakes) and resumed the horn only about 2 seconds before collision. Video showed a ~16-second gap between blasts and 22 seconds from truck resting to impact.
- Lungaro exited the passenger side, appeared dazed, turned to run when the horn sounded the second time but was struck and killed. The truck driver survived with severe injuries. The train did not derail.
- Plaintiffs (Lungaro’s children) sued Norfolk Southern for negligence per se (alleged violation of 49 C.F.R. § 222.21 horn rules) and ordinary negligence, arguing the interrupted horn deprived Lungaro of adequate warning. Norfolk Southern asserted a sudden emergency defense and argued proximate cause lay with the vehicle collision.
- The trial court charged the jury on sudden emergency; the jury found for Norfolk Southern on both negligence-per-se and ordinary negligence claims. Plaintiffs appealed, challenging the sudden-emergency charge (insufficiency of evidence, federal preemption, incompleteness of the charge, and an allegedly erroneous introductory description).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported a jury charge on the sudden-emergency defense | No — engineer had time to choose and could have simultaneously sounded horn and braked; no sudden, unanticipated choice without time for thought | Yes — truck was propelled onto tracks by others; engineer confronted an unexpected peril and had to choose quickly between continued horn and emergency braking | Charge was supported: slight evidence sufficed; question properly for the jury, so charge was authorized |
| Whether the sudden-emergency defense is preempted by federal horn-sounding regulation (49 C.F.R. § 222.21) | Yes — federal rule prescribes continuous horn pattern and timing, displacing state-law excuse defense | No — defense addresses reasonableness under sudden peril; but this ground was not raised below | Waived on appeal (objection not raised at trial). Court reviewed for substantial error and found none |
| Whether the sudden-emergency jury instruction was incomplete (omitted portion of pattern charge) | Omission misstated law and prejudiced plaintiffs | Instructional choices were not objected to on this ground at trial; any omission did not cause substantial error | Waived for failure to object; not reversible under substantial-error standard given verdict and record |
| Whether introductory portion of jury charge misdescribed sudden-emergency defense | Introductory description was erroneous and prejudicial | No objection was made at trial; any error was not substantial given special verdict and competing proximate-cause theories | Waived and not reversible; no substantial error shown |
Key Cases Cited
- Luke v. Powell, 63 Ga. App. 795 (explains sudden-emergency doctrine; defendant not held to same standard when no time for deliberation)
- Jimenez v. Morgan Drive Away, 238 Ga. App. 638 (sudden-emergency available where peril was sudden, caused by others, and left no time for thought)
- Stephens v. Hypes, 271 Ga. App. 863 (any slight evidence allows submission of sudden-emergency defense to jury)
- Franklin v. Hennrich, 196 Ga. App. 372 (conflicting evidence about existence of emergency does not bar submission to jury)
- Willis v. Love, 232 Ga. App. 543 (charge on sudden emergency authorized where defendant encountered an unexpected wreck and made split-second choice)
- Shilliday v. Dunaway, 220 Ga. App. 406 (discusses substantial-error standard for jury-charge review)