matter of law that the plaintiffs contributory negligence are this action the trial court ruled that the plaintiff was either the plaintiff's conduct excuse me was either the sole proximate cause or greater than fifty percent of the cause of this a greater than fifty percent of the cause of his foolish that's important because when recognizing that there were questions of material fact regarding the defendants regarding whether this crossing was ultra hazardous and regarding whether the missing he'll sign was a cause on the trail for a took away the opportunity for a jury to hear the evidence and to weigh the evidence on there certainly can be multiple causes for a collision such as this would be the plaintiff's fault it could be the defendant's fault or be a combination of both in the ruling that as a matter of law the plaintiff's conduct was the cause of this collision that prevented the plaintiff from presenting these facts with jury under a decision in this case i think it's important to length these materials were presented to the trial court in opposition to the defendant's motion for summary judgment and as i'm sure the court is aware summary judgment is a drastic remedy it should only be granted when there are  trial court should determine whether there are tribal issues of fact and clearly based upon the record before this court plaintiff's unwary budget expert testimony and opinions and evidence there are many questions of material that should  they have a higher duty of care they have to provide additional warnings and this is this custom link in the briefs on what constitutes an ultra hazardous crossing is largely a question of fact i don't believe there is any case you take your part where the court rules as a matter of law a crossing is or is not a ultra hazardous crossing that require additional protection devices moreover when there is any evidence that a crossing is all for hazards that is a question of fact for the jury that is important in this case because the one fact that the trial court relied upon in ruling that mr arnold's conduct precluded this action was that he had an unobstructed view down the railroad flashing lights those would have provided an active warning for mr arnold that a train was approaching in his view to the left or to the right is inconsequential so the fact that the trial court relied upon the fact that this for arnel had an unobstructed view becomes in consequential if the trial if the jury in this case were to decide either question of fact in favor of the plaintiff and that's what i was talking about just a minute ago and it's borne out in some of the cases that are cited by the plate that the jury is entitle to weigh the conduct of the parties the juries entitle to hear with the defendant's alleged negligence was as the court recognized their questions of regarding that in here with the plaintiff's conduct was in the delegations against the defen the crossing was all for hazardous and should have to quit with gates and lights and the fact that a missing yield sign was a cause of the collision go right to the heart of the trial court's rule that mr arnold's conduct was a cause it was the cause of the largely a question of fact for the jury it only becomes a question of law when the undisputed facts and evidence indicate that all reasonable juries would return a verdict in favor or against the plaintiff and that's not the those in alexander there are inherent questions regarding whether the defendant satisfy its duties there are some cases where contributory negligence is resolved as a matter of law in each devices which is a widespread publication in the field of traffic engineering and the actual me so it's a combination of factors that are provided here and i'm i don't believe in any respect if id isn't consequential especially in light of the case on information that was not welcome to oh we look terminations for whether or not the crossing was also hazardous at the time of the of the accident the experts took into account  he does say specifically that he looked at the crossing as it would affect any motorist at any time you clued in mr arnold in that he considers all conditions that are existing there which could be a political to this man's travel on that day relying on those are fixed physical features of crossing the width of the road with the crossing the volume factors which is the character of the surrounding area it should come into consideration maybe not directly but certainly indirectly because as mr burnham says in his deposition you want to evaluate the crossing under the most stringent circumstances so that it's safe under all circumstances that are less stringent so to a certain extent i believe they can come into play based on the nature of the area surrounding the crossing i'm not suggesting it in nor is anybody for the plaintiff if there were any crops that may have  place here hours before the collision who were obligated by your full southern written policy and as well as the standard of care to check for signage of the crossing to check for roadway signs that were supposed to be posted to the cross both track inspectors knew that there were required to be able to signs there they knew that they had to inspect the signage and there's no notation and either of them remembered knowing the sign was missing so it's the plaintiff's contention that the sign was missing at the time and that's important because that trigger certain duties and responsibilities of these track inspectors they were required by the policy as well as standard of care to take immediate corrective action and i know that it's well documented in the briefs but they were required to call the bridges and building department report that the sign was missing they were required to all the dispatch department to train dispatcher and ask for a slower a stop or a reduced speed where they were also they could have also service flag and physically use flash from their truck and wave down a vehicle or train until the sign was replaced mr stanfield said that he had done these things before when confronted with missing or downed signs in any one of these four things are all four of them together would have undoubtedly avoided this collision because the train would not have a right to cross it at the same point and i recognize that the defendant state's case is that says an inherent part of a collision happening is that the two vehicles or the two parties come together at a certain time and they look at that he's case where there is allegations of slate adjustments to the speed of the train twelve minutes and thirty eight minutes before crossing that's not the case here i'm talking about a localized hazard at a specific crossing were a train would have had to either slow down or stop at this particular crossing and that is how the failure of these track inspectors to identify the sign was found w cause of mr arnold's collusion so if we look at that claim of the plaintiff that the track inspectors were negligent and didn't do their jobs and we look at the ultra hazardous claim either one of those claims if the jury decides for the pla that if they sign a traffic control device at the crossing one of the few this is a passive crossing there were not automatic gates and lights of the crossing so if a sign it's required to be there by law that the unrebutted testimony of fuel but more importantly if there was a slow order to stop order or a stop and or a speed restriction it's simple fact that the train doesn't arrive going fifty nine miles per hour at the same time mr arnold's vehicle if there is a flag in there mr arnold stops he's physically flagged down by the gentleman waving his flag is saying stuff there's a train coming after the train comes mr arnold with proceeded over the process so there's a active component to the plane which would be the ultra hazardous nature of the crossing the required gates and lines there is also a component that the train you know would have had a local restriction in speed within a reasonable maybe within the whistle poster with a third of a mile before this where it would have reduced its speed or in a stop and flag the tree physically stops before the nose of the locomotive enters the crossing the conductor physically gets out serves as a flagman to flag down any traffic while the  counsel you're out of time to tell everybody thank you very much m day noticed this and yields no such proof there is no proof of notice against which of them on that point of the proximate cause issue is a very important one and we cite a number of cases from this state and others that really quickly dispose of the argument well if you'd only done this or that the two participants would have met same point in time that's not proximate causes very fundamental they did have a lot of experts we did oppose all of them thankfully so because we were able to establish that what they had say in the matter very much at all their opinions were thoroughly contaminated by improper evidence which judged the army no good serial holdings leading up to the summary judgment motion for close their efforts then it wasn't successful to use information that specifically prohibited from use by the federal immunity star privilege statute twenty three the case i the comes to mind most prominently is the i'm merchants national bank of aurora case fairly recent decision that imprecise that one of the older cases of mr randall mentioned bassett says this affectively the same thing you not only can't is it irrelevant and over nitrogen paints or application with it might be driving up and down the road not relevant to the question the question is at the time that mr arnold in this case approached this crossing was across answer has in this case we have something that's quite neat and i'll just mention in turn what i intended to start with for that is we have a video of the whole bit and i hope of the court was able to access that i struggle with it so good i'm glad because when you can see exactly what happened in this lab platter the flat part of the brain count let me turn to were intended to start and that is summary judgment on the overwhelming fall in favor of all of the defendants don't forget about vance township they're not here today vance township was a vigorous participant in this litigation filed their own summary judgment it was heard on the same day as the railroads and their motion was granted right along with ours on the identical issue the fault of mr arnold that was the basis for that decision because the pla chose not to appeal the trial court's order as regards defendant vance township that order the july fifteen order he came a final order binding on the parties in this case plaintiffs and defendants the light it is it is the law of this case it involved an application of to to be precise i learned something in this case that i've never bought about direct s basis for his decision the doctrine also operates and should here i respectfully submit to prevent an anomalous in congress  as you apply it in this case think about it this rule necessarily bars the final judgment on the one hand in favor of bans township  on the issue of mr arnold's overwhelming cause on the one hand says they are inviolate they cannot be challenged they're not even on here are on appeal of course on the one hand and then on the other in sa claims against the third party defendants and the matter with court order a motion to dismiss for failing to state a claim and the trial work in that case said no cause of action no no duty on the part of joining landowners to make the stoppel it doesn't matter as i said in norfolk southern appeal that came to this court judge connected held that the farrier of the norfolk southern the against the joining landowners the defendant nor for and western could have done so and had to and had to in order to preserve the issue for further consideration that was the of his holding that applies precisely precisely to this case we have the plaintiff suing suing vance township in normal of southern same adenike whole issue presented to the court same exact can challenge conclusion of judge the army that plane it was sold for fifty one percent was the whole accident stated in even more simple terms you can't have two different final judgments on the same issue same party same case same facts can it's legally impossible and that's exactly what would happen here if this court reversed judge the arms opinion and sent it back to the draft board when ordered southern to go to a jury trial in a matter that's already been decided sadly the same issues already have already been decide us for mr arnold's approach there was the the trial court's conclusion that's holding the plaintiffs to see them was more than fifty percent of all causing the accident is not dependent on one chick we are legally not dependent upon negating or ruling oral no first no one knows what he was thinking and everybody knowledge is that but that's not his duty his duty upon approach to an intersection like this is to pay attention written how annoying statutory law stopping  flat from three to five hundred feet you can see fifteen hundred feet down the way it's it's just white over and yes there are cases where the evidence is overwhelming that's the word used in the state's directed  standard where there are no genuine issues of fact yes you can always come up with some issues of fact i suppose in just about anything in the world but genuinely sure that's what counts the field case bad time one of the arguments that was made in opposition to that argument was well that's preempted by federal law and the district judge agreed in that case and then he went on the whole kind of like judge the arm and setting all that aside overwhelming and should barley claim notwithstanding the existence that we just held with was buyable by itself the extreme as it was crossing so i think it's a really important  favor of that proposition like they are here or there are really any genuine issues of mirror material fact just beyond wrote about half a dozen words in the history of this case writing out there him to use in permissible evidence which they're experts when they so the court i believe made its ruling appropriately based upon those facts but that also goes to the heart of this issue about altering hazaras it's done on a case by case basis fact by fact basis so the deal case really has no application here it's completely factually distinguishable because we know mr arkell wasn't on the crossing we don't he wasn't stopped there it he didn't violate the he'll sign because it wasn't there when we look at what the common element in all of these claims these legal claims is it that were there hours before this if the course is legal cause however does that necessarily go to the jury the foreseeability should go it's foreseeable that if there was a gates and lights at the crossing is one of your others mentioned activated there are a lot of cases that are cited in the briefs by both sides where motorists don't and i think the courts largely rule out when they do make a determination that rocks for their own contributory negligence was the cause they rule because it wasn't foreseeable the railroad complied with all of its duties it had the gates and lights they were working the train crew did with they were supposed to do it was the motorist who did it maybe that is of questionable but here it's foreseeable if there were gates and lights that mr arnold would in light of all of the things just trying well i think there are a couple things the first one is that it's track inspectors who are out there that they have the obligation to take corrective action and it's foreseeable if they don't recognize the signs it's required to be there is been a track inspector there flagging people down there should have been a slow or should have been a stop work were speed restriction when this yield sign should have been detected corrective action was required and that would have mooted any of these other issues that's why the causation element here was the railroads kind of a cause of this collision is so important so important that it's determined by a jury and the jury should be able to weigh the conduct in weigh the haws ation arguments is a minute by the plaintiff