describes the roadway as heading an incline in talk of skis and he describes the roadway as having an incline as he approached the great cross and he could see beyond the tr the next stop light which was again i guess about a block and a half away from him and he describes that he reaches a dip in the roadway as he approaches the incline in the end suddenly without warning he seized the train the district court ran its summary judgment stating that the plaintiff failed to provide sufficient evidence of negligence on behalf of kansas city railway company and also stated that the plaintiff failed to provide evidence sufficient of an adequate warning in briefing the matter for the district court plaintiff pointed out several operating rules or the operating code of  god lines for trains and route weights one of which was the rule that states basically the trains shall not occupied crossings for more than ten minutes of not practical to do so also stated in the complaint was the anti blocking statute for the state of mississippi which limited that time to five but we do understand that perhaps the statute goes too far in trying to regulate rail transportation but certainly kansas city r company did not do anything to monitor the amount of time that it occupies a crossing it did nothing to provide shawn easy or the motoring public of warning of the obstruction of the district anything else in particular about the crossing other than that it was blocked now perhaps what opposing counsel will point out during their argument is that israel was at home prior to this incident earlier in the day he was off of work he had been spending time with the free and his child was there they were playing video games and they had consumed some alcohol his girlfriend the mother of the children came in and contacted the police and he was ordered to leave the home as opposed to being a wrist left for a few hours and at that time that's when he decided to go and get a pack of cigarettes but approaching the crossing he was aware that the preemption because in your brief you don't cite the preemption section from the i c c you cited from the f a r s a so show how you we have that precedent which is a difficult case  now in this case there were no fuses present but so are you agreeing that l m controls as to any per se negligence yes or no i will concede the point in terms of the five minute twenty four minutes and given the type of crossing that is involved here that is a has the state of mississippi case law recognizes that there is an occupied crossing and but still on the line you know the case pretty well remember how the court drops a footnote saying even a state law case if it's built on blocking is likely preempted is that a fair description of  ok and when i looked at your expert scott jim scott i think is the same expert that testified in eelam he was it didn't look like he made any causal connection to this tragedy other than the blocking he's ask multiple times i mean put aside possible driver and you're good to acknowledge that aspect of this case but did did did your expert testimony point to him saying that anything was responsible what's your best case on on if we do on the occupied crossing rule what's your best case that shows that the circumstances he looked at here in the photos and all that are still unusually hazardous i would say our best case is king versus illinois central railroad the citation for that is three thirty seven after practice at page five fifty three that's a two thousand and three so it's are and that's where the court l could have seen this traffic light as he claimed underneath the rail car as he is approaching the crossing so the elevation of the crossing itself the dark takeoff and the fact that he can s beyond the trying as he's approaching in the train is sitting there he does not have the visual cue of movement of the wheels going back and forth you didn't dispute the signs right there of no you do not dispute the signs he was aware with and the women that show up immediately confirm there's a street light there and it was on his or is that wrong on my part there is one i think would have been out of his view on the backside of the cross and that there was one  but is that i guess the misconception of him approaching intensity beyond the train of guys is what is specific to this particular incident and inching it's a submissive of course make an exception where a vehicle approaches a cross street with a steep and varied influence of the vehicles hit last night strike the train start and that's what is ailing countered here that testimony is undisputed that he could stay beyond the tree and he did not have  is misapplied in that the experts testimony on that particular issue is limited to the rails and just outside of the rules it does not take into account this incline and or slope that  gist of the occupied crossing dr is the train is there and you see it but what happens if you see beyond it such that you cannot appreciate the danger of the train and that's what he's ill encountered now do you think that the conditions here are similar to to the situation the dangerous condition that you had in the king case i would say issue or at least some of them i thinking thinking was interest sharp curve and there was some blocking the obstruction please the court i'm charlie ross i represent kansas a southern roadway company there were questions asked about this case is indistinguishable from england same expert same underlying facts train over a crossing while the or came down solidly on that and said it was preempted by the i c c today the anti blocking statute and the common law negligence claimant but no thirteen said that that was also preempted based upon crossing alone then they went to the general negligence claim just a warning in the general negligence claim that's the warning they said that that was not preempted that's correct and they said that there was an issue of fact as to whether summary judgment was appropriate so they remained in on that this is a different case this is a different case and in this and that but just to carry out the logic of that because a little bit not exactly clear to me the line they're drawing but but therefore failure to warn type state negligence argument simple negligence could relate more to safety and therefore fit into b f f f r s a ok so i guess that's the hardest part of this case for me statute for a length of time that the plaintiff said was too long is preempted by the i c c today then you get to the question did the railroad have a duty to provide additional warning at that crossing that was blocked and the district judge relied upon the occupied crossing doctrine which is dispositive in this case the occupied draka cross and case crossing does have an exception for extraordinary circumstances li said the king cases or best case this court in the king case it was not a curve in the road it was sort of a it was mainly a darkness of night and this court said under mississippi law darkness of light or the fact that the crossing is i mean that the car on the crossing is dark is not sufficient if you look at the owen case he's not sufficient in not sufficient to be unusually hazardous that's correct and he could see the red lights a block or two beyond the car he did not testify that his head lice did not aluminite the car we had undisputed expert testimony that they approach to the cross and was only about five percent and that the headli if he had normal headlights and he was driving reasonably the headlights would illuminated the car in the zero one case there was very similar testimony to what the plaintiff relies upon here and in the owen case oral testimony of witnesses was all that was before the court it may be that the appellant's would made out a case that would stand a motion for directed verdict but even under the rule that the evidence must be really relieved in the light most favorable to the pellets as testimony and that's the situation here there is a little depth it's about five degrees the fact that there's a little dip does not name is extremely dangerous extraordinary and there's undisputed testimony that however even supposin this two thousand and thirteen case this is seven o five if there were five thirty one says even supposing longs ruminations on the plate to say expert on the crossings narrow pavement skewed angle rough surface and steep incline or admissible the mississippi supreme court rarely clarified recently clarified that such factors irrelevant or irrelevant to a company's duties at public crossings reason and road companies do not have any control over the grade of the crossing nor any responsibility to change it likewise they are not responsible for pave in the roads leading to the cross on the mississippi brown recognises that the mississippi supreme court has recognized that unusual circumstances so as to take something out of the occupy drive crossing doctrine cannot be based upon things beyond the railroads control like the slight dip in the road approach in the can you compare the facts in the king case compared to the faction and in this case what why in king were the circumstances extraordinary or whatever he should be excused from the occupied crossing role because the aka op accident happened that night mississippi case law does not support king's argument so evidently that's the only thing i glean from the opinion evidently kerr obviously the railroad doesn't control the curvature but those factors come into whether or not it's an unusually hazardous cross i think under i think it's the travis case in mississippi case which this court in brown relies upon that curves and dips in the road at one point in time could take something out of the occupied crossing doctrine but the law has changed in the city sets the travis case which the this court in brown relied upon so give me an example of what would be an unusual hazard today if the laws changed it can include darkness can include incline can include curved so what would be unusual asms if you such and this is hypothetical if you suddenly came upon a crossing and there were a row of trees that completely blocked your sight and the railroad did not provide warning so that you could see the train approaching and you would be aware of the train approaching despite the trees railroad does have control of vegetation on its crossing and so if there was a car over the crossing but as approaching your view of the car was obscured by vegetation or something such as that that might qualify but it is a very limited in that situation that the train's approaching and you're looking down the tracks and of the vegetation blocking your view of the tracks i misspoke you're on if you had a car over the occupied crossing doctrine applies to moving cars and stationary or if you had cars over the crossing and the approach was such that you could to give me the best cite for that i didn't understand that what's the best mississippi law i didn't think the boy decision for example said that but you're telling me the laws changed yes what's the best case that acknowledges the change they don't usually hazardous only means factors that the railroad controls this is brown the illinois doctrine and they're very limited but if there is an exception then the railroad can be required provide additional warnings under state law but then you have federal law and this crossing federal funds were used for the passive warning devices i mean for the that means any claim that there should be additional warning at the crossing is preempted as a matter of federal law you read shanklin to say that if any federal monies are expended with any warning sign at that point all failure this is one of your three alternative arguments your first defending the court's application of the occupy but then you're saying we asserted three alternative they never answer those right but this one is the one of three and would you say this is the best of your three alternative argument to had to move to these alternative arguments would the proper relief be that we would remain in we're gone if you look at i refer you to page thirty five of our brief page thirty four we mention few zs or players at the district court level in opposition to the summary judgement so that argument is way but regardless if you look at footnote nineteen or brief the preemption or the sweep of the preemption arguments is is broad i mean it i know we're we're seeing these things affect the economic regulations and therefore it's a nationwide concern but they're pretty safety related as well  i mean that's i know that decision that issue may have been decided by us and we have no flexibility but but the eelam point notes just leaves a little bit of clarity in my mind well i why why then have the state laws that say five minutes in the  rudd he sell he turned on division street going to the crossing it was only thirty to forty seconds to get there how long the train it actually going over the crossing is irrelevant from a safety point standpoint as to mr but it might be relevant to the ambulance or to police departments it might have been relevant in freiburg where the blocking of the crossing caused the business to lose lose business but even in freiburg where it might have caused an economic loss losing business this court clearly said the negligence per se claim under the texas anti blocking statute which is virtually identical to mississippi and the common law of negligence claims were also barred and to the extent the operating rule of k c s is relevant at all one is not required by federal records it's a k c s rule to the extent it's relevant it's only evidence of a common law negligence blocking claim which is itself preempt going back to the warning we also point out in addition to the occupied crossing claim in the f r s a preemption claim we also point out that recent mississippi last mississippi coast section sixty five one one seventy five s interpreted by the job's decision which aside and our brave says that warning to the crossing as far as the duty under state law is the responsibility of the mississippi department of transportation not the railroads i will refer you to was there and it was reflect arise and it was in good shape there were other warnings there also there was a reflector eyes yield sign there was an advance warning sign and the plaintiff testified he was aware of the crossing and he testified that he knew it was an act of cross and i know on summary judgment it's only comparative negligence is not an issue but going back to the occupy crossing the road the doctrine says that the railroad has a right to  a train over the crossing has all the warning that a reasonable motorist travelling at a correct speed with headlights that work properly is entitle to at this think as a matter of law somebody is point to one blood alcohol level is not a reasonable motorist on the job what the train parked there stationary doing doing it is not exactly clear from the record plaintive claims that it was twenty minutes  but is expert interpreted the data wrong given to an issue of fact there i guess our best estimate judge is ten or twelve minutes it definitely been there longer than five minutes according to the record but once again that i'm trying to be as honest as i can that is irrelevant and from a matter of federal law and sixty one war and one seventy five for someplace thirty six of our  brief the jurisdiction of mississippi department of transportation shall be exclusive with exclusive with respect to public roadway railroad crossings either upgrade or otherwise and job interprets that the state transportation and the final point i want to make and in a footnote we point out that the f r s a preemption goes not only to what we're used to the flashing lights on the bars coming down but it also goes to flag man and manual devices manual manual devices would be fuses of flares you're be happy to answer for the questions but i think that covers my org thank you beginner situation is not under the control of the railroad that they're not liable for an such a dip or in the darkness that that that's something out of their control and therefore they're not responsible or liable for those this is this of the car in particular its blocking had had reflect rising numbers on it or is that a disputed issue fact i would say that they are not going to say that it did not have markings the witness that approached the i'm not going to say they did not have the reflective more but certainly if they're going to occupy the crossing as long as they did in these general color of operating rules do relate to safety and if they're going to disregard those things characterization of the blocking statute as being for the convenience of the public that is cars that don't want to wait forever to cross the railroad track as opposed to a safety measure up to safety  four minutes and the same exact accident that happened here could have happened at minute four so it's it's not preventing chorus from hitting occupied trains when the fact that it's a time limit does seem to support their view that it's all about keeping traffic moving and like emergency vehicles not just regular traffic but i think you know any any case there's a bunch of these in all come in various states you know any case that says it's it's designed primarily as a safety measure