United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-4198NI

_____________ Dennis Steva, Co-Administrator for * the Estate of Derek William Steva; * Deborah J. Steva, Co-Administrator for * the Estate of Derek William Steva; * David Daniel Berger, by Dennis Steva * Appeal from the United States and Deborah J. Steva, * District Court for the Northern * District of Iowa. Appellants, *

* [UNPUBLISHED] v. * * Soo Line Railroad Company, * * Appellee. *

_____________ Submitted: May 21, 1997

Filed: July 11, 1997

_____________ Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.

_____________ PER CURIAM.

On a fog gy winter night in rural Iowa, Derek William Steva drove his vehicl e into the sixty-eighth car of a ninety-one car train operated by the Soo Line Railroa d Company. Derek was killed. Dennis and Debor ah J. Steva brought this action against the Railroad as administrators for Derek’s estate and on behalf of his son. Although-2-

the crossi ng was marked with federally funded reflectorized cross buck signs, th e Stevas alleged the Railroad failed to provide adequate warning devices at the crossing. The d istrict court granted summary judgment to the Railroad, holding the Stevas ’ inadequate warning device clai ms were preempted by the Federal Railroad Safety Act of 1970, 49 U.S.C. §§ 20101-20153 (1994). The Stevas appeal. It is undisputed that federal funds participated in the installation of the cross buck warning signs, with Federal Highway Administration (FHWA) approval. Thus, th e Stevas’ inadequatewarning device claims are preempted. See Elrod v. Burlington N. R.R. Co. , 68 F.3d 241, 244 (8th Cir. 1995). To avoid preemption, the Stevas point out that no FHWA diagnostic team evaluated the crossing and decided the cross buck s we re adequate. The federal government’s funding of crossing devices implicitl y indicates federal

regulators have considered the devices’ adequacy, however. See id. The Stevas alsocontend there is a genuine issue of fact: whether the cross buck signs were “operating” at the time of the accident. See Kiemele v. Soo Line R.R. Co. , 9 3 F.3d 472, 475-76 (8th

Cir. 1996); Lubben v. Chicago Cent. & Pac. R.R. Co. , No. 96- 146, 1997 WL 283549, at *5 (Iowa May 21, 1997) (inadequate maintenance o f warning d evice claims are not preempted). This contention comes too late. In thei r resistan ce to the Railroad’s summary judgment motion, the Stevas never alleged o r presented evidence that the signs were n ot working when the accident occurred. They cannot cr eate the issue of fact on appeal. See Roth v. G.D. Searle & Co. , 27 F.3 d 1303, 1307 (8th Cir. 1994); Fed. R. Civ. P. 56(c). Last, the Stevas a ssert the State may impose more stringent requirements to reduce local safety hazards. See 49 U.S.C. § 20106 (1994). According to the Stevas, the crossing was especial ly hazardous because of the high volume of traffic, the lack of an act ive warning device, the grade and angle, and the su rrounding vegetation. These conditions can commonly be found at othe r crossings, however, and can be adequately addressed within uniform, nationa l standards. See O’Bannon v. Union Pac. R.R. Co. , 960 F. S upp. 1411, 1420-21 (W.D. Mo. 1997 ). Thus, the Stevas have failed to identify any “specific, individual hazard”-3-

that would save their claims from preemption. See CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 675 n.15 (1993).
We affirm the district court. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.