The Honorable Richard S. Arnold stepped down as Chief Judge of the 1 United States Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He has been succeeded by the Honorable Pasco M. Bowman, II.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________ No. 97-3077

________________ Freda M. Bryan, *

Appellant, *

v. * District Court for the
Norfolk and Western Railwa y * Company, a corporation, *

Appellee. * *

* Appeal from the United States

* Eastern District of Missouri.

*

*

________________ Submitted: January 12, 1998 Filed: September 10, 1998

________________ Before RICHARD S. ARNOLD, Chief Judge, and WOLLMAN and HANSEN , 1 Circuit Judges.

________________ HANSEN, Circuit Judge.The Honorable Lawrence O. Davis, United States Magistrate Judge for the 2 Eastern District of Missouri, hearing the case by consent of the parties pursuant to 18 U.S.C. § 636(c) (1994).
2 Plaintiff Freda M. Bryan a

ppeals from the summary judgment the district court 2 entered against her in this wrongful death action. We affirm.
Early on the morning of March 18, 1993, Charles Bryan set off for work i n Jonesburg, Missouri. He

stopped at the home of John Wells, a co-worker with whom he often drove to work. On that morning, Mr. Wells did not accompany Mr. Bryan, so at 5:45 a.m., Mr. Bryan continued on a lone. He drove west down the Wells' driveway in his truck, turned north onto Massas Creek Road, and proceeded about 200 feet onto a grade crossing, where he was struck and killed by a westbound freight train. At the time of the accident, the Massas crossing was protected only by reflectorize d crossbucks, the familiar X-shaped signs whic h read, "RAILROAD CROSSING." The crossbuck s had been installed pursuant to a state-wide plan by the Missouri Publi c Servic e Commission to improve safety devices at all grade crossings in the state, and federal funding had contributed to the installation.
Bryan's wife brought this wrongful death suit in Missouri state court to recover damages for her loss. She named as a defendant the Norfolk and Western Railwa y Comp any (the N&W), which operated the train and owned the tracks at the grad e crossing where Mr. Bryan died. The N&W properly removed the action to the district court for the Eastern District of Missouri on the basis of diversity jurisdiction, see 28 U.S .C. §§ 1332, 1441, and cross-claimed against the city and county in which th e
cross ing was located, as well as the Missouri Highway Commission, to whos e dismiss al all parties later stipulated. The N&W then moved for summary judgment , which the district court granted. The city and county were dismissed upon the grant of summary judgment.3

On appeal, Mrs. Bryan contends that the district court erred by granting sum mary judgment. First, she claims a fact issue exists over whether the N&W's engine cre w failedto warn of the train's approach to the Massas crossing; second, that there is an issu e of fact concerning whether the crew failed to keep a proper lookout as the y approached the crossing; and finally, that her claim that the N&W fail ed to maintain the grade crossing adequately is not preempted by federal or state law. We review th e district court's grant of summary judgment by the well-known de novo standard , "viewing the evidence in the light most favorable to [the non-moving party], and . .

. aff irm[ing] only if we agree there are no genuine issues of material fact and that th e [moving party] is entitled to judgment as a matter of law." United States v. Dico, Inc. , 136 F.3d 572, 578 (8th Cir. 1998); see also Celotex Corp. v. Catrett , 477 U .S. 317, 322 (1986). Sitting in diversity, we apply the substantive l aw of the applicable state, in this case, Missouri. See Erie R. Co. v. Tompkins , 304 U.S. 64 (1938). Finally, we review de novo a district court's determination of state law, see Salve Regina College v

. Russell , 499 U.S. 225, 231 (1991).

I. Failure to Warn
The N&W's common-law duty to w arn of a train's approach to a grade crossing has been codified in Missouri. A bell, horn, or whistle shall " be sounded at least eighty rods [one qua

rter mile] from the place where the railroad shall cross any such road or street. . . and be sounded at intervals until it shall have crossed such road or street." Mo. Rev. Stat. § 389.990 (1994). Should the railroad fail to fulfill t his duty, and should that failure result i n injury, the railroad is liable for the injury. Id. Mrs. Bryan asserts that t he N&W did not signal the approach of its freight train, and that this failur e caused her husband's death. To make a sufficient offer of proof in r esponse to a motion for summary judgment, she must elicit admissible evidence that no warning sounded. Missouri law carefully describes what type of evidence is admissible.4

[N]ega tive evidence, such as "I did not hear," is positive and o f substantial probative force or value in a situation where it is reasonably certain the witness could and would have heard, that is, where "it i s shown that a w itness was in close proximity to the track, in a position to have hear d the whistle (or bell) if it was sounded, and was attentive t o whether the whistle was in fact sounded."
Chamberl ainv. Thompson , 256 S.W.2d 779, 781-82 (Mo. 1953) (quoting Knorp v

. Thompson , 212 S.W.2d 584, 588 (Mo. 1948) (en banc)).
In opposition to the N&W's summary judgment motion, Mrs. Bryan submitted affidavits of John and Elaine Wells, the couple whose house her husband had visited shortly before the accident. In response, the N&W dep osed the Wells, and additionally introduced dep ositions from the train crew. Elaine Wells' affidavit stated that she did nothear any whistle on the morning of March 18, 1993; John Wells' affidavit state d that he heard a whistle only "when the train was ad jacent to [his] house." (J.A at 184.) However, the deposition testimony of both witnesses revealed more. Mrs. Well s testified that she was in the kitchen of her house, in the corner farthest from the tracks, and heard no sounds of a train at all until her husband opened the front door, at which time she heard a train. She also testified that, living in such close proximity to th e tracks, she had become accusto med to hearing trains, and that, on the fateful morning, she had no particular reason to be attenti ve to the sounds of trains near the house. Mr. Wells testified in his deposition that he first heard the train whist le when it was near the house, but that he couldn't say how near, nor did he look outside to see the train, nor
was he sur e whether the train had come even with the house or whistled at som e unknown distance east. Contrarily, the train crew described in detail the route the y traveled. They crossed three roads in short order, the third of whic h was Massas Creek Road where Mr. Bryan died. They testified that they began sounding the whistle i n advance of

the first crossing and continued to sound it until the accident at Massa s Creek Road. The total distance from where the whistle first sounded to the Massa s Crossing was 3,856 feet--well over the required quarter mile.5

In reviewing wh ether a grant of summary judgment was appropriate -- whether any genuine issue of material fact ex isted regarding the N&W's alleged failure to warn of the approach o f their train -- we do not weigh the evidence or attempt to determine witness credibility. See Cody v. Cigna Healthcare of St. Louis, Inc. , 139 F.3d 595, 598 (8th Cir. 1 998). Nonetheless, Missouri law clearly precludes admission of the Wells' "negative evidence," w hich purports to show that no whistle warned of the impending approach of the train. See Chamberlain , 256 S.W.2d at 781-82; Knorp , 212 S.W.2d at 588. We do not engage in a credibility d etermination when we acknowledge, as did the district court, that there is no showing that either witness was actually attentive to whether a train whistle blew, and that it is unclear whether Mrs. Wells was in a position to hear a whistle if it in fact blew. Since Missouri law requires us to disregard th e Wells' tes timony, there exists no dispute regarding the train's warning on the recor d before us, and summary judgment on Mrs. Bryan's failure to warn claim wa s appro priate. The evidence is insufficient as a matter of law to generate a factua l question of whether or not the whistle was sounded.
II. Failure to Keep a Lookout

Mrs. Bryan argues next that she demonstrated that a genuine issue of materia l fact exists on the question

of whether the N&W failed to keep a proper lookout as the train approached the Massas crossing. To survive summary judgment on this c laim, she must create a genuine question of fact on whether the crew stayed properly attentive to vehicula r traffic, and also on whether, had they kept their lookout, the acciden t would have occurred. See Bartlett v. Kansas City S. Ry. , 854 S.W.2d 396, 400 (Mo. 1993) (en banc). As the district court noted, Missouri law did not require the trai n
crew to brake as soon as they saw Mr. Bryan, but only when he entered the "zone of danger ," that point where an accident would certainly occur. See , e.g. , Bunch v

. Missouri Pac. R.R. , 386 S.W.2d 40 (Mo. 1965) (no duty to stop the train simpl y because a vehicle slowly approaches the c rossing); Bulkley v. Thompson , 211 S.W.2d 83 (Mo. Ct. App. 1948) (no duty on train until traveler enters danger zone). Mr. Bryan6

passed the "point of no return" at 10 miles per hour roughly 2 seconds before the train arrived. At 50 miles per hour, the 47-car train could not possibly have stopped in so short a time. So, even if Mrs. Bryan could show that the crew wa s not looking, she has notcreate d a question of fact demonstrating that such a failure caused the accident

. Once Mr. Br

yan entered the zone of danger, no further action by the train crew could have altered the chain of events rapidly enough to prevent the collision. Since Mrs

. Bryan could not prove causation, the district court correctly gr anted summary judgment on this claim.
III. Failure to Maintain the Crossing

Mrs. Bryan' s final theory of negligence is that the N&W failed to properl y main tainthe grade crossing at Massas Creek Road. The district court granted th e N&W's motion for summary judgment on the grounds that any common -law negligence claims for failure to maintain the crossing were preempted by both federal and stat e law. Mrs. Bryan appeals that determination.
The N&W acknowledges that it had a duty at common l aw to maintain adequate protections at all its grade crossings. It asserts, however, that regulations promulgated pursuant to the Federal Railroad Saf ety Act of 1970 preempt any claim against it. See 49 U.S.C. § 20106 (1994) and 23 C.F.R. § 646. 214(b)(3) and (4) (1998). This federal regulation "cover[s] the same subject matter as [state] negligence law pertaining to the maintenance of . . . grade crossings," CSX Transportation, Inc. v. Easterwood , 50 7 U.S. 658, 664 (1993), and "[e]xamination of these regulations demonstrates that, when they are appl icable, state tort law is preempted." Id. at 670. The question, then, i s whether th e regulations are applicable to the Massas crossing. If so, Mrs. Bryan' s claim is preempted.

Federal regulations are applicable if federal funds have been expended for th e installation of t

he warning devices at the crossing. "Federal funding is the touchstoneThe regulation in question, 23 C.F.R. § 646.214(b)(3) and (b)(4) reads: 3 (3)(i) " Adequate warning devices ," under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist: (A) Multiple main line railroad tracks. (B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing. (C) High speed train operation combined with limited sight distance at either single or multiple track crossings. (D) A combination of high speeds and moderately high volumes of highway and railroad traffic. (E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions. (F) A diagnostic team recommends them. (ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.

7 of preemption in this area." Elrod v. Burlington N. R.R. , 68 F.3d 241, 244 (8th Cir

. 1995). T o support its motion for summary judgment, the N&W presented both a deposition and an affidavit from its Assistant Dire ctor of Safety to show that the N&W had been reimbursed by federal monies for its installation of crossbucks across th e state, including those in place at Massas Creek Road. It also presented the Missouri state c ontract and Missouri Public Service Commission order regarding that installation. This uncontradicted evidence demonstrates con clusively that federal funds were expended for the crossbucks at the Massas crossing.
Despit e this showing, Mrs. Bryan argues that the federal regulations on grad e crossing safety were not followed at the Massas crossing, and therefore, the regulations are not "applicable." She bases this claim on the te stimony of her expert who asserted 3(4) For crossings where the requirements of §646.214(b)(3) are not applicable, the

type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.
8 that the Massas crossing demonstrated the characteristics lis ted in subsections (B), (C), and (E) of section 646.214(b)(3). Mrs. Bryan claims that since the Massas crossin g demonstrated these characteristics and no diagnostic team specificallyexempted it from the (b)( 3) requirement of an automatic gate, the federal regulations are not applicable and have not pre empted her state common-law negligence action. However, a line of
cas es in this circuit since Easterwoodmakes clear that when federal funds ar e expen ded for grade crossing warning devices, state law negligence claims ar e preempted if those devices are installed and working. Mrs. Bryan relies heavily on St. Louis S.W. Ry. v. Malone Freight Lines , 39 F.3d 864 (8th Cir. 1994), cert. denied , 514 U.S. 1110 (1995), and Elrod , 68 F.3d 241 (8th Cir. 1995), to show that her claim is not preempted. She misreads the law of this circuit.

In Malone , federal funding had been earmarked for warning light s and a crossing gate some 15 months before the accident from which the lawsuit arose. The lights had been installed, and construction of the gates had begun. In remanding for trial on the plaintif f's inadequate signalization claim, we held that federal preemption does no t occur when funds are de signated, but only when the planned devices are installed and operative. Malone , 39 F.3d at 867. On that basis in Elrod , we held that the plaintiff's clai ms were preempted since "it is undisputed . . . that the warning devices wer e installed and operating a

t the time of the accident." Elrod , 68 F.3d at 244. Again, we have hel d that "[a]fter federally funded warning devices are installed and operating , federal preemption occurs." Kiemele v. Soo Line R.R. , 93 F.3d 472, 476 (8th Cir

. 1996). In Kiemele , we held that the inadequa te protection claims were not preempted, because there was a factual issue whether the devices -- crossbucks just like the ones before us -- had lost their refle ctivity, and thus were no longer "operating." 93 F.3d at9

476. Mrs. Bryan has raised no such issue. See also Steva v. Soo Line R.R. , No. 96- 4198, 1997 WL 3 81854 (8th Cir. 1997) (unpublished disposition) (holding that "[t]he federal government's funding of crossing devices implicitly indicates federal regulators have considered the devices' adequacy . . . ").

Mrs. Bryan also relies on Shots v. CSX Transportation, Inc. , 38 F.3d 304 (7th Cir. 1994). In Shots , the court did not read Easterwood"literally," and permitted the plaintiff to take her inadequate warning claims to the jury despite a sh owing that federal funds had paid for the warning devices at the crossing in question, as Mr s. Bryan would like to do. We have addressed this argument before. "While Shots is undeniably more favorable to the plaintiffs, it is inconsistent with our Court's reading of Easterwoodin Malone , and we are bound by Malone ." Elrod , 68 F.3d at 244 . One might add that we
are also bo und by Elrodand Kiemele . We continue to hold that once federal fund s have been expended towards grade crossing safety devices, and those devices ar e installed and operating, state law negligence claims are preempted by federa l regulati ons. The district court correctly granted summary judgment in favor of th e N&W f or this reason. Since we find that the district court correctly determined tha t Mrs. Bryan's common law inadequate signalization claim is preempted by federal law, we decline to address whether Missouri statutory law has abrogated it.

IV.
Accordingly, we affirm the judgment of the district court.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.