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Richard J. Wermerskirchen and Carol M. Wermerskirchen
v.
Canadian National Railroad, a/k/a CN, a/k/a CN Railway; Chicago Central & Pacific Railroad, a/k/a CCP Illinois Central Railroad Company; Tim Dorsey, and Josh Yokem
Resister
Richard J. Wermerskirchen and Carol M. Wermerskirchen
Applicant
Canadian National Railroad, a/k/a CN, a/k/a CN Railway; Chicago Central & Pacific Railroad, a/k/a CCP Illinois Central Railroad Company; Tim Dorsey, and Josh Yokem
Attorneys for the Resister
Jordan M. Talsma
John R. Walker, Jr.
Attorneys for the Applicant
R. Todd Gaffney
Kellen B. Bubach
Supreme Court
Oral Argument Schedule
15-15-5
Dec 15, 2020 9:00 AM
Briefs
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Summary
Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Heard by Doyle, P.J., and Tabor and Schumacher, JJ. Opinion by Tabor, J. (27 pages)
Richard Wermerskirchen suffered serious injuries when a Chicago, Central & Pacific Railroad Company (CCP) freight train struck the road grader he was operating at a railroad crossing in rural Black Hawk County. Wermerskirchen sued for negligence. The district court granted the CCP’s motion for summary judgment on claims of failure to keep a proper lookout and failure to slow or stop the train. The court decided the Federal Railroad Safety Act of 1970 (FRSA) preempted those common law claims. The court submitted the case to a jury on Wermerskirchen’s claim that the crew failed to sound an audible warning. The jury found no negligence. Wermerskirchen appeals both the summary judgment and trial rulings. OPINION HOLDS: Deciding whether the crew kept a proper lookout, or failed to slow or stop, and deciding whether the dense fog affected its ability to do so are fact questions for a jury to decide. Not all state tort claims that touch on the topic of a train’s duty to brake to avoid a collision could be preempted by the federal regulations setting speed limits. In addition, the district court did not abuse its discretion in excluding the near-miss evidence. Finally, we find no error in the six jury instructions Wermerskirchen unsuccessfully challenged.