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Case No. 18-2039

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

County:
Black Hawk

Resisters

Richard J. Wermerskirchen and Carol M. Wermerskirchen

Applicants

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 Resisters

Jordan M. Talsma
John R. Walker, Jr.

Attorneys for Applicants

R. Todd Gaffney
Kellen B. Bubach

Supreme Court

Oral Argument Schedule

15-15-5

Dec 15, 2020 9:00 AM

Briefs

Supreme Court Opinion

Opinion Number:
18-2039
Date Published:
Mar 05, 2021
Date Amended:
May 05, 2021

Court of Appeals

Court of Appeals Opinion

Opinion Number:
18-2039
Date Published:
Feb 19, 2020
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.

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