California Civil Jury Instructions (CACI) (2017)

804. Lookout for Crossing Traffic

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804.Lookout for Crossing Traffic
A train operator must keep a reasonable lookout for vehicles and
people. If an operator discovers, or should have discovered, that a
vehicle or a person is on or near the track, the operator must use
reasonable care to avoid causing harm.
New September 2003
Directions for Use
For an instruction regarding the right to expect that others will use reasonable care,
see CACI No. 411, Reliance on Good Conduct of Others.
Regulations adopted by the Secretary of Transportation pursuant to the Federal
Railroad Safety Act preempt state common-law negligence claims based on general
allegations of “excessive speed.” (CSX Transportation, Inc. v. Easterwood (1993)
507 U.S. 658, 675 [113 S.Ct. 1732, 123 L.Ed.2d 387].) However, a negligence
action based on a duty to slow or stop a train to avoid a specific, individual hazard
is not preempted. (CSX Transportation, Inc., supra, 507 U.S. at p. 675, fn. 15.)
Sources and Authority
• “Obviously, the railroad may not be required to guarantee the safety of those
crossing its tracks. It is not required to anticipate that at every crossing, an
automobile will be driven in the path of the train. It is only required to exercise
ordinary care to discover such automobiles and to thereafter exercise care to
avoid a collision.” (Essick v. Union Pacific Ry. Co. (1960) 182 Cal.App.2d 456,
463 [6 Cal.Rptr. 208].)
• The following instruction was approved in Essick, supra, 182 Cal.App.2d at p.
461: “ ‘The duty of [defendant] toward persons using the private crossing we
are here concerned with was to exercise ordinary care to discover any such
persons on or near the crossing and to exercise ordinary care to avoid injuring
such persons after their presence on or near the track was discovered.’ ”
• “The train crew cannot assume that a highway crossing in the middle of a city
will be clear and they must keep a reasonable lookout for the presence of
intersecting traffic. This implies as a corollary the further obligation to have the
train under such control as may be reasonably necessary to deal with situations
which an ordinarily prudent operator would anticipate.” (Herrera v. Southern
Pacific Co. (1957) 155 Cal.App.2d 781, 785 [318 P.2d 784], internal citations
omitted.)
• “The installation and maintenance of automatic signals does not relieve a
railroad company of this duty of keeping a reasonable lookout for other traffic.”
(Herrera, supra, 155 Cal.App.2d at p. 786, internal citations omitted.)
• “We hold that . . . federal regulations adopted by the Secretary of
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Transportation pre-empt respondent’s negligence action only insofar as it asserts
that petitioner’s train was traveling at an excessive speed.” (CSX
Transportation, Inc., supra, 507 U.S. at p. 676.) However, a negligence action
based on a duty to slow or stop a train to avoid a specific, individual hazard is
not preempted. (Ibid, fn. 15.)
• In a thoughtful opinion, the Oklahoma Supreme Court has held the following:
“We hold that a specific, individual hazard is a person, vehicle, obstruction,
object, or event which is not a fixed condition or feature of the crossing and
which is not capable of being taken into account by the Secretary of
Transportation in the promulgation of uniform, national speed regulations. In
short, a specific, individual hazard refers to a unique occurrence which could
lead to a specific and imminent collision and not to allegedly dangerous
conditions at a particular crossing.” (Myers v. Missouri Pacific Railroad Co.
(Okla. 2002) 52 P.3d 1014, 1027, footnotes omitted.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, § 12.6
2Levy et al., California Torts, Ch. 23, Carriers, § 23.26[2] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.62
(Matthew Bender)
RAILROAD CROSSINGS CACI No. 804
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