Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
2. Grade-crossing accidents in the 21st century. Grade-crossing accidents continue to vex
the twenty-first century tort system. In the mid-2000s, the New York Times found that, “[o]n
average, one person a day dies at a crossing in the United States.” In a series of stories, the paper
documented the challenges plaintiffs face in wrongful death suits against railroad companies.
Among other things, the Times series suggested that railroads systematically destroyed relevant
evidence in grade-crossing cases to avoid liability. See, e.g., Walt Bogdanish, In Deaths at Rail
Crossings, Missing Evidence and Silence, N.Y. TIMES, Jul. 11, 2004.
Despite Cardozo’s apparent win in the judges versus juries debate in railroad crossings in
the 1930s with Pokora, some state courts have continued to demand a Goodman rule-like
structure in grade-crossing accidents, especially in single-track and open country situations. In
Ridgeway v. CSX Transportation, Inc., 723 So. 2d 600, 605 (Ala. 1998), the court found the
Goodman rule “deeply rooted in Alabama law” and elaborated that the rule in Alabama meant that
“a person who fails to stop, look, and listen before crossing a railroad track is, in the absence of
special circumstances, contributorily negligent as a matter of law.” The Supreme Court of
Virginia also adopted a version of Goodman, calling a driver who had failed to adequately stop,
look, and listen “the architect of his own misfortune.” Wright v. Norfolk & W. Ry. Co., 427
S.E.2d 724, 730 (Va. 1993). The driver had flouted Virginia law, which required “the operator of
a vehicle approaching a grade crossing . . . to look and listen at a time and place when both
looking and listening will be effective, intelligently using both eyes and ears.” Id. (internal
citations omitted).
Other state courts side with Pokora and resolve the grade-crossing debate on the side of
juries rather than judges. Judge Posner analogized an old Illinois railroad crossing rule to the
Goodman rule and found that “[b]oth rules buck the twentieth-century trend—as strong in Illinois
as anywhere—toward leaving questions of care to the jury to be decided under the broad,
unelaborated standard of negligence.” Trevino v. Union Pac. R. Co., 916 F.2d 1230, 1235 (7th
Cir. 1990). And the more complicated the rail crossing, the more likely the plaintiff will get past
the judge to the jury. For example, in McKinney v. Yelavich, 90 N.W.2d 883 (Mich. 1958), the
Supreme Court of Michigan refused the lower court’s efforts towards “rule canonization” of
contributory negligence in crossing cases, given that the pedestrian plaintiff had been hit in a
complicated, poorly marked six-way intersection. The court gave a history of the Goodman and
Pokora before explaining its view of the problem with allowing judges to craft hard and fast rules
in negligence cases:
We have elaborated upon the history of the stop, look and listen “rule” because it is
characteristic of a host of others. Each has its origin in a justifiable holding in a
particular fact situation. By lazy repetition the holding becomes a “rule,” entirely
divorced from its creative facts. It grows as an excrescence of injustice until its very
strength concentrates a court’s attention upon it, with, normally, the result seen in
the Pokora case.
Id. Pokora reigns not only in most state courts, but also in the Third Restatement, which warns
that apparently “constant or recurring issue[s] of conduct” often turn out “on closer inspection” to
involve too many “variables” for one-size-fits-all treatment. Tort law, insist the editors of the
Restatement, adopts “an ethics of particularism, which tends to cast doubt on the viability of
general rules capable of producing determinate results.” RESTATEMENT (THIRD) OF TORTS: PHYS.
& EMOT. HARM § 8 (2010). On the other hand, even the Restatement editors concede that
“[o]ccasionally . . . the need for providing a clear and stable answer to the question of negligence
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