                           No. 95-3700




RODNEY KIEMELE; LILLIAN KIEMELE,*
                                *
     Plaintiffs - Appellants    *
                                *   Appeal from the United States
     vs.                        *   District Court for the
                                *   District of North Dakota.
SOO LINE RAILROAD COMPANY,      *
                                *
     Defendant - Appellee       *




                    Submitted:   June 10, 1996

                        Filed:   August 20, 1996


Before BEAM and HEANEY, Circuit Judges, and BOGUE,* Senior
District Judge.


BOGUE, Senior District Judge.


     Rodney and Lillian Kiemele appeal the district court’s summary
judgment dismissal of their negligence action. Because we find
that genuine issues of material fact exist, we reverse and remand.



     *The HONORABLE ANDREW W. BOGUE, Senior United States
     District Judge for the Western Division of the District
     of South Dakota, sitting by designation.
                          I.   BACKGROUND


     On December 2, 1993, Rodney Kiemele (Kiemele) was driving
himself and three co-employees to work at an oil rig outside of
Portal, North Dakota. The road on which Kiemele was traveling was
covered with compacted snow and ice, and heavy fog limited
visibility. At approximately 7 p.m., Kiemele ran his automobile
into the 112th car of a train owned and operated by Soo Line
Railroad Company (Soo Line). The train was stopped on Department
of Transportation Crossing No. 699031G, also known as "Swenson’s
Crossing." The crossing was marked with an advance warning sign
and crossbucks.   Kiemele suffered injuries as a result of this
collision.


     The Kiemeles brought this diversity action against Soo Line
alleging that Soo Line was negligent in its operation of the train,
in its maintenance and operation of the crossing, and in its
failure to improve and upgrade the crossing. The district court
granted Soo Line’s motion for summary judgment. The district court
found that no material facts were in dispute, that Soo Line
demonstrated it "had no duty to have performed the various tasks
which the plaintiff alleges should have been done," and that the
application of N.D.C.C. § 39-09-01 required dismissal.          The
Kiemeles appeal this order. Having carefully reviewed the record
and the arguments of the parties, we conclude that the district
court erred in its dismissal of the Kiemeles’ action.

                         II.   DISCUSSION


     A.   Standard of review




                                -2-
     We review de novo a district court's grant of summary
judgment. United States v. Green Acres Enter., Inc., 86 F.3d 130,
133 (8th Cir. 1996). Under Rule 56 of the Federal Rules of Civil
Procedure, a movant is entitled to summary judgment if he or she
can "show that there is no genuine issue as to any material fact
and that [he or she] is entitled to judgment as a matter of law."
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82
S. Ct. 486, 7 L. Ed. 2d 458, 488 (1962). In determining whether
summary judgment is appropriate, the facts and inferences are
viewed in the light most favorable to the nonmoving party. The
burden is placed on the moving party to establish both that there
are no genuine issues of material fact and that it is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106
S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986).


     The nonmoving party "must do more than show that there is some
metaphysical doubt as to the material facts,"      Matsushita, 106
S. Ct. at 1356, and "[w]here the record as a whole could not lead
a rational trier of fact to find for the nonmoving party, there is
no 'genuine issue for trial.'" Id. We review the district court’s
grant of summary judgment de novo. Allen v. Bridgestone/Firestone,
Inc., 81 F.3d 793, 795 (8th Cir. 1996); Landreth v. First Nat’l
Bank of Cleburne County, 45 F.3d 267, 268 (8th Cir. 1995).


     The issues of negligence, proximate cause, and contributory
negligence are generally questions of fact for the trier of fact.
Steckler v. Miller & Holmes, Inc., 303 N.W.2d 560, 563 (N.D. 1981);
Schalesky v. Soo Line R.R., 180 N.W.2d 236, 239 (N.D. 1970). These
issues only become questions of law when only one conclusion could
be drawn from the record in the case.       Id.   The pending case
involves factual disputes concerning whether Soo Line breached any
duty it owed to the Kiemeles and whether Rodney Kiemele was

                               -3-
contributorily negligent. Because the record in this case could
lead a rational trier of fact to find for the Kiemeles, summary
judgment was inappropriate.



     B.   Breach of duty


     The law of the state of North Dakota governs this diversity
negligence action. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58
S. Ct. 817, 82 L. Ed. 1188 (1938). According to the Supreme Court
of North Dakota,


     Actionable negligence consists of a duty on the part of
     the allegedly negligent person to protect the plaintiff
     from injury, a failure to discharge the duty, and a
     resulting injury proximately caused by the breach of the
     duty.   If no duty exists on the part of the alleged
     tortfeasor, there is no actionable negligence.

Deigel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D. 1996).


     Under North Dakota law, the existence of a duty is a
preliminary question of law for the court. Bulman v. Hulstrand
Constr. Co., 521 N.W.2d 632, 640 (N.D. 1994). If, however, the
existence of a duty is contingent on fact issues, these issues must
be resolved by the trier of fact. Barsness v. Gen. Diesel & Equip.
Co., 383 N.W.2d 840, 843 (N.D. 1986). In this case, Soo Line owed
Rodney Kiemele the general duty to exercise reasonable care under
the circumstances.    See Tom Beuchler Constr., Inc. v. City of
Williston, 392 N.W.2d 403, 405 (N.D. 1986); N.D.C.C. § 9-10-06.
"Reasonable care under the circumstances necessarily includes any
specialized knowledge, facts, or skill on the part of one charged
with a duty." Id.




                               -4-
     The district court found that Soo Line did not breach any duty
it owed to the Kiemeles. The Kiemeles assert that a question of
fact exists as to whether or not Soo Line breached the duty it owed
Rodney Kiemele by blocking the crossing, by improperly maintaining
the crossing signs, by failing to take further precautions to warn
of the train once it did block the crossing, and by failing to
construct or alter the crossing so that it was safe for the
traveling public. Generally, whether or not Soo Line’s actions or
inactions constituted a breach of its duty would be a question of
fact.


     The Kiemeles first assert that Soo Line’s act of blocking the
crossing constituted a breach of duty.1 Fact issues exist as to


     1
       The parties engaged in some discourse regarding the appli-
cation of N.D.C.C. § 49-11-19 to this claim. Section 49-11-19
provides as follows:

     No person shall operate any train in such a manner as
     to prevent vehicular use of any roadway for a period of
     time in excess of ten consecutive minutes except:

          1.   When necessary to comply with safety
               signals affecting the safety of the
               movement of trains;
          2.   When necessary to avoid striking any
               object or person on the track;
          3.   When the train is disabled, by accident
               or otherwise;
          4.   When the train is in motion except when
               engaged in switching operations;
          5.   When there is no vehicular traffic
               waiting to use the crossing; or
          6.   When necessary to comply with a
               government statute or regulation. ...

We find that this statute is irrelevant to the determination of
negligence in this case. However, regardless of whether or not
N.D.C.C. § 49-11-19 was violated, the length of time that the
train blocked the crossing before the accident occurred may be
relevant to breach of duty issues.

                               -5-
when the employees of Soo Line knew they would have to stop the
train. These would bear on the issue of whether or not Soo Line’s
employees could have stopped the train at some other point on the
tracks so that it would not have blocked Swenson’s Crossing. There
is also an issue as to how long the train had been stopped before
the collision. This may be relevant to determining whether or not
Soo Line’s failure to separate the train at the crossing was
reasonable.


     The Kiemeles next assert that Soo Line breached its duty by
failing to maintain the crossbucks at the crossing. Pursuant to
N.D.C.C. § 24-09-03, Soo Line has a duty to erect and maintain
crossbucks at the crossing. Whether or not Soo Line did in fact
maintain the crossbucks at Swenson’s Crossing is at issue. The
Kiemeles contend that the crossbucks at Swenson’s Crossing had lost
their reflectivity.


     The crossing where the accident occurred was designated by
advance warning signs and crossbucks. Soo Line contends that these
signs were sufficient warning of the crossing regardless of the
existing conditions. Section 24-09-01.1 of N.D.C.C. states that
advance warning signs and crossbucks "must be deemed adequate and
appropriate for warning of the existence and nature of each
railroad crossing for all purposes whatsoever." On its face, this
statute would seem to preclude the Kiemeles’ claim that failure to
provide further warning constituted a breach of duty.      In this
case, however, there is a fact issue as to whether or not these
signs had lost their reflectivity.2 If the signs were not apparent


     2
       The North Dakota Supreme Court has held that similar
evidence regarding a railroad’s failure to maintain the
reflectorized material on warning signs was properly admissible.
South v. Nat’l R.R. Passenger Corp. (AMTRAK), 290 N.W.2d 819,
840-41 (N.D. 1980).

                               -6-
to travelers due to their improper maintenance and if Soo Line knew
or should have known of this fact, then N.D.C.C. § 24-09-01.1 would
be inapplicable. Thus, genuine issues of material fact exist as to
this issue.


     Soo Line further asserts that any claim regarding the
sufficiency of warning of the crossing is preempted by federal law
because federal funds were used to upgrade Swenson’s Crossing in
1981. In addressing a similar preemption issue, the Court in Elrod
v. Burlington Northern Railroad Co., held that: "[A] railroad’s
common-law duty of care continues until the federally prescribed
devices are actually installed and operating." 68 F.3d 241, 244
(8th Cir. 1995).    After federally funded warning devices are
installed and operating, federal preemption occurs. Id. In this
case, there is a fact issue as to whether or not the crossbucks
were "operating." If they had lost their reflectivity, they were
not operating, and Soo Line is not entitled to the benefit of
federal preemption.


     The Kiemeles assert that Soo Line breached its duty of due
care by failing to construct or alter the crossing so that it was
safe.   In 1977, Soo Line added ballast to the Swenson Crossing
sight. In 1980, Soo Line laid a new rail over the crossing. The




                               -7-
Kiemeles argue that pursuant to N.D.C.C. §§ 49-11-04,3 49-11-05,4
and 49-11-06,5 Soo Line had a duty to adjust and restore the
crossing and highway approaches after it altered the crossing in
1977 and 1980. We find that the record as a whole could not allow
a rational trier of fact to conclude that Soo Line breached any
duty regarding the construction or alteration of Swenson’s
Crossing.



     3
         Section 49-11-04 of N.D.C.C. provides as follows:

     Every corporation constructing, owning, or using a
     railroad shall restore every stream of water,
     watercourse, street, highway, or canal across, along,
     or upon which such railroad may be constructed, to its
     former state or to such condition that its usefulness
     shall not be materially impaired, and thereafter shall
     maintain the same in such condition against any effects
     in any manner produced by such railroad.
     4
       According to the Kiemeles, from 1943 to 1979, N.D.C.C.
§ 49-11-05 provided: "All railroad corporations operating a line
of railway in this state shall build or cause to be built and
kept in repair, safe and sufficient crossings over such line at
all points where it shall intersect any public highway in use."
Between 1979 and 1993, section 49-11-05 provided that this duty
shall be performed in accordance with N.D.C.C. § 49-11-06. In
1993, section 49-11-05 was repealed; thus, there is some issue as
to whether or not it applies in this case.
     5
       Section 49-11-6(1) of N.D.C.C. provides that "A public
highway-railroad crossing at grade shall be constructed of a
grade of earth on one or both sides of the railroad track, as the
location may require, . . . and such grade shall be of such slope
as shall be necessary for the safety and convenience of the
traveling public."

     Section 49-11-6(3) of N.D.C.C. provides that "At such time
as tracks through a railroad crossing are raised or otherwise
altered by the railroad, the railroad shall, unless otherwise
ordered by the commission, adjust and restore the crossing and
the highway approaches, surfaces, and grades as shall be
necessary for the safety and convenience of the traveling
public. . . ."

                                 -8-
     In order to allege a breach of this duty, the Kiemeles would
have to establish the condition of the crossing and the approach
before any work was performed by Soo Line, the fact that the
crossing was actually raised or altered, and if the crossing had
been raised or altered, the fact that the work was performed by Soo
Line. The Kiemeles rely on the deposition testimony of Soo Line’s
Public Works Engineer, Chuck Anderson, to establish that when the
ballast was added to the crossing it is "probable" that the
crossing was modified. Not only did Mr. Anderson lack definite
knowledge as to whether or not the approaches to the crossing were
modified in 1977, but he also testified he did not know who
performed the modifications. The modifications, if they occurred,
could have been performed by either Soo Line or the highway
authority. This evidence is too tenuous for a reasonable jury to
find that Soo Line breached any duty it owed in constructing or
altering the approaches and crossing.

     C.   Contributory negligence


     The district court found as a matter of law that Rodney
Kiemele was contributorily negligent. Contributory negligence is
normally a question of fact for the jury. Steckler, 303 N.W.2d at
563; Schalesky, 180 N.W.2d at 239. In North Dakota a plaintiff’s
contributory negligence will bar recovery only if his or her
negligence was as great as the combined negligence of all of the
other individuals who contributed to the injury. N.D.C.C. § 32-
03.2-02.   The apportionment of fault between a plaintiff and a
defendant is generally an issue for the trier of fact. Champagne
v. United States, 513 N.W.2d 75, 79 (N.D. 1994).


     The district court found that Rodney Kiemele violated N.D.C.C.
§ 39-09-01. Section 39-09-01 provides as follows:


                               -9-
     No person may drive a vehicle at a speed greater than is
     reasonable and prudent under the conditions and having
     regard to the actual and potential hazards then existing.
     Consistent with the foregoing, every person shall drive
     at a safe and appropriate speed when approaching and
     crossing an intersection or railroad grade crossing. ...

Soo Line agrees with this determination. It contends that as a
result of the decreased visibility and compacted snow and ice on
the road, Kiemele was traveling at an excessive speed. Soo Line
contends that Kiemele’s negligence in failing to reduce his speed
was the sole cause of his injuries or at least that his fault was
greater than fifty percent.


     It also appears that the district court found Kiemele failed
to operate his vehicle in a manner which would enable him to stop
within the "assured clear distance ahead."     Under North Dakota
law, a driver has a duty to proceed at a rate of speed which will
enable him or her to stop within the assured clear distance ahead.
See Wisnewski v. Oster, 110 N.W.2d 283, 288 (N.D. 1961); Doll v.
Treiber, 76 N.W.2d 910, 914 (N.D. 1956).


     In order to find a violation of either the assured clear
distance rule or N.D.C.C. § 39-09-01, one must determine that the
driver was proceeding too fast. Before determining whether or not
Rodney Kiemele was driving at an appropriate speed for the
conditions, several factual issues must be resolved. For example,
there is a genuine issue of material fact as to Kiemele’s rate of
speed when he struck the train. Kiemele testified that before the
accident he was traveling between 35 and 40 miles per hour.
Kiemele’s expert determined he was traveling between 30 and 35
miles per hour.    One of Kiemele’s passengers believed he was
traveling between 40 and 45 miles per hour. There are also genuine
issues of material fact as to the conditions which existed the
night of the accident. These issues involve the extent Kiemele’s

                               -10-
vision was obstructed by the fog and the extent the road conditions
affected Kiemele’s driving and stopping ability. Whether or not
Kiemele should have been expecting the crossing is also a fact
issue which must be resolved. Kiemele testified that the night of
the accident he knew he would be crossing railroad tracks.       He
stated, however, that he thought the tracks were 3½ miles from the
turn onto the road where the accident occurred. The tracks were
actually a little over 2 miles from the turn.


     Soo Line also asserts that Rodney Kiemele violated N.D.C.C. §
39-09-02(1)(a).    Section 30-09-02(1)(a) provides that when a
driver’s view is obstructed, it is presumably lawful for the driver
to travel at 20 miles an hour when approaching within fifty feet of
a railroad crossing. Section 39-09-02(1)(a) presupposes the fact
that the driver knew he or she was approaching a railroad crossing.
This statute would not be applicable in cases where the driver did
not see or have notice of the impending crossing.       There is a
genuine issue of material fact as to whether or not Kiemele saw or
had notice of the crossing.


     Even if N.D.C.C. §§ 39-09-01 or 39-09-02(1)(a) did apply in
this case, in North Dakota, violation of a highway safety statute
is only evidence of negligence. Keyes v. Amundson, 391 N.W.2d 602,
608 (N.D. 1986). A violation of a statute is not negligence per
se. Haider v. Finken, 239 N.W.2d 508, 516 (N.D. 1976).


     Soo Line also argues that Kiemele was contributorily negligent
because the train had the right of way. Generally, trains do have
the right of way. Schnell v. N. Pac. Ry. Co., 1 N.W.2d 56, 63
(N.D. 1941). There is some question, however, as to whether or not
the train would still have the right of way when it is parked on a
crossing as opposed to moving or being temporarily stopped on a
crossing for only a moment.     Nevertheless, "[r]ailroads cannot,

                               -11-
because they have the right of way, disregard reasonable
precautions for the safety of the public. They cannot say that the
public shall cross their tracks at its peril."     Schalesky, 180
N.W.2d at 240.

                         III.   CONCLUSION


     There is a genuine issue of material fact as to whether Rodney
Kiemele was contributorily negligent.      There are also genuine
issues of material fact precluding summary judgment relative to
whether Soo Line breached duties it owed the Kiemeles by blocking
the crossing, whether Soo Line improperly maintained the crossing
signs, and whether Soo Line improperly failed to take further
precautions to warn of the train once it did block the crossing.
These issues must be resolved by a trier of fact. Accordingly, the
judgment of the district court is reversed and remanded.


BEAM, Circuit Judge, dissenting.


     There can be no breach of duty by the Soo Line unless there is
a duty owed. And, the court correctly finds that "[u]nder North
Dakota law, the existence of a duty is a preliminary question of
law for the court." Supra p. 4 (citing Bulman v. Hulstrand Constr.
Co. Inc., 521 N.W.2d 632, 640 (N.D. 1994).      Without concerning
itself with whether the district court appropriately and correctly
performed this initial function, the court ventures into a tangled
web of perceived disputes of fact, none of which are material to
the outcome of this litigation, and holds that summary judgment was
improper. From this result, I dissent.


     Any duty owed by the Soo Line to the Kiemeles must be
considered under two lines of inquiry. First, we must analyze the
duty owed, if any, with regard to the actual operation of the

                                -12-
train. Second, we must determine the Railroad's responsibility for
the maintenance, operation and upgrade of the crossing at which the
accident occurred.   Unless and until the court establishes the
nature and character of the duty owed, its "Breach of duty"
discussion (supra pp. 4-9) is irrelevant and unnecessary.

     Here, the issue of train operation is really a matter of non-
operation.   The train was stopped.    It was at rest across U.S.
Department of Transportation Crossing No. 699031G, and this
designation is of some importance as I will discuss later. While
the train was in this position, Rodney Kiemele drove his automobile
into the side of car 112. Even though Kiemele was clearly guilty
of contributory negligence as a matter of law under the undisputed
material facts of this case, we need not reach that issue to affirm
the district court.


     Neither the court nor the Kiemeles point to any duty supported
by statute, common-law principles or case law that required the Soo
Line to avoid stopping the train at a grade crossing. Moreover,
there was no duty to break the train apart in order to avoid
blocking this or any other crossing in the vicinity, at least as
far as the claims asserted by the Kiemeles are concerned.


     The Kiemeles' attempt to create a duty by showing a violation
of N.D.C.C. § 49-11-19, a statute that is North Dakota's version of
the well-established "ten-minute rule." As correctly recognized by
the court, this statute is irrelevant in this situation, supra note
1, because the statute's purpose is to facilitate traffic flow, not
to prevent an automobile from running into the side of a train,
moving or stopped.    The court, after reaching the right legal
conclusion, then, curiously, finds some relevance in the evidence
of the stop to a purported analysis of whether it might have been
"reasonable" for the railroad to "separate the train" at the

                               -13-
crossing. Supra p. 6. Unless there was a duty on the part of the
Railroad to "separate the train" in these circumstances, which was
not established, the reasonability of any length of stopping time
is of no real consequence.


     Perhaps the most problematic approach by the court is its
application of preempted North Dakota statutes to question the
adequacy of the warning, including adequacy of reflectivity,
imparted by the devices in place at crossing No. 699031G. First,
as a policy consideration, in most instances, the railroad lines
have been in place well before motor cars were in widespread use.
The advent of increased motor vehicle traffic over existing
trackage brought about safety concerns at grade crossings.
Congress, in recognition of an equitable division of responsibility
for these safety problems, adopted federal legislation which, under
certain circumstances, extinguishes state law duties inherent in
railroad/motor vehicle grade crossings. 23 C.F.R. § 646.214(b)(3)
& (4) (1995). These rules were promulgated by the Federal Highway
Administration (FHWA) under the Federal Railway Safety Act of 1970
and the Highway Safety Act of 1973. See Elrod v. Burlington N.
R.R. Co., 68 F.3d 241, 242 (8th Cir. 1995).    Where, as here,
federally approved designs are implemented with federal money,
federal preemption occurs.


     There is no dispute, as shown by the Department of
Transportation designation at this crossing, that the adequacy and
design of the warning devices at crossing 699031G, were approved by
the FHWA. Likewise, there is no material factual dispute that the
approved warning devices were installed and operating through
federal funding as contemplated by federal law.           Thus, as
indicated, when these federal regulations apply, as they do here,
"`state tort law is pre-empted.'" Id. at 244 (quoting CSX Transp.,
Inc. v. Easterwood, 507 U.S. 658, 670 (1993)). Accordingly, the

                               -14-
court's use of N.D.C.C. § 24-09-03 to erect a factual reflectivity
issue, in the face of the use of federally approved and implemented
warning devices, violates federal preemption law. In short, there
is no duty owed by the Soo Line to the Kiemeles under the
undisputed material facts of this action.


     There are no substantial differences between the circumstances
of this case and those the court dealt with in Elrod. Any material
factual disputes discerned by the court in this case are illusory.
The district court was correct.     Any other ruling violates the
preexisting precedents of this court as established by Elrod. See
also St. Louis S.W. Ry. Co. v. Malone Freight Lines, Inc., 39 F.2d
864 (8th Cir. 1994), cert. denied, 115 U.S. 1963 (1995).          I
dissent.


     A true copy.


           Attest:


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




                               -15-
