                   CSX TRANSPORTATION, INC., Plaintiff-Counter-Defendant-Appellee,

                                                        v.

             TRISM SPECIALIZED CARRIERS, INC., Defendant-Counter-Claimant-Appellant,

                             Continental Insurance Company, Defendant-Appellee.

                                                  No. 98-8886.

                                         United States Court of Appeals,

                                                Eleventh Circuit.

                                                  July 26, 1999.

Appeal from the United States District Court for the Northern District of Georgia. (No. 2:95-CV-41-WCO),
William C. O’Kelley, Senior District Judge.

Before COX, Circuit Judge, FAY, Senior Circuit Judge, and NANGLE*, Senior District Judge.

           PER CURIAM:

           This appeal from the grant of judgment on the pleadings for the plaintiff-crossdefendant involves a

negligence action arising from a collision between a tractor-trailer and a train on Georgia's Cedar Creek Road

grade crossing. Because the Georgia courts have interpreted O.C.G.A. §§ 32-6-50 and 32-6-51 to abrogate

the railroad's duty to install warning devices at railroad crossings, we find no error and affirm.

                                         FACTS AND BACKGROUND

           This litigation arises out of a collision between a Trism Specialized Carriers (Trism) tractor-trailer

and a CSX Transportation (CSXT) locomotive. The facts relevant to the disposition of this case are as

follows.

           Rodney Russell, an employee of Trism, was delivering a piece of machinery to a Ford dealership in

Barrow County Georgia. The route Mr. Russell followed caused him to travel east on Georgia's Highway

8, and then head north on Cedar Creek Road. As Mr. Russell made his left turn to head north on Cedar Creek




   *
    Honorable John F. Nangle, Senior U.S. District Judge for the Eastern District of Missouri, sitting by
designation.
Road, he crossed over the railroad tracks for the first time. These tracks run parallel to, and are just north of,

Highway 81.

        Mr. Russell proceeded to the Ford dealership, dropped off the piece of machinery, and turned the

tractor-trailer around to head back south on Cedar Creek Road. As he approached the railroad tracks for the

second time, just north of Highway 8, Mr. Russell brought his vehicle to a halt to look for an oncoming train.

The Cedar Creek Road grade crossing has a single cross-buck at the intersection, but there are no bells, signal

lights or other device to warn of an approaching train. As Mr. Russell saw nothing to indicate the presence

of an approaching train, he proceeded to cross the tracks. After driving onto the train tracks, Mr. Russell first

noticed the CSXT train approaching from the west or right hand side. He accelerated in attempt to clear the

vehicle, but was only able get the cab portion of the tractor-trailer clear of the oncoming train. The flatbed

was struck and the collision resulted in a major train derailment.

        On March 23, 1995, CSXT filed suit against Trism and The Continental Insurance Company, Trism's

insurer, claiming the derailment and resulting damage was a result of Trism's negligence. In response, Trism

asserted the defense of contributory negligence and filed a counterclaim contending CSXT's negligent failure

to install adequate warning devices and signals at the Cedar Creek Road grade crossing was the cause of the

collision. The case proceeded to trial and at the close of all evidence, CSXT moved for judgment as a matter

of law on its complaint and on Trism's counterclaim. The district judge denied CSXT's motion with respect

to its complaint. With respect to Trism's counterclaim, however, the district judge entered judgement for

CSXT ruling that Georgia statutory law overruled any common law duty to install warning devices or signals

at the Cedar Creek Road grade crossing. Trism filed this appeal, claiming the latter ruling by the district

judge was erroneous.

                                                 DISCUSSION




   1
    Georgia's Highway 8 runs in an east-west direction. Similarly, the railroad tracks run in an east-west
direction and are located just north of Highway 8. Cedar Creek Road dissects both the railroad tracks and
Highway 8, running north and south.
        The issue before this Court is whether §§ 32-6-50 and 32-6-51 of the Georgia Code of Public

Transportation (GCPT) work in conjunction to abrogate a railroad's common law duty to install devices to

warn of approaching trains at grade crossings. After review of the statutes involved and the pertinent case

law as announced by the Georgia state courts, we hold that they do.

         As a federal court sitting in diversity, we are required to apply the law as declared by the state's

highest court. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). The

Georgia Supreme Court, however, has not answered whether the railroad's common law duty to install

warning devices at grade crossings survives the enactment of the GCPT. In the absence of authority directly

on point, we must determine the issues of state law as we believe the Georgia Supreme Court would. See

Towne Realty, Inc. v. Safeco Ins. Co. of Am., 854 F.2d 1264, 1269 (11th Cir.1988).

        Trism argues, and we acknowledge, that Georgia law is replete with case law recognizing a railroad's

duty to alert drivers of the danger of an oncoming train at grade crossings. See, e.g., Central of Georgia Ry.

Co. v. Larsen, 19 Ga.App. 413, 91 S.E. 517 (1917); Southern Ry. Co. v. Lowry, 59 Ga.App. 109, 200 S.E.

553 (1938); Isom v. Schettino 129 Ga.App. 73, 199 S.E.2d 89 (1973). Even after the GCPT was enacted,

the Georgia courts recognized liability for railroad companies who failed to install adequate devices to warn

of the danger of an approaching train. See Central of Georgia R.R. Co. v. Markert, 200 Ga.App. 851, 410

S.E.2d 437 (1991); Wall v. Southern Ry. Co., 196 Ga.App. 483, 396 S.E.2d 266 (1990); Southern Ry. Co.

v. Georgia Kraft Co., 188 Ga.App. 623, 373 S.E.2d 774, 776 (1988)(overruled by Evans Timber Co. Inc. v.

Central of Georgia R.R. Co., (Ga.App.1999)). These cases, however, relied on precedent decided prior to

the enactment of the GCPT and neglected to consider §§ 32-6-50 and 32-6-51's effect on the common law.2


   2
    Section 32-6-50 of the GCPT places the duty to install warning devices on the governmental body
responsible for the road that crosses the railroad tracks by stating, in pertinent part:

        (a)The department shall promulgate uniform regulations governing the erection and maintenance
        on the public roads of Georgia of signs, signals, markings, or other traffic-control devices, such
        uniform regulations to supplement and be consistent with the laws of this state.

        (b)In conformity with its uniform regulations, the department shall place and maintain, or cause
        to be placed and maintained, such traffic-control devices upon the public roads of the state
        highway system as it shall deem necessary to regulate, warn, or guide traffic, except that the
Therefore, we turn to the decisions of the Georgia Supreme Court in Kitchen v. CSX Transportation, Inc., 265

Ga. 206, 453 S.E.2d 712 (1995) and the Georgia Court of Appeals in Evans Timber Co. Inc. v. Central of

Georgia R.R. Co., (Ga.App.1999) as they provide a better barometer for forecasting the law as would be

decided by the Supreme Court of Georgia.

        In Kitchen, the Georgia Supreme Court held that under the GCPT, the "statutory duty to maintain the

public road and any other warning device [on which an overpass had been removed] was exclusively that of

the county...." Kitchen, 453 S.E.2d at 714. Although that is not precisely the issue before this court, the case

is important because the Georgia Supreme Court noted that their conclusion was "bolstered by OCGA §§ 32-

6-50 and 32-6-51(a), which place the exclusive duty in the governmental body to install and maintain traffic

control devices on public roads (including railroad crossings), and which statutorily prohibit private entities,

including railroads, from placing traffic control devices on public roads." Kitchen, 453 S.E.2d at 714 n. 6.

While this statement may be considered dicta, it is particularly insightful as it directly speaks to the issue we

address today.




        department shall place and maintain a sign for each railroad crossing at grade on the state
        highway system, warning motorists of such crossing, provided that each railroad company shall
        also erect and maintain a railroad crossbuck sign on its right of way at every such crossing.

        (c)In conformity with the uniform regulations of the department, counties and municipalities shall
        place and maintain upon the public roads of their respective public road systems such
        traffic-control devices as are necessary to regulate, warn, or guide traffic except that counties and
        municipalities also shall erect and maintain a sign for each railroad crossing at grade on their
        respective county road or municipal street systems, warning motorists of such crossing.
        Furthermore, each railroad company shall erect and maintain a railroad crossbuck sign on its right
        of way at all such crossings.

        O.C.G.A. § 32-6-50(a)-(c).

                Section 32-6-51(a), in addition, makes that duty exclusively that of the government by
        prohibiting the railroad from erecting any sign or signal other than a crossbuck, providing:

        (a)It shall be unlawful for any person to erect, place, or maintain within the right of way of any
        public road any sign, signal, or other device except as authorized by subsection (d) of this code or
        as required or authorized by Code Section 32-6-50 or any other law.

        O.C.G.A. § 32-6-51(a).
         Moreover, the Kitchen decision caused the Georgia Court of Appeals to revisit the application of the

GCPT to the common law cause of action for a railroad's negligent failure to install warning devices at grade

crossings. In Evans Timber, a claim was filed against a railroad company alleging the railroad was negligent

in "failing to install warning devices, such as gates, lights, or bells, at the grade crossing to warn motorists

of approaching trains." Evans Timber. That court held that the trial court properly granted the railroad's

motion for directed verdict, holding that §§ 32-6-50 and 32-6-51(a) "clearly delegated responsibility for the

public road, including traffic control devices, warning signals, and protective devices to the governmental

entities and removed any such responsibility from private parties." Evans Timber. Without some persuasive

indication that the state's highest court would rule otherwise, we are bound to apply the law as decided by the

Georgia Court of Appeals. See Silverberg v. Paine, Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th

Cir.1983)(stating a federal court is required to follow intermediate state court's decision absent some clear

indication the state's highest court would rule otherwise).

         In light of the above decisions, we are convinced that the district court correctly ruled that §§ 32-6-50

and 32-6-51(a) of the GCPT statutorily overrule the state common law cause of action against railroads for

negligent failure to install adequate warning devices at public grade crossings.3 Accordingly, we find no

error.

         AFFIRMED.




   3
    We recognize, as argued by counsel for Trism, that such an action by the Georgia Legislature is
surprising; however, if this result is contrary to the intent of the legislative branch it can be corrected
rather quickly. As a federal court bound by state law, we are obliged to apply these statutes in accord
with the interpretations rendered by the state court of appeals.
