In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2788

JOSEPH J. WAYMIRE,

Plaintiff-Appellant,

v.

NORFOLK AND WESTERN RAILWAY
COMPANY,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 C 1914--John D. Tinder, Judge.


Argued February 18, 2000--Decided July 14, 2000



      Before Posner, Chief Judge and Bauer and Manion,
Circuit Judges.

      Bauer, Circuit Judge. Joseph Waymire, a
conductor for the defendant Norfolk and Western
Railway Company ("N&W"), sued his employer under
the Federal Employers’ Liability Act ("FELA"), 45
U.S.C. sec.51 et seq., claiming that the post
traumatic stress he suffered after a train/truck
collision disabled him from continuing his
employment. The District Court found that
Waymire’s FELA negligence claims were superseded
by the Federal Railroad Safety Act ("FRSA"), 49
U.S.C. sec.20101 et seq., and entered summary
judgment in favor of N&W. Waymire appeals. We
affirm.

I.   BACKGROUND

      On June 8, 1996, Waymire was the conductor on
an N&W train that collided with a truck stopped
on N&W’s tracks at the McGalliard Road crossing
in Muncie, Indiana. Waymire was not physically
injured in the collision, but he claims that as
a result of the accident he developed post
traumatic stress syndrome and is completely
disabled from employment. The driver of the truck
suffered only scrapes and bruises.

      Waymire sued N&W under FELA, claiming that the
railroad company’s negligence in allowing the
train to travel at an unsafe speed and in failing
to install additional warning devices at the
crossing caused or contributed to cause the
accident./1 Just prior to the collision, the
train was traveling 20 to 23 miles per hour, well
below the 60 miles per hour speed limit set by
FRSA and the regulations promulgated thereunder.
Furthermore, at the time of the accident, the
McGalliard Road crossing was equipped with
federally funded, installed and approved warning
devices, including cantilevered flashing warning
signals that gave advance warning of an
approaching train, pavement markings indicating
the presence of railroad tracks, and a "DO NOT
STOP ON TRACKS" sign that motorists had to pass
before reaching the tracks.

      Arguing that its compliance with FRSA precluded
Waymire’s negligence claims under FELA, N&W moved
for summary judgment. The District Court
considered the statutes and ruled that FRSA and
regulations promulgated thereunder defeated
plaintiff’s allegations of unsafe train speed and
inadequate warning devices in his FELA negligence
action. We agree and affirm the District Court.

II.   DISCUSSION

       We review the District Court’s grant of summary
judgment de novo, drawing all reasonable
inferences in favor of the non-movant, Waymire.
Williams v. National Railroad Passenger Corp.,
161 F.3d 1059, 1061 (7th Cir. 1998). If we find
there is no genuine issue of material fact and
that N&W is entitled to judgment as a matter of
law, we will affirm the District Court’s
judgment. Fed.R.Civ.P. 56. Here, there are no
genuine issues of material fact and our inquiry
focuses on the application of the law to the
facts.


       A.   Unsafe Speed Claim

       In 1908, Congress enacted the Federal Employers’
Liability Act, 45 U.S.C. sec.51, et seq., to
provide a remedy to railroad employees injured as
a result of their employers’ negligence. Kossman
v. Northeast Illinois Regional Commuter Railroad
Corp., 211 F.3d 1031, 1035 (7th Cir. 2000). FELA
imposes on railroads "a general duty to provide
a safe workplace," McGinn v. Burlington Northern
Railroad Company, 102 F.3d 295, 300 (7th Cir.
1996):

Every common carrier by railroad while engaging
in commerce between any of the several States .
. . shall be liable in damages to any person
suffering injury while he is employed by such
carrier in such commerce . . . for such injury or
death resulting in whole or in part from the
negligence of any of the officers, agents or
employees of such carrier . . .

45 U.S.C. sec.51.

      As a general negligence statute, FELA neither
prohibits nor requires specific conduct by a
railroad. By contrast, the Federal Railroad
Safety Act of 1970, 49 U.S.C. sec.20101 et seq.,
proscribes railroad conduct by empowering the
Secretary of Transportation to implement
comprehensive and detailed railroad safety
regulations. 49 U.S.C. sec.20103 ("The Secretary
of Transportation, as necessary, shall prescribe
regulations and issue orders for every area of
railway safety."). The question with which we are
presented is whether a railroad company can be
liable in a FELA negligence action claiming
unsafe speed and inadequate warning devices when
the complained of conduct complies with the
conduct mandated by FRSA and its regulations. We
hold that it cannot.

      The vast majority of courts examining lawsuits
arising out of automobile/train collisions do so
under state law./2 Thus, the courts employ a
preemption analysis. We do not do so here, as we
are instead faced with the interaction of two
federal statutes. But, we find the opinion of the
Supreme Court on the subject of the preemption of
unsafe train speed claims to be instructive and
so we discuss it here.

      In CSX Transportation, Inc. v. Easterwood, 507
U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993),
the widow of a truck driver killed in a crossing
collision sued the railroad under Georgia law
alleging that the railroad operated its train at
an excessive speed and failed to maintain
adequate warning devices at the crossing. The
Court found that plaintiff’s excessive speed
claim was barred by FRSA’s preemption clause,
which provides that states may regulate railroad
safety "until the Secretary of Transportation
prescribes a regulation or issues an order
covering the subject matter of the State
requirement." 49 U.S.C. sec.20106 (emphasis
added). The Secretary of Transportation has
promulgated regulations under FRSA setting
maximum train speeds for certain classes of
railroad tracks, 49 C.F.R. sec.213.9, and the
defendant’s train was traveling within that speed
limit. Thus, Easterwood was not allowed to
maintain her excessive speed claim.

      In deciding whether the speed regulations
"covered" the field, ensuring preemption, the
Court noted that although they were written in
terms of maximum speeds, the regulations were
more than just ceilings, an argument also
advocated by the plaintiff here. If they were
merely ceilings, there arguably would be room for
railroad liability if the plaintiff could show
that conditions favored lower speeds. The Supreme
Court rejected that argument, saying that the
preemption clause does not require an inspection
of the regulation’s motivation, and, even if it
did, the structure of the regulations showed that
they were adopted with safety in mind. Id. at
674.

      We are persuaded by the Supreme Court’s
reasoning and find that in order to uphold FRSA’s
goal of uniformity we must strike the same
result. See 49 U.S.C. sec.20106 ("Laws,
regulations, and orders related to railroad
safety shall be nationally uniform to the extent
practicable."). In Easterwood, the train was
operating within the FRSA prescribed 60 miles per
hour speed limit, as was N&W’s train in this
case. It would thus seem absurd to reach a
contrary conclusion in this case when the
operation of both trains was identical and when
the Supreme Court has already found that the
conduct is not culpable negligence.

      We are not alone in our conclusion. Of the
other courts who have been presented with the
issue as it relates to FELA and FRSA, two have
held that the FELA plaintiff’s unsafe speed claim
cannot stand in light of the Secretary’s adoption
of the speed regulations in 49 C.F.R. sec.213.
See Rice v. Cincinnati, New Orleans & Pacific
Railway Company, 955 F. Supp. 739, 740-41 (E.D.
Ky. 1997) and Thirkill v. J.B. Hunt Transport,
Inc., 950 F. Supp. 1105, 1107 (N.D. Ala. 1996).
Only one other court has reached the opposite
result. See Earwood v. Norfolk Southern Railway
Company, 845 F. Supp. 880 (N.D. Ga. 1993). We
believe the former result to be the correct
result in light of FRSA’s goal of uniformity and
the Supreme Court’s holding in Easterwood and
thus hold that Waymire’s negligence claim based
upon the speed of the train is superseded by FRSA
and the regulations promulgated thereunder. The
judgment of the District Court is affirmed in
this regard.


      B.   Inadequate Warning Devices

      We find that similar reasoning causes us to
reject Waymire’s FELA claim that N&W negligently
failed to install additional warning devices at
its crossing. The Secretary of Transportation has
addressed crossing safety through a series of
regulations and, for projects using federal
funds, mandates that crossings involving multiple
tracks, high speed trains operating in areas of
limited visibility, or having heavy vehicle or
train traffic employ automatic gates with
flashing signals. 23 C.F.R. sec.646.214(b)(3). A
"diagnostic team" made up of representatives of
the interested parties can also recommend
automatic gates and flashing signals be
installed. Id. See also 23 C.F.R. sec.646.204(g).
For crossings not meeting these conditions, the
Secretary of Transportation requires that the
type of warning device be approved by the Federal
Highway Administration ("FHWA").

      The Easterwood court found that these
regulations cover the subject matter of warning
devices at grade crossings and displace state
law. 507 U.S. at 670-71. We agreed in Thiele v.
Norfolk & Western Railway Company and held that
sec.sec.646.214(b)(3) and (4) preempt state law
adequacy of warning claims when federal funds are
used to install the warning devices and when
those devices are installed and fully
functioning. 68 F.3d 179, 184-85 (7th Cir. 1995).

      Here, the parties do not dispute that the
crossing’s warning devices were federally funded
and approved by the FHWA and that they were
functioning at the time of the collision. If this
were a challenge under state law, then, Waymire’s
argument would be settled as a matter of law. To
allow a plaintiff to argue adequacy of warning
claims under FELA but not under state law would
undermine the railroad safety uniformity intended
by Congress and we decline to do this. We hold
that FRSA supersedes Waymire’s FELA action
insofar as it alleges inadequate warning devices,
as long as the devices were federally funded,
operating, installed and approved in accordance
with the regulations promulgated by the Secretary
of Transportation under FRSA.

      The Supreme Court recently reaffirmed that
"[s]ections 646.214(b)(3) and (4) . . . establish
a standard of adequacy that ’determine[s] the
devices to be installed’ when federal funds
participate in the crossing improvement project."
Norfolk Southern Railway Company v. Shanklin, ___
U.S. ___, ___ 120 S.Ct. 1467, 1474, 146 L.Ed.2d
374 (2000), quoting Easterwood, 507 U.S. at 671.
In Shanklin, the crossing had a reflectorized
sign but no gates or flashing lights. The widowed
plaintiff argued that the sign, alone, was an
inadequate warning device under Tennessee law.
The Court found the claim preempted: "Once the
FHWA approved the project and the signs were
installed using federal funds, the federal
standard for adequacy displaced Tennessee
statutory and common law addressing the same
subject, thereby pre-empting respondent’s claim."
Id. at 1476.
      Relying on Shanklin, we conclude that the
requirements in sections 646.214(b)(3) and (4)
establish a standard of adequacy and determine
the type of warning devices that must be
installed at a federally funded crossing
improvement project. Given that the federal
agency empowered by Congress to establish
uniform, comprehensive federal safety standards
related to warning devices at grade crossings has
promulgated such regulations, federal common law
and statutes on these issues are necessarily
displaced. Therefore, Waymire’s FELA claim
asserting inadequate warning devices at the
crossing is superseded by FRSA and its
regulations. The judgment of the District Court
in this regard is affirmed.

III.   CONCLUSION

      To treat cases brought under federal law
differently from cases brought under state law
would defeat FRSA’s goal of uniformity. It would
deny recovery to the motorist struck by the
train, but not to the engineer operating the
train. We do not believe that is the result
envisioned by the statute or by the Supreme
Court’s decisions. To the extent that FELA, then,
is inconsistent with FRSA on the issues of train
speed and warning devices at grade crossings, we
hold that FRSA supersedes FELA. Because N&W
complied with FRSA and its regulations, we find
that summary judgment was properly granted and
affirm the decision of the District Court.

AFFIRMED.


/1 Waymire also sued the truck driver and the truck
driver’s employer, but those claims were settled
and are not part of this appeal.

/2 These suits are filed by the injured private
citizen, not the injured railroad employee.
