                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 97-3077
                                ________________

Freda M. Bryan,                          *
                                         *
            Appellant,                   *
                                         *       Appeal from the United States
      v.                                 *       District Court for the
                                         *       Eastern District of Missouri.
Norfolk and Western Railway              *
Company, a corporation,                  *
                                         *
            Appellee.                    *
                                         *

                                ________________

                                Submitted: January 12, 1998
                                    Filed: September 10, 1998
                                ________________

Before RICHARD S. ARNOLD,1 Chief Judge, and WOLLMAN and HANSEN,
Circuit Judges.
                       ________________

HANSEN, Circuit Judge.




      1
       The Honorable Richard S. Arnold stepped down as Chief Judge of the
United States Court of Appeals for the Eighth Circuit at the close of business on
April 17, 1998. He has been succeeded by the Honorable Pasco M. Bowman, II.
      Plaintiff Freda M. Bryan appeals from the summary judgment the district court2
entered against her in this wrongful death action. We affirm.

        Early on the morning of March 18, 1993, Charles Bryan set off for work in
Jonesburg, Missouri. He stopped at the home of John Wells, a co-worker with whom
he often drove to work. On that morning, Mr. Wells did not accompany Mr. Bryan, so
at 5:45 a.m., Mr. Bryan continued on alone. He drove west down the Wells' driveway
in his truck, turned north onto Massas Creek Road, and proceeded about 200 feet onto
a grade crossing, where he was struck and killed by a westbound freight train. At the
time of the accident, the Massas crossing was protected only by reflectorized
crossbucks, the familiar X-shaped signs which read, "RAILROAD CROSSING." The
crossbucks had been installed pursuant to a state-wide plan by the Missouri Public
Service Commission to improve safety devices at all grade crossings in the state, and
federal funding had contributed to the installation.

       Bryan's wife brought this wrongful death suit in Missouri state court to recover
damages for her loss. She named as a defendant the Norfolk and Western Railway
Company (the N&W), which operated the train and owned the tracks at the grade
crossing where Mr. Bryan died. The N&W properly removed the action to the district
court for the Eastern District of Missouri on the basis of diversity jurisdiction, see 28
U.S.C. §§ 1332, 1441, and cross-claimed against the city and county in which the
crossing was located, as well as the Missouri Highway Commission, to whose
dismissal all parties later stipulated. The N&W then moved for summary judgment,
which the district court granted. The city and county were dismissed upon the grant of
summary judgment.




      2
       The Honorable Lawrence O. Davis, United States Magistrate Judge for the
Eastern District of Missouri, hearing the case by consent of the parties pursuant to
18 U.S.C. § 636(c) (1994).
                                           2
       On appeal, Mrs. Bryan contends that the district court erred by granting summary
judgment. First, she claims a fact issue exists over whether the N&W's engine crew
failed to warn of the train's approach to the Massas crossing; second, that there is an
issue of fact concerning whether the crew failed to keep a proper lookout as they
approached the crossing; and finally, that her claim that the N&W failed to maintain the
grade crossing adequately is not preempted by federal or state law. We review the
district court's grant of summary judgment by the well-known de novo standard,
"viewing the evidence in the light most favorable to [the non-moving party], and . . .
affirm[ing] only if we agree there are no genuine issues of material fact and that the
[moving party] is entitled to judgment as a matter of law." United States v. Dico, Inc.,
136 F.3d 572, 578 (8th Cir. 1998); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Sitting in diversity, we apply the substantive law of the applicable state, in this
case, Missouri. See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Finally, we review
de novo a district court's determination of state law, see Salve Regina College v.
Russell, 499 U.S. 225, 231 (1991).

                                    I. Failure to Warn

        The N&W's common-law duty to warn of a train's approach to a grade crossing
has been codified in Missouri. A bell, horn, or whistle shall "be sounded at least eighty
rods [one quarter mile] from the place where the railroad shall cross any such road or
street . . . and be sounded at intervals until it shall have crossed such road or street."
Mo. Rev. Stat. § 389.990 (1994). Should the railroad fail to fulfill this duty, and should
that failure result in injury, the railroad is liable for the injury. Id. Mrs. Bryan asserts
that the N&W did not signal the approach of its freight train, and that this failure
caused her husband's death. To make a sufficient offer of proof in response to a motion
for summary judgment, she must elicit admissible evidence that no warning sounded.
Missouri law carefully describes what type of evidence is admissible.




                                             3
       [N]egative evidence, such as "I did not hear," is positive and of
       substantial probative force or value in a situation where it is reasonably
       certain the witness could and would have heard, that is, where "it is
       shown that a witness was in close proximity to the track, in a position to
       have heard the whistle (or bell) if it was sounded, and was attentive to
       whether the whistle was in fact sounded."

Chamberlain v. Thompson, 256 S.W.2d 779, 781-82 (Mo. 1953) (quoting Knorp v.
Thompson, 212 S.W.2d 584, 588 (Mo. 1948) (en banc)).

        In opposition to the N&W's summary judgment motion, Mrs. Bryan submitted
affidavits of John and Elaine Wells, the couple whose house her husband had visited
shortly before the accident. In response, the N&W deposed the Wells, and additionally
introduced depositions from the train crew. Elaine Wells' affidavit stated that she did
not hear any whistle on the morning of March 18, 1993; John Wells' affidavit stated
that he heard a whistle only "when the train was adjacent to [his] house." (J.A at 184.)
However, the deposition testimony of both witnesses revealed more. Mrs. Wells
testified that she was in the kitchen of her house, in the corner farthest from the tracks,
and heard no sounds of a train at all until her husband opened the front door, at which
time she heard a train. She also testified that, living in such close proximity to the
tracks, she had become accustomed to hearing trains, and that, on the fateful morning,
she had no particular reason to be attentive to the sounds of trains near the house. Mr.
Wells testified in his deposition that he first heard the train whistle when it was near the
house, but that he couldn't say how near, nor did he look outside to see the train, nor
was he sure whether the train had come even with the house or whistled at some
unknown distance east. Contrarily, the train crew described in detail the route they
traveled. They crossed three roads in short order, the third of which was Massas Creek
Road where Mr. Bryan died. They testified that they began sounding the whistle in
advance of the first crossing and continued to sound it until the accident at Massas
Creek Road. The total distance from where the whistle first sounded to the Massas
Crossing was 3,856 feet--well over the required quarter mile.

                                             4
       In reviewing whether a grant of summary judgment was appropriate -- whether
any genuine issue of material fact existed regarding the N&W's alleged failure to warn
of the approach of their train -- we do not weigh the evidence or attempt to determine
witness credibility. See Cody v. Cigna Healthcare of St. Louis, Inc., 139 F.3d 595, 598
(8th Cir. 1998). Nonetheless, Missouri law clearly precludes admission of the Wells'
"negative evidence," which purports to show that no whistle warned of the impending
approach of the train. See Chamberlain, 256 S.W.2d at 781-82; Knorp, 212 S.W.2d
at 588. We do not engage in a credibility determination when we acknowledge, as did
the district court, that there is no showing that either witness was actually attentive to
whether a train whistle blew, and that it is unclear whether Mrs. Wells was in a position
to hear a whistle if it in fact blew. Since Missouri law requires us to disregard the
Wells' testimony, there exists no dispute regarding the train's warning on the record
before us, and summary judgment on Mrs. Bryan's failure to warn claim was
appropriate. The evidence is insufficient as a matter of law to generate a factual
question of whether or not the whistle was sounded.

                             II. Failure to Keep a Lookout

       Mrs. Bryan argues next that she demonstrated that a genuine issue of material
fact exists on the question of whether the N&W failed to keep a proper lookout as the
train approached the Massas crossing. To survive summary judgment on this claim, she
must create a genuine question of fact on whether the crew stayed properly attentive
to vehicular traffic, and also on whether, had they kept their lookout, the accident
would have occurred. See Bartlett v. Kansas City S. Ry., 854 S.W.2d 396, 400 (Mo.
1993) (en banc). As the district court noted, Missouri law did not require the train
crew to brake as soon as they saw Mr. Bryan, but only when he entered the "zone of
danger," that point where an accident would certainly occur. See, e.g., Bunch v.
Missouri Pac. R.R., 386 S.W.2d 40 (Mo. 1965) (no duty to stop the train simply
because a vehicle slowly approaches the crossing); Bulkley v. Thompson, 211 S.W.2d
83 (Mo. Ct. App. 1948) (no duty on train until traveler enters danger zone). Mr. Bryan

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passed the "point of no return" at 10 miles per hour roughly 2 seconds before the train
arrived. At 50 miles per hour, the 47-car train could not possibly have stopped in so
short a time. So, even if Mrs. Bryan could show that the crew was not looking, she has
not created a question of fact demonstrating that such a failure caused the accident.
Once Mr. Bryan entered the zone of danger, no further action by the train crew could
have altered the chain of events rapidly enough to prevent the collision. Since Mrs.
Bryan could not prove causation, the district court correctly granted summary judgment
on this claim.

                         III. Failure to Maintain the Crossing

      Mrs. Bryan's final theory of negligence is that the N&W failed to properly
maintain the grade crossing at Massas Creek Road. The district court granted the
N&W's motion for summary judgment on the grounds that any common-law negligence
claims for failure to maintain the crossing were preempted by both federal and state
law. Mrs. Bryan appeals that determination.

       The N&W acknowledges that it had a duty at common law to maintain adequate
protections at all its grade crossings. It asserts, however, that regulations promulgated
pursuant to the Federal Railroad Safety Act of 1970 preempt any claim against it. See
49 U.S.C. § 20106 (1994) and 23 C.F.R. § 646.214(b)(3) and (4) (1998). This federal
regulation "cover[s] the same subject matter as [state] negligence law pertaining to the
maintenance of . . . grade crossings," CSX Transportation, Inc. v. Easterwood, 507
U.S. 658, 664 (1993), and "[e]xamination of these regulations demonstrates that, when
they are applicable, state tort law is preempted." Id. at 670. The question, then, is
whether the regulations are applicable to the Massas crossing. If so, Mrs. Bryan's
claim is preempted.

        Federal regulations are applicable if federal funds have been expended for the
installation of the warning devices at the crossing. "Federal funding is the touchstone

                                           6
of preemption in this area." Elrod v. Burlington N. R.R., 68 F.3d 241, 244 (8th Cir.
1995). To support its motion for summary judgment, the N&W presented both a
deposition and an affidavit from its Assistant Director of Safety to show that the N&W
had been reimbursed by federal monies for its installation of crossbucks across the
state, including those in place at Massas Creek Road. It also presented the Missouri
state contract and Missouri Public Service Commission order regarding that
installation. This uncontradicted evidence demonstrates conclusively that federal funds
were expended for the crossbucks at the Massas crossing.

       Despite this showing, Mrs. Bryan argues that the federal regulations on grade
crossing safety were not followed at the Massas crossing, and therefore, the regulations
are not "applicable."3 She bases this claim on the testimony of her expert who asserted

      3
        The regulation in question, 23 C.F.R. § 646.214(b)(3) and (b)(4) reads:
(3)(i) "Adequate warning devices," under § 646.214(b)(2) or on any project where
Federal-aid funds participate in the installation of the devices are to include
automatic gates with flashing light signals when one or more of the following
conditions exist:
       (A) Multiple main line railroad tracks.
       (B) Multiple tracks at or in the vicinity of the crossing which may be
occupied by a train or locomotive so as to obscure the movement of another train
approaching the crossing.
       (C) High speed train operation combined with limited sight distance at either
single or multiple track crossings.
       (D) A combination of high speeds and moderately high volumes of highway
and railroad traffic.
       (E) Either a high volume of vehicular traffic, high number of train
movements, substantial numbers of schoolbuses or trucks carrying hazardous
materials, unusually restricted sight distance, continuing accident occurrences, or
any combination of these conditions.
       (F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates are not
appropriate, FHWA may find that the above requirements are not applicable.


                                           7
that the Massas crossing demonstrated the characteristics listed in subsections (B), (C),
and (E) of section 646.214(b)(3). Mrs. Bryan claims that since the Massas crossing
demonstrated these characteristics and no diagnostic team specifically exempted it from
the (b)(3) requirement of an automatic gate, the federal regulations are not applicable
and have not preempted her state common-law negligence action. However, a line of
cases in this circuit since Easterwood makes clear that when federal funds are
expended for grade crossing warning devices, state law negligence claims are
preempted if those devices are installed and working. Mrs. Bryan relies heavily on St.
Louis S.W. Ry. v. Malone Freight Lines, 39 F.3d 864 (8th Cir. 1994), cert. denied, 514
U.S. 1110 (1995), and Elrod, 68 F.3d 241 (8th Cir. 1995), to show that her claim is not
preempted. She misreads the law of this circuit.

        In Malone, federal funding had been earmarked for warning lights and a crossing
gate some 15 months before the accident from which the lawsuit arose. The lights had
been installed, and construction of the gates had begun. In remanding for trial on the
plaintiff's inadequate signalization claim, we held that federal preemption does not
occur when funds are designated, but only when the planned devices are installed and
operative. Malone, 39 F.3d at 867. On that basis in Elrod, we held that the plaintiff's
claims were preempted since "it is undisputed . . . that the warning devices were
installed and operating at the time of the accident." Elrod, 68 F.3d at 244. Again, we
have held that "[a]fter federally funded warning devices are installed and operating,
federal preemption occurs." Kiemele v. Soo Line R.R., 93 F.3d 472, 476 (8th Cir.
1996). In Kiemele, we held that the inadequate protection claims were not preempted,
because there was a factual issue whether the devices -- crossbucks just like the ones
before us -- had lost their reflectivity, and thus were no longer "operating." 93 F.3d at



(4) For crossings where the requirements of §646.214(b)(3) are not applicable, the
type of warning device to be installed, whether the determination is made by a State
regulatory agency, State highway agency, and/or the railroad, is subject to the
approval of FHWA.
                                           8
476. Mrs. Bryan has raised no such issue. See also Steva v. Soo Line R.R., No. 96-
4198, 1997 WL 381854 (8th Cir. 1997) (unpublished disposition) (holding that "[t]he
federal government's funding of crossing devices implicitly indicates federal regulators
have considered the devices' adequacy . . . ").

        Mrs. Bryan also relies on Shots v. CSX Transportation, Inc., 38 F.3d 304 (7th
Cir. 1994). In Shots, the court did not read Easterwood "literally," and permitted the
plaintiff to take her inadequate warning claims to the jury despite a showing that federal
funds had paid for the warning devices at the crossing in question, as Mrs. Bryan would
like to do. We have addressed this argument before. "While Shots is undeniably more
favorable to the plaintiffs, it is inconsistent with our Court's reading of Easterwood in
Malone, and we are bound by Malone." Elrod, 68 F.3d at 244. One might add that we
are also bound by Elrod and Kiemele. We continue to hold that once federal funds
have been expended towards grade crossing safety devices, and those devices are
installed and operating, state law negligence claims are preempted by federal
regulations. The district court correctly granted summary judgment in favor of the
N&W for this reason. Since we find that the district court correctly determined that
Mrs. Bryan's common law inadequate signalization claim is preempted by federal law,
we decline to address whether Missouri statutory law has abrogated it.

                                           IV.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

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


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