1

IN THE SUPREME COURT OF IOWA

RICHARD J. WERMERSKIRCHEN

and CAROL M.

WERMERSKIRCHEN,

Plaintiffs-Appellants,

And Concerning

CHICAGO, CENTRAL & PACIFIC

RAILROAD, TIMOTHY DORSEY,

and JOSHUA YOKEM,

Defendants-Appellees

Supreme Court No. 18-2039

Black Hawk County Case No.

LACV126365

APPEAL FROM THE DISTRICT COURT FOR BLACK HAWK COUNTY

THE HONORABLE LINDA M. FANGMAN

______________________________________________________________

RESISTANCE TO APPELLEES’ APPLICATION FOR FURTHER

REVIEW OF THE DECISION OF THE IOWA COURT OF APPEALS

DATED FEBRUARY 19, 2020

___________________________________________________________

Jordan M. Talsma AT0012799

for BEECHER, FIELD, WALKER,

MORRIS, HOFFMAN & JOHNSON, P.C.

620 Lafayette Street, Suite 300

P.O. Box 178

Waterloo, IA 50704-0178

Ph: (319) 234-1766

Fax: (319) 234-1225

E-mail: jtalsma@beecherlaw.com

ATTORNEYS FOR PLAINTIFFS-

APPELLANTS

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ARGUMENT

Chicago, Central & Pacific Railroad (d/b/a CN), Timothy Dorsey, and

Joshua Yokem (together, “Defendants”) request further review of the

decision of the Court of Appeals in this case. The Court of Appeals reversed

the district court’s grant of summary judgment to Defendants on Plaintiffs’

negligence claims based on the train crew’s failure to maintain a proper

lookout and failure to stop or slow the train involved in the collision (the

“CN Train”) which severely injured Richard Wermerskirchen.

Defendants exaggerate the breadth of the decision of the Court of

Appeals so as to bolster their argument that it involves an issue of “broad

public importance.” First, the Court of Appeals’ holding clarifies what

numerous other state and federal courts have already determined, that is,

negligence claims based on a train crew’s failure to maintain a proper

lookout or failure to stop or slow a train to avoid a “specific, individual

hazard” are not preempted by the Federal Railroad Safety Act of 1970

(“FRSA”). It also stands for the narrow proposition that the severe fog which

limited visibility on the date of the collision heightened the train crew’s

obligation to maintain a proper lookout. This finding is consistent with Iowa

case law, and it does not conflict with any federal case law on the subject.

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The Court of Appeals never reached the issue of whether or not the severe

fog, by itself, constituted a “specific, individual hazard,” and the Court need

not reach this issue now. Permitting the decision of the Court of Appeals to

stand, thereby permitting the remand to go forward, could very well render

this issue moot. The parade of horribles presented by Defendants in their

Application for Further Review is wholly without justification.

(Defendants’ Application for Further Review (“Def. App.”) p. 18).

Defendants also claim that the decision of the Court of Appeals

conflicts with “well-established Iowa law holding that speculation is

insufficient to generate a fact issue to avoid summary judgment on causation

grounds.” (Def. App. p. 2). This is false. The decision does nothing to

undermine the common law principle that “speculation is insufficient to

generate a fact issue.” Rather, Defendants simply disagree with the Court of

Appeals that the evidence in this particular case is sufficient to generate a

fact question on causation. The Court’s holding on this issue does not come

close to meeting any of the criteria set forth in I.C.A. Rule 6.1103(1)(b).

Hence, Defendants’ Application for Further Review should be denied.

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I. THE COURT OF APPEALS DID NOT DETERMINE THAT

THE FOG EXISTING ON THE DATE OF THE COLLISION

CONSTITUTED A “SPECIFIC, INDIVIDUAL HAZARD.”

After providing an overview of federal preemption and the rail

industry, Defendants argue this case warrants further review because the

severe fog existing on the date of the collision did not require the train crew

to reduce its speed prior to Mr. Wermerskirchen’s road grader becoming

visible. (Def. App. p. 11-14). But the Court of Appeals never determined

that the fog, by itself, constituted a “specific, individual hazard” requiring

the train crew to reduce its speed per the decision in Bakhuyzen v. Nat’l Rail

Passenger Corp., 20 F.Supp.2d 1113 (W.D. Mich. 1996). (Dec. Ct. App. p.

14: “[W]e don’t decide the dense fog, standing alone, was a “specific

individual hazard as that phrase was used in Easterwood. . .”). Because the

Court of Appeals never reached this issue, there is no decision for this Court

to review. Nor do the Court’s statements regarding Grade v. BNSF Ry. Co.,

676 F.3d 680 (8th Cir. 2012) form a legitimate basis for further review.

(Dec. Ct. App. p. 12). The Court of Appeals is correct that “[b]ecause the

Eighth Circuit did not probe the meaning of the Easterwood footnote, its

decision provides little guidance on the preemption exception urged by

Wermerskirchen.” (Dec. Ct. App. p. 12). Significantly, it also notes in its

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decision that counsel for Defendants admitted at oral argument that Grade

was not controlling precedent in this case.

The decision of the Court of Appeals in this case was based on a much

narrower principle, i.e., that the limited visibility on the date of the collision

was relevant in deciding whether the crew maintained a proper lookout. The

court noted, correctly, that “[r]egardless of the train’s speed, the crew was

obliged to be aware of any upcoming obstacles” and that “maintaining a

proper lookout on the tracks ahead remained a continuous obligation while

the train was moving.” (Dec. Ct. App. p. 14)(Emphasis added). This is

consistent with Iowa law, and notwithstanding the federal government’s

interest in minimizing burdens to interstate commerce, Defendants have

cited no contrary federal authority. (Dec. Ct. App. pp. 13-14). Hence, further

review of this holding is also unwarranted. For these reasons, the Court need

not consider Defendants’ arguments regarding Bakhuyzen or the other cases

dealing with weather conditions, which are cited in Defendant’s Application.

In the event the Court determines to consider these cases, Defendants’

arguments require a response. The Bakhuyzen decision has not been “widely

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criticized” as Defendants claim.1 On the contrary, courts that have ruled

contrary to Bakhuyzen, i.e., that the particular weather condition at issue did

not constitute a “specific, individual hazard,” have been careful to

distinguish Bakhuyzen, rather than dismiss its holding. In Seyler v.

Burlington Northern Santa Fe Corporation, 102 F.Supp.2d 1226 (D. Kansas

2000), the court held that plaintiff’s claim that the railroad was negligent in

failing to slow or stop the train because of flash flood warnings was

preempted. However, the court specifically distinguished Bakhuyzen on the

grounds that the plaintiff did not present evidence of impaired visibility.

Seyler, 102 F.Supp.2d at 1237; Also see Hughs v. Union Pacific Railroad

Company, 2017 WL 1380480 *9 (W.D. Mo. 2017)(Court found that,

contrary to the situation in Bakhuyzen, the evidence showed that snow was

not impairing visibility at the time of the collision).

In Cox v. Norfolk and Western Railway Company, 998 F.Supp. 679

(S.D. WVa. 1998), a case upon which Defendants rely heavily, the court

determined that the particular weather condition existing at the time of the

1 The only case concerning limited visibility in which the court criticizes

Bakhuyzen is Kankakee, Beaverwille & Southern R. Co., McLane Co., Inc.,

2010 WL 3672228 *4 (N.D. Ind. 2010). The court in Kankakee chose

instead to rely on the decision in another case cited by Defendants, Williams

v. Alabama Great S. R. R. Co., 1994 WL 419863 (E.D. La. 1994), which

was decided before Bakhuyzen.

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collision, i.e., snow covering the surface of the crossing, did not qualify as a

“specific, individual hazard.” It made the point of emphasizing, however,

that “it was not snowing at the time of the collision, was not foggy, and that

there was good visibility,” the implication being that the outcome in Cox

might well have been different had the conditions been comparable to those

in Bakhuyzen and those existing at the time of the collision in the present

case. Cox, 998 F.Supp. at 5. To the extent the cases cited by Defendants

involve weather conditions not resulting in limited visibility, they are

inapposite. See Seyler, Hughs, Cox, Stuckey v. Ill. Cent. R.R., 1998 WL

97270 (N.D. Miss 1998).

It is essential to keep in mind that one of the purposes behind

preemption is to make laws and regulations related to railroad safety and

security “nationally uniform to the extent practicable.” 49 U.S.C.A.

§20106(a). Courts that have found plaintiffs’ claims based on the conditions

at a particular crossing to be preempted have reasoned that a contrary

finding would defeat this purpose. For example, in Cox, the court held that

the presence of snow covering the crossing did not save the plaintiff’s claim

from preemption because this same condition “often exists during winter

months across West Virginia and most of the country.” Cox, 998 F.Supp. at

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686. The same cannot be said about the particular weather condition existing

at the time of the collision in the present case, as fog so thick that a train

crew cannot determine its location, as was the case for Mr. Dorsey and Mr.

Yokem, is clearly the exception, not the rule. (App. Vol. II p. 190). This is

true regardless of the season, location, or time of day. For this reason, a

finding that the particular weather condition existing in Black Hawk County,

Iowa on January 28, 2013 constituted a “specific, individual hazard” would

require very few trains entering railroad crossings to reduce their speeds. In

other words, such a finding would not undermine the purpose behind federal

preemption.

Moreover, any safety issues which could potentially result from

trains’ failure to maintain a constant speed cannot be viewed in isolation.

When considering whether a policy promotes railroad safety and reduces the

number of collisions, the stated purpose of the FRSA, the Court must also

consider the safety risks associated with a train crew’s decision to maintain

train speed during periods of severely limited visibility. Severe fog has long

been a concern in the railroad industry, and its presence at the time of

railroad collision has sparked investigations by the National Transportation

Safety Board (“NTSB”). The NTSB is an independent agency of the federal

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government charged by Congress with investigating transportation collision,

determining their probable cause, and making recommendations to prevent

similar collision from occurring in the future. On June 12, 2001, the NTSB

made several safety recommendations following its investigation of a 1999

railroad collision in Bryan, Ohio, which occurred in dense fog. The railroad

collision report states, “[a]s a risk management measure, all railroad

operating crews should be reminded about the dangers and potential

consequences of operating at speeds that are not appropriate for weather

conditions, particularly dense fog.” (App. v. II p. 160)(Emphasis added).

The NTSB made a safety recommendation to all Class I railroads directing

them to take action to ensure that their train crews “consistently follow

uniform operating procedures when they encounter reduced visibility

conditions en route.” (App. v. II p. 162). It also made the following safety

recommendation to the Association of American Railroads (“AAR”):

Advise your member railroads of the findings of the National

Transportation Safety Board’s investigation of the January 17, 1999,

railroad accident in Bryan, Ohio, and alert them to the hazards of

operating at or near maximum authorized speed during periods of

reduced visibility. (App. Vol. II p. 149).

Canadian National Railroad (a/k/a CN Railway), CCP’s parent company, is

a member of the AAR. (App. v. II p. 73).

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It is telling that the very agency charged with investigating railroad

collisions and making safety recommendations thought it necessary to alert

all Class I railroads and members of the AAR to the danger of operating at

or near maximum speed in cases of reduced visibility. This strongly suggests

that the federal government does not believe the FRSA, by itself, adequately

addresses the issue. Moreover, the fact that the CN Operating Rules state,

“[s]peeds indicated are maximum speeds between locations named, but do

not modify any rule or instruction that may require a lower speed. . .”

indicates it too recognized this reality. (App. Vol. II p. 163). This is yet

another reason why the reasoning in Bakhuyzen is persuasive.

Relying on selected statements addressing weather conditions

generally, Defendants proceed on the assumption that there is a consensus

that severe fog does not constitute a “specific, individual hazard” and cannot

be considered in actions based on the train crew’s failure to slow a train

maintain a proper look out. A careful review of the federal law belies this

assumption, and the 2001 NTSB Railroad Accident Report and CN’s own

rules reveal just the opposite, i.e. that train crews are required to take the

presence of dense fog into consideration in determining speed. Notably,

Defendants have not backed up their arguments about the burdens on

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interstate commerce with any evidence. However, even assuming such

evidence exists, Defendants are wrong to assume that these burdens

outweigh the safety risks incurred when trains travel at high speeds through

dense fog.

II. WHETHER OR NOT THE TRAIN CREW HAD THE DUTY

TO APPLY THE BRAKES TO AVOID MR.

WERMERSKIRCHN’S VEHICLE IS A FACT QUESTION

TO BE DETERMINED BY THE JURY.

Defendants also argue that the Court of Appeals erred in determining

that the evidence on the record presented a fact issue as to whether or not the

presence of Mr. Wermerskirchen’s road grader at the crossing constituted a

“specific, individual hazard” requiring the train crew to apply the brake.

(Def. App. pp. 14-18). They cite the case of Hoyt v. Chicago, Rock Island

and Pacific R.R. Co., 206 N.W.2d 115, 119 (Iowa 1973) for the proposition

that “a train crew has no duty to apply the brakes until the crew realizes the

plaintiff’s car is not going to stop for the train” and claim the decision of the

Court of Appeals conflicts with this holding. But the Court of Appeals does

not establish a principle that conflicts with the principle applied in Hoyt.

Rather, it applies the same principle in the context of the record in this

particular case, but reaches a different conclusion, i.e., that the record

presents a fact issue on Plaintiffs’ claim that the train crew failed to maintain

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a proper lookout. Hence, there is no conflict within the Iowa case law for the

Court to resolve on further review.

Defendants also claim that “an unwavering approach” is not a viable

legal theory for defeating federal speed preemption.” (Def. App. pp. 14-15).

Their use of the term “federal speed preemption” is curious. The court of

appeals does not address “federal speed preemption” generally, but whether

or not the presence of Mr. Wermerskirchen’s road grader at the crossing

constituted a “specific, individual hazard.” The case law is clear that “an

unwavering approach by a vehicle at a railroad crossing, where the engineers

knew or should have known that a collision was imminent, is a specific,

identifiable hazard” and that “[s]uch a hazard requires the train’s crew either

to slow the train or stop, in additional to any other preventive measures it

can take, to avoid the collision.” Alcorn v. Union Pacific Railroad Company,

50 S.W.3d 226, 242 (Mo. 2001), overruled on other grounds by Badahman

v. Catering St. Louis, et al., 395 S.W.3d 29 (Mo. 2013). The Missouri

Supreme Court made it clear in Alcorn that “[s]uch a situation is not

encompassed in or accounted for in federal regulations governing maximum

operation train speed.” Id. at 242.

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While not every single vehicle approaching a railroad crossing will

satisfy the “specific, individual hazard” exception to preemption, it is not

true that all such vehicles will fall outside the scope of this exception

because “cars approaching railroad crossings is an everyday occurrence,” as

Defendants would have the Court believe. (Def. App. p. 15). The cases on

this issue, including those cited by Defendants, make it clear that the

question of whether or not a vehicle approaching a railroad crossing

constitutes a “specific, individual hazard” is dependent upon the specific

facts and circumstances of each particular case. Defendants misstate the

holding in Beal v. National Railroad Passenger Corporation, 2006 WL

2095239 (N.D. Indiana. 2006), claiming that the court determined that “an

engineer’s duty to brake does not arise until after a car actually drives onto

the railroad tracks.” (Def. App. p. 16). The court in Beal cites several cases

dealing with the “specific, individual hazard” exception, one of which forms

the basis for its statement that “the duty to brake may not arise until a car

actually drives onto the railroad tracks.” Beal, 2006 WL 2095239 at *4

(Emphasis added). But the court goes on to state, “[h]owever, the duty may

also arise when the movement of a vehicle alerts or should have alerted a

train operator that something is wrong.” Id. (Citations omitted). Ultimately,

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the court in Beal concluded that the facts of the case were “too much in

dispute to be amenable to summary judgment.” Id.

Defendants’ argument that the Court of Appeals’ reversal of the

district court’s order granting summary judgment conflicts with its decision

to uphold Jury Instruction No. 30 contains the same flaw as its arguments

regarding lookout and the “specific, individual hazard” exception. Each of

Defendants’ arguments assumes what it attempts to prove, that is, that the

train crew did not and could not have known that Mr. Wermerskirchen’s

road grader was not going to stop prior to the collision. Whether the

movement of Mr. Wermerskirchen’s road grader alerted or should have

alerted the train crew that something was wrong, and whether they had the

duty to apply the brake on the CN Train, rather than throw themselves on the

floor of its cab, is the very question the jury will need to determine on

remand.2 Plaintiffs were prohibited from presenting any evidence and

2 Contrary to Defendants’ assertion, the Court of Appeals did not make a

determination that Mr. Wermerskirchen’s road grader constituted a

“specific, individual hazard.” It merely determined that the record was

sufficient to generate a fact question on this issue. (Dec. Ct. App. pp. 17-18)

This is another way in which Defendants exaggerate the breadth of the

court’s ruling for the purpose of arguing that it burdens interstate commerce.

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making any argument on this issue at trial.3 On the other hand, Defendants

were permitted to offer footage from the CN Event Recorder on a frame by

frame basis, for purposes of demonstrating what Mr. Wermerskirchen should

have been able to see, despite the fact that he was viewing the scene from a

completely different vantage point. (Supp. App. pp. 6-7).

III. THE COURT OF APPEALS DID NOT RENDER A

JUDGMENT ON CAUSATION THAT CONFLICTS WITH

IOWA LAW.

The Court of Appeals based its decision to reverse the district court’s

grant of summary judgment, in part, on its determination that the record

presented a genuine issue of fact as to whether or not Defendants’ conduct

was a cause-in-fact of any damages in this case. That Defendants disagree

with the Court of Appeals’ assessment of the evidence does not constitute a

legitimate basis for further review of the court’s decision. If it did, then

every case in which the Court of Appeals reverses a district court decision

granting summary judgment would warrant further review. There is nothing

in the text of I.C.A. Rule 6.1103(1)(b) which suggests this is the case. For

3 Defendants seem to believe this issue should be decided by the Court, as a

matter of law, on further review. (Def. App. p. 20). The Court should decline

Defendants’ request both because this issue does not meet the criteria for

further review and because the jury should be permitted to view the event

recorder footage, listen to all of the testimony, and make this determination

for itself.

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this reason, Plaintiffs submit the Court should not even consider Defendants’

arguments on causation.

Should the Court disagree, it must be emphasized at the outset that the

present case is different than the vast majority of cases involving train

collisions. This is because the victim of the collision, Mr. Wermerskirchen,

lived to tell his side of the story in great detail. Hence, this is not a case in

which Plaintiffs can only speculate as to what the motorist “could have” or

“might have” done to avoid a collision or lessen the resulting damages. On

the contrary, the record in this particular case contains first-hand testimony

from Mr. Wermerskirchen as to what he perceived on the part of the train

crew, the actions he took regarding the movement of his own vehicle, and

the connection between the two. Mr. Wermerskirchen has never contended

that he would have been able to perceive a one-mile per hour difference in

the speed of the CN Train. The degree to which the speed of a train would

have to be reduced in order to be perceptible to an observer was never

explored. Rather, Mr. Wermerskirchen testified that he did not observe any

conduct or movement on the part of the train crew which indicated that they

had seen him and were taking action to avoid hitting him, and that this was

the reason he did not attempt to avoid the collision by accelerating the road

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grader forward. (App. Vol. II pp. 185-186, 195). Now that the Court of

Appeals has ruled that Plaintiffs’ claims based on failure to maintain a

proper lookout and failure to slow or stop the train to avoid the collision are

not preempted, a jury should be able to consider Mr. Wermerskirchen’s

testimony with respect to causation.

Defendants make much of the fact that experts for Plaintiffs and

Defendants agreed that the train crew could not have avoided the collision

no matter what kind of lookout they kept. What Defendants have

consistently failed to acknowledge is that neither expert made calculations

based on the speed of two intersecting vehicles, each of which is able to alter

its speed and braking decisions based on its perceptions of the other. This

principle is important in the present case, for Mr. Wermerskirchen

considered accelerating his road grader to attempt to clear the crossing, but

determined not to do so based on his observations of the other vehicle, i.e.

the CN Train. (App. v. II p. 58). If the CN Train had slowed down, its

reduced speed would have provided Rick with additional time to clear the

crossing. Whether or not the combination of action by Mr. Wermerskirchen

and action by the train crew would have resulted in the collision being

avoided entirely or in lessening the force of the impact so as to reduce

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damages are fact questions the jury should be permitted to decide. As both

experts gave their opinions before Plaintiffs obtained Mr. Wermerskirchen’s

affidavit, it cannot be said that they took these issues into consideration.

The Nebraska Supreme Court addressed this very issue in Dresser v.

Union Pacific Railroad Company, 809 N.W.2d 713 (Neb. 2011). The court

determined, as a matter of law, that the train crew could not have stopped the

train before it reached the crossing even if it had activated the emergency

brake the instant the plaintiff’s vehicle left the stop sign. Id. at 721.

However, the court found a genuine issue of material fact existed as to

whether or not the crew’s failure to slow the train was a proximate cause of

the collision, because the record contained evidence that the driver was

attempting to back off the tracks when the collision occurred. Id. The court

determined that, had the train slowed down, the driver might have been able

to move off the tracks in time to avoid the collision. The same principle

applies in the present case. Defendants claim the Court of Appeals was

wrong to rely on Dresser because “[t]he evidence missing from the Dresser

record, the impact of application of the brakes, is present in this case. . .”

(Def. Mem. fn. 7). Only the Defendant’s expert, Foster Peterson, performed

mathematical calculations based on speed and braking distance. His report,

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however, does not render Dresser unpersuasive, because Mr. Peterson’s

calculations did not take into account the very evidence the Dresser court

determined to be material, i.e. the actions taken by the motorist in the period

leading up to the collision.

The Court has the obligation to “indulge in every legitimate inference

that the evidence will bear in an effort to ascertain the existence of a fact

question.” Smith v. Shagnasty’s Inc., 688 N.W.2d 67, 71 (Iowa 2004). “An

inference is legitimate if it is ‘rational, reasonable, and otherwise permissible

under the governing substantive law.’” Lewis v. State ex rel. Miller, 646

N.W.2d 121, 124 (Iowa Ct. App. 2002). When these standards are applied to

the present case, Mr. Wermerskirchen’s testimony regarding his actions

immediately prior to the collision is sufficient to generate a fact issue on

causation, even if the Court assumes the accuracy of Mr. Peterson’s

calculations. However, not even a finding that the evidence in the record, as

it currently stands, fails to generate a genuine issue of material fact, would

justify reversing the decision of the Court of Appeals. From the beginning of

this case, Plaintiffs have questioned the methods used by Mr. Peterson in

calculating the braking distance of the CN Train. (Dec. Ct. App. p. 19).

Now that the Court of Appeals has ruled that Plaintiffs’ claims based on

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lookout and failure to stop or slow the train to avoid the collision are not

preempted, they should have the opportunity to explore this issue further by

cross examining Foster Peterson. Plaintiffs should also have the opportunity

to retain an expert to counter Mr. Peterson’s findings, although the absence

of such an expert would not be fatal to Plaintiffs’ case. Stone v. CSX

Transportation, Inc., 37 F.Supp.2d 789 (S.D. W.Va. 1999).

IV. SHOULD THE COURT GRANT DEFENDANTS’

APPLICATION FOR FURTHER REVIEW, IT SHOULD

ALSO REVIEW THE RULING AFFIRMING THE JURY

VERDICT ON PLAINTIFFS’ HORN CLAIMS.

For the reasons stated herein, Plaintiffs believe this case does not

warrant further review. Should the Court determine to grant Defendants’

Application, Plaintiffs request that it also review the court’s ruling upholding

the jury verdict in this case. Plaintiffs are not abandoning any arguments on

appeal but will address only two arguments explicitly due to the limits of

I.C.A. Rule 6.1103(4).

A. Jury Instruction No. 25 was incomplete and misleading, as it

failed to instruct the jury that the federal horn audibility

requirements impose an ongoing obligation.

Jury Instruction No. 25 provided as follows:

“Each lead locomotive shall be equipped with a locomotive horn that

produces a minimum sound level of 96 dB(A) and a maximum sound

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level of 110dB(A) at 100 feet forward of the locomotive in its

direction of travel.”

The district court denied Plaintiffs’ request to add the phrase “at the time of

the accident” to the end of the instruction, so as to make it clear that the

federal standard of care regarding horn audibility confers an ongoing

obligation on Defendants. The Court has held that reversal is warranted

when jury instructions are “misleading and confusing.” Rivera v. Woodward

Resource Center, 865 N.W.2d 887, 902 (Iowa 2015). “[A]n instruction is

misleading or confusing if it is ‘very possible’ the jury could reasonably

have interpreted the instruction incorrectly.” Id. Because the instruction did

not make it clear that the sound level requirements were ongoing, the jury

could very well have determined that Defendants satisfied this standard of

care by virtue of the fact that a horn test performed more than two and a half

years prior to Mr. Wermerskirchen’s collision, in May of 2010, indicated

that the horn on the CN Train met sound level requirements, a point

Defendants emphasized repeatedly.

Moreover, the instruction requested by Plaintiffs “correctly states the

law.” Struve v. Payvandi, 740 N.W.2d 436, 439 (Iowa 2007). The relevant

case law leaves no doubt that Section 229.129 imposes an ongoing

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obligation to maintain the horn decibel requirements therein. The court made

the following statements in Hughs:

This finding does not affect the Court’s holding as to Plaintiffs’

claim that Defendant violated the decibel requirement of 49

C.F.R. §229.129 at the time of the collision. . . [T]he scope of

Plaintiffs’ horn claim is now limited to the claim that Defendant

was negligent by breaching its duty with respect to the horn

sounding between 96 dB(A) and 110 dB(A) in compliance with

section 229.129 at the time of the accident . . . However, the

Court realizes that certain evidence . . . may be relevant as to

the issue of whether the horn sounded between 96 dB(A) and

110 dB(A) in compliance with section 229.129 at the time of

the accident. Hughs, 2017 WL 1609646 at *fn 3 (Emphasis

added).

An examination of the subparts and the penalties applicable to

violations of 49 C.F.R. §229.129 provides additional support for Plaintiffs’

argument. Subsection (a) and subsection (b)(2) of the regulation provide as

follows:

(a) Each lead locomotive shall be equipped with a locomotive

horn that produces a minimum sound level of 96 dB(A) and a

maximum sound level of 110 dB(A) at 100 feet forward of the

locomotive in its direction of travel.

(b)(2) Each locomotive built before September 18, 2006 shall

be tested in accordance with this section before June 24, 2010

to ensure that the horn installed on such locomotive is in

compliance with paragraph (a) of this section.

49 C.F.R. §229.129(a), (b)(2). That subsection (a) imposes an ongoing,

affirmative duty is evidenced by the fact that the regulations impose separate

23

penalties for violation of these two subsections. The penalty for violation of

the sound levels prescribed in subsection (a) is $2,500, and the penalty for a

willful violation of this subsection is $5,000. These penalties are separate

and distinct from the penalties for failure to perform the sound level test

required by subsection (b) of Section 229.129. See 49 C.F.R. Appendix B to

Part 229—Schedule of Civil Penalties. If performance of the sound level test

required by 49 C.F.R. §229.129(b)(2) were the only action necessary to

satisfy the federal standard of care with respect to horn audibility, a separate

penalty for violation of subsection (a) would be superfluous. The Court

“avoid[s] statutory construction which renders a part of a statute superfluous

or redundant, and instead “presume[s] that each part of the statute has a

purpose. State v. Graves, 491 N.W.2d 780, 782 (Iowa 1992).

Second, while the regulations regarding periodic inspection and

testing do not require horn sound pressure level testing at specific intervals,

Section 229.129 clearly contemplates that additional horn tests will be

performed after the test required by 49 C.F.R. §229.129(b). Subsection

(c)(10) of 49 C.F.R §229.129 provides as follows:

“Written reports of locomotive horn testing required by this

part shall be made . . . These reports, which shall be signed by

the person who performs the test, shall be retained by the

railroad, at a location of its choice, until a subsequent

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locomotive horn test is completed and shall be made available,

upon request, to FRA as provided by 49 U.S.C. 20107.” 49

C.F.R. §229.129(c)(10 ) (Emphasis added).

If the test required by 49 C.F.R. 229.129(b)(2) were the only test the FRSA

believed to be necessary, there would have been no need to make mention of

a “subsequent locomotive horn test.”

Finally, it bears emphasizing that the “one and done” approach to horn

testing, which has been advanced by Defendants from the beginning of this

case, defies common sense. Per Defendants’ interpretation of the federal

regulations, it would not matter what sound level a horn was operating at on

any given occasion so long as the railroad had a horn test on record

demonstrating that, at one point in time, the horn on the train met the

requirements of 49 C.F.R. §229.129. This position is untenable, as it is

directly contrary to the purpose of the FRSA. Rather than promoting safety

in railroad operations and reducing railroad-related accidents, the position

advanced by Defendants would create substantial risk which would serve to

increase the number of accidents. 49 U.S.C. §20101.

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B. The district court erred by instructing the jury that the railroad

engineer had the right to assume Mr. Wermerskirchen would

observe the law without also instructing the jury that Mr.

Wermerskirchen had the right to assume the railroad engineer

would observe the law.

The following is the text of Iowa Civil Jury Instruction 600.71:

600.71 Right of Assumption. Both drivers had a right to use the

road, but each had to respect the rights of the other. Each driver could

assume the other would obey the law until they knew, or in the

exercise of ordinary care, should have known the other driver was not

going to obey the law.

Over Plaintiffs’ objection, the district court accepted a modified version of

this instruction which provided only that the railroad had the right to assume

Mr. Wermerskirchen would obey the law. The district court justified its

decision on the grounds that “it’s different when you have two motorists on

a highway who are both following the same rules versus the train who has

different rules than the vehicle” and the court of appeals upheld its decision.

(App. v. II p. 294). It is true that motorists and railroad engineers are not

subject to the exact same rules. However, as the Court of Appeals

recognized, the railroad engineer did have certain duties, namely the duty to

maintain a proper lookout. (Dec. Ct. App. pp. 13-15). Had the district court

given the instruction requested by Plaintiffs, Defendants could certainly

have argued to the jury that the railroad engineer did not have the exact same

26

obligations as Mr. Wermerskirchen. Jury Instruction No. 30 was misleading,

however, as it suggests that Mr. Wermerskirchen was the only party faced

with any legal obligation in the period leading up to the collision.

Therefore, the court of appeals should have determined the district court

erred in giving it Rivera, 865 N.W.2d at 902.

CONCLUSION

For the reasons stated herein, Plaintiffs respectfully request that the

Court deny Defendants’ Application for Further Review. Alternatively,

Plaintiffs request that the Court review the entirety of the court of appeals’

decision.

Respectfully submitted,

/s/ Jordan M. Talsma

Jordan M. Talsma AT0012799 For BEECHER, FIELD, WALKER,

MORRIS, HOFFMAN & JOHNSON, P.C.

620 Lafayette Street, Suite 300

P.O. Box 178

Waterloo, IA 50704

PHONE: 319-234-1766

FAX: 319-234-1225

E-mail: jtalsma@beecherlaw.com

ATTORNEYS FOR PLAINTIFFS-

APPELLANTS.

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ATTORNEY’S COST CERTIFICATE

I hereby certify that the cost of printing this document was the sum of

$7.50.

/s/ Jordan M. Talsma

Jordan M. Talsma

CERTIFICATE OF FILING

The undersigned hereby certifies that on the 20th day of March, 2020

this document was filed in the Iowa Supreme Court using EDMS.

/s/ Jordan M. Talsma

Jordan M. Talsma

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 20th day of March, 2020,

this document was served on the following individuals using EDMS:

R. Todd Gaffney

FINLEY LAW FIRM, P.C.

699 Walnut Street, Suite 1700

Des Moines, IA 50309

/s/ Jordan M. Talsma

Jordan M. Talsma

CERTIFICATE OF COMPLIANCE

1. This Resistance to Application for Further Review complies with the

type-volume limitation of Iowa R. App. P. 6.903(1)(g)(1) or (2) because:

[X] This Resistance to Application for Further Review contains 5,545

words, excluding the parts of the brief exempted by Iowa R. App. P.

6.903(1)(g)(1) or

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[ ] This Resistance to Application for Further Review uses a

monospaced typeface and contains [state the number of] lines of text,

excluding the parts of the brief exempted by Iowa R. App. P. 6.903(1)(g)(2).

2. This Resistance to Application for Further Review complies with the

typeface requirements of Iowa R. App. P. 6.903(1)(e) and the type-style

requirements of Iowa R. App. P. 6.903(1)(f) because:

[X] This Resistance to Application for Further Review has been

prepared in a proportionally spaced typeface using Microsoft Office Word

2007 in 14 font Times New Roman, or,

[ ] This Resistance to Application for Further Review has been

prepared in a monospaced typeface using [state name and version of word

processing program] with [state number of characters per inch and name of

type style].

/s/ Jordan M. Talsma

Jordan M. Talsma