SCOVT affirms denial of sudden emergency charge as harmless; and affirms partial summary judgment that car train collision was not caused by lack of second warning sign.

Matthew Ziniti v. New England Central Railroad, Inc., 2019 VT 9 [filed 2/8/2019]

ROBINSON, J. Plaintiff, who sued defendant railroad after he was seriously injured in a train-car collision, appeals the trial court’s partial summary judgment ruling and the ensuing jury verdict for defendant. Plaintiff argues that the trial court erred by: (1) granting defendant summary judgment precluding him from presenting evidence that defendant’s failure to place a crossbuck on the right side of the road at the site of the railroad crossing, or to take steps to ensure that an “advance warning” sign was present, caused or contributed to the collision; (2) denying a request for the jurors to view the crossing where the accident occurred; (3) denying his motion for a directed verdict on the railroad’s negligence on account of its violation of a safety statute relating to maintenance of the railroad’s right of way; and (4) denying his request for an instruction on the sudden emergency doctrine. We reject each of these arguments and, accordingly, affirm the judgment in favor of defendant.

A plaintiff alleging negligence must show “both ‘but-for’ and proximate causation.”  Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208. Even assuming the absence of an advance warning sign or NECR’s failure to place a crossbuck on the right-hand side of the road amounted to a breach of the railroad’s duty of care,5 plaintiff could not prove defendant’s liability for negligence without evidence that the collision would not have occurred had either of the signs been in place. No reasonable jury could conclude that the absence of a crossbuck sign on the right caused or contributed to the collision. We reach this conclusion because a crossbuck sign on the right would not have provided approaching motorists with any warning of the crossing beyond the warning already provided earlier by the crossbuck sign on the left, which was clearly visible to motorists exiting the covered bridge.

Because the jury did not reach the question of plaintiff’s comparative negligence, plaintiff cannot show prejudice resulting from omission of the sudden emergency instruction, even assuming that it should have been given.