Tardy v. Norfolk S. Corp. , 103 Ohio App. 3d 372 ( 1995 )

I respectfully dissent. I agree with the majority opinion's treatment of the other assignments of error, but I would sustain appellant's fifth assignment of error and would remand this case for trial.

The trial court refused to consider the affidavit of plaintiff's expert witness, and therefore found that there was nothing in the record to demonstrate a genuine issue of law. Inasmuch as these evidentiary materials should have been considered, the trial court erred.

There is, in the record, sufficient evidentiary material which, when construed most favorably toward the plaintiff, creates a genuine issue of material fact.

The trial court held that the crossing was clearly marked, that the hazard was obvious and that Tardy was the sole cause of the accident. For example, the court held that "* * * an approaching motorist, using ordinary care, could see and hear an approaching train and stop and yield the right-of-way." The majority opinion makes this same determination, and I frankly concede that this seems to be a very reasonable determination of what happened.

But while this is not an unreasonable determination, it is not the only determination which could be derived from the evidentiary materials filed in support and in opposition to the motion for summary judgment. Indeed, the very essence of plaintiff's claim is that although the crossing looks safe, it is deceptively dangerous. Plaintiff's expert testified that because the sight lines were not good, a driver approaching the crossing might not be able to observe the train's approach within time. If this is true, and under summary judgment standards it must be presumed so, a question of fact is created.

This court and the trial court have looked at photographs and determined that Tardy had a clear, unobstructed line of sight to the approaching train. This is, I believe a mistake, and perhaps the very same mistake that cost Tardy his life.

The testimony of the expert witness about the deceptive sight lines is not the only evidence on that question. The engineer, Kimberlain, testified that he could see peripherally and that he was looking down the track just before the accident, but that he did not see Tardy's car approach. He said: "The first I saw it, right there, right on the track." A reasonable inference is that if the engineer could not see the car approach, the driver could not see the oncoming train either.

I recognize that plaintiff's expert's version is not the only version of events which might be derived, but it does create a reasonable question of fact based on competing inferences. Where there are competing reasonable inferences, summary judgment is not appropriate. Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 60 O.O.2d 171, 286 N.E.2d 324. If the expert opinion testimony is considered in this case, reasonable minds could differ about what was the real cause of this accident and summary judgment is not proper.

That being the case, the grant of summary judgment was improper and I must dissent.