Hannah Jesski, as Executrix v. Dakota, Minnesota & Eastern Railroad Corporation

United States Court of Appeals
For the Eighth Circuit
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No. 21-3310
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Hannah Jesski, as Executrix and Personal Representative of the estate of
Dixie Blazier; Glenda Mundis; Robert Mundis
Plaintiffs - Appellants
v.
Dakota, Minnesota & Eastern Railroad Corporation
Defendant - Appellee
Canadian Pacific (U.S.), Inc.
Defendant
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Appeal from United States District Court
for the Northern District of Iowa
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Submitted: June 14, 2022
Filed: August 8, 2022
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
James and Dixie Blazier were killed and Glenda Mundis was injured when a
locomotive owned by Dakota, Minnesota & Eastern Railroad Corporation

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(“DM&E”) collided with their SUV at a railroad crossing. The personal
representative of Dixie Blazier’s estate along with Mundis and Mundis’s husband
(collectively, “Appellants”) sued DM&E for negligence. The district court1 granted
summary judgment in favor of DM&E. We affirm.
I. Background
James Blazier was driving his SUV northbound toward a railroad crossing in
Nora Springs, Iowa, with his wife, Dixie, in the front passenger seat and his sister-
in-law, Glenda Mundis, in a rear seat. It was a clear day with good visibility. South
of the railroad crossing was a warning sign, white pavement markings, a railroad
crossbuck sign, a white stop line, and two sets of flashing lights all visible to a driver
headed toward the tracks.
As the Blaziers’ SUV approached the crossing, DM&E’s locomotive, which
was not pulling any train cars, approached the crossing from the east at a speed of
22.1 miles per hour. An engineer (“Mr. E”) and a conductor (“Mr. C”) were
operating the locomotive. Mr. E engaged the locomotive’s warning bells and horns
twenty-seven seconds before the locomotive reached the crossing. DM&E admits
the train crew had a clear line of sight to the Blaziers’ SUV when the locomotive
was about 308 feet from the crossing and the SUV was about 735 feet from the
crossing—almost ten seconds before the collision. Mr. E estimated he first saw the
SUV about that same time. Approximately five seconds before impact, Mr. E’s view
of the Blaziers’ SUV was obstructed by the locomotive’s control stand for a few
seconds.
Mr. C estimated he first saw the Blaziers’ SUV when it was 250–300 feet
from the crossing and that he saw it swerving soon thereafter. Mr. C also testified
that he told Mr. E to stop the locomotive after he saw the SUV swerving. Mr. E
1 The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.

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engaged the emergency brakes, though the parties dispute whether he initiated the
brakes immediately before or after the collision. The Blaziers’ SUV continued
toward the crossing and the right-front side of the SUV collided with the left side of
the locomotive.
The Blaziers died from the collision, and Mundis sustained severe injuries.
After the accident, it was discovered that one headlight and one ditch light on the
locomotive were not working. DM&E suggests the lights were working before the
collision based on the crew’s testimony and inspection reports from earlier that day.
Appellants sued DM&E, alleging eighteen theories of negligence by and
through DM&E’s agents and employees under Iowa law. DM&E moved for
summary judgment, arguing Appellants’ theories of negligence were all either
meritless or preempted by federal law. The district court granted DM&E’s motion
for summary judgment, and Appellants appeal.
II. Analysis
“We review the district court’s grant of summary judgment de novo, viewing
the facts in the light most favorable to the nonmoving party.” Minnesota ex rel.
Northern Pac. Ctr., Inc. v. BNSF Ry. Co., 686 F.3d 567, 571 (8th Cir. 2012).
Summary judgment is proper when the movant shows “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A genuine dispute arises ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Zubrod v. Hoch,
907 F.3d 568, 575 (8th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
Appellants argue the district court erred in granting summary judgment to
DM&E with respect to two of Appellants’ theories of negligence: failure to keep a
proper lookout and excessive speed. We analyze each in turn.

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A. Failure to Keep a Proper Lookout
Appellants assert DM&E’s locomotive crew negligently failed to keep a
proper lookout. They argue there are genuine disputes of material fact and that a
reasonable jury could determine Mr. E and Mr. C were negligent by being inattentive
and by doing nothing to avoid the collision after seeing the Blaziers’ SUV’s
swerving and taking an “unwavering approach towards the crossing.” Appellants
further argue DM&E was negligent by failing to properly train Mr. E and Mr. C to
keep a proper lookout.
The elements of a claim of negligence in Iowa are: “(1) existence of a duty,
(2) breach of that duty, (3) causation, and (4) damages.” Vossoughi v. Polaschek,
859 N.W.2d 643, 654 n.6 (Iowa 2015). The district court held that Appellants failed
to present sufficient evidence of causation because they failed to show Mr. E and
Mr. C could have recognized the imminent danger of the Blaziers’ SUV in time to
avoid the collision even had they kept a proper lookout. We agree.
The parties agree the DM&E crew could have avoided the collision by
applying the locomotive’s brakes about 3.9 seconds before the collision when the
locomotive was about 125 feet from the crossing. Appellants argue the Blaziers’
SUV’s swerving before that time would have led a reasonable person to engage the
brakes of the locomotive to avoid the collision. However, expert testimony—
including Appellants’ expert—established a locomotive operator would require 1.5
seconds of reaction time after perceiving a danger to apply the brakes. Appellants
do not offer any evidence disputing the 1.5-second reaction time. Thus, for Mr. E
and Mr. C to avoid the collision, they needed to observe the danger the Blaziers’
SUV presented at least 5.4 seconds before the collision (3.9 seconds of brake time
plus 1.5 seconds of reaction time).
At 5.4 seconds before the collision, the Blaziers’ SUV was 404 feet away from
the intersection traveling at 52 miles per hour, and neither Mr. E nor Mr. C had seen
it swerve. At that point, the Blaziers’ SUV’s “unwavering approach” was the only

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conduct supported by evidence in the record from which Mr. E and Mr. C could have
evaluated the risk of danger posed by the Blaziers’ SUV. But based on expert
testimony, the Blaziers’ SUV could have stopped in as little as 111 feet, meaning
that at 5.4 seconds before the collision, the Blaziers’ SUV had over three times the
amount of space necessary to stop before the tracks. At that time, Mr. E and Mr. C
had the right to assume the Blaziers’ SUV would indeed stop. See Williams v. Mason
City & Fort Dodge Ry. Co., 214 N.W. 692, 695 (Iowa 1927) (“Travelers in motor
vehicles frequently and customarily drive toward an oncoming train and stop just
before going upon the tracks . . . . There is in such conduct, however, no ‘peril’ until
such wayfarer fails to stop in a zone of safety.”); Garcia v. Iowa Interstate R.R., Ltd.,
829 N.W.2d 589, 2013 WL 988635, at *6–7 (Iowa Ct. App. Mar. 13, 2013)
(unpublished table decision) (holding the plaintiff failed to show the defendant’s
engineer did not keep a proper lookout because the engineer was entitled to assume
an approaching vehicle would stop before the tracks and the engineer applied the
brakes as soon as he realized the vehicle might not stop); accord Shibley v. St. Louis–
S.F. Ry. Co., 533 F.2d 1057, 1061 (8th Cir. 1976) (noting under Arkansas law, “a
member of a train crew keeping a lookout has the right to assume that an approaching
motorist will stop instead of place [herself] in a position of peril in the path of a
moving train” (alteration in original)).
Indeed, Appellants’ own expert testified the DM&E crew should have
recognized the need to brake when the Blaziers’ SUV was within approximately
200–300 feet from the crossing. But this was too late: at 5.4 seconds before the
collision, the Blaziers’ SUV was 404 feet away from the crossing.
Appellants argue that if Mr. C had been closely watching the crossing prior to
5.4 seconds before the collision, he could have seen the danger the Blaziers’ SUV
presented and avoided the collision. But Appellants can only speculate that at that
time Mr. C would have seen the Blaziers’ SUV swerving or exhibiting other signs
of danger. Appellants offer no evidence that the Blaziers’ SUV was doing anything
other than unwaveringly approaching the crossing prior to 5.4 seconds before the
collision. And to avoid summary judgment, Appellants “must provide more than

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conjecture and speculation,” but must “designate specific facts creating a triable
controversy.” Rusness v. Becker Cnty., 31 F.4th 606, 614 (8th Cir. 2022) (quoting
McConnell v. Anixter, Inc., 944 F.3d 985, 988 (8th Cir. 2019)). Appellants failed to
do so here. We thus affirm the district court’s grant of summary judgment in favor
of DM&E on Appellants’ failure to keep a proper lookout claim.2
B. Excessive Speed
Appellants also claim DM&E’s locomotive crew acted negligently by
traveling at an excessive speed which caused the locomotive’s collision with the
Blaziers’ SUV. The district court concluded this claim was preempted by the
Federal Railroad Safety Act (the “FRSA”). We agree.
The Supremacy Clause of the United States Constitution states: “This
Constitution, and the Laws of the United States . . . shall be the supreme Law of the
Land.” U.S. Const. art. VI, cl. 2. Accordingly, “Congress can define explicitly the
extent to which its enactments pre-empt state law.” English v. Gen. Elec. Co., 496
U.S. 72, 78 (1990). Congress did just that in the FRSA’s preemption provision,
which generally preempts (with exceptions) state laws, regulations, and orders
related to railroad safety. See 49 U.S.C. § 20106(a)(1)–(2). Under the authority
granted by the FRSA and the Secretary of Transportation, see 49 U.S.C. § 20103(a);
49 C.F.R. § 1.89(a), the Federal Railroad Administration (“FRA”) has prescribed
nationally uniform speed limits for locomotives. See 49 C.F.R. § 213.9. These speed
limits generally preempt excessive speed claims under state law. See CSX Transp.,
Inc. v. Easterwood, 507 U.S. 658, 675 (1993) (holding state-law excessive speed
claims are preempted by 49 C.F.R. § 213.9).
2 Because Appellants fail to present evidence sufficient to prove the crew’s
allegedly improper lookout caused the collision, they also fail to present evidence
sufficient to prove DM&E’s alleged failure to train the crew to keep a proper lookout
caused the collision.

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The FRSA clarifies, however, that an action under state law seeking damages
for personal injury, death, or property damage is not preempted by federal regulation
where the action is based on a railroad’s failure to comply with the standard of care
provided by federal regulation. 49 U.S.C. § 20106(b). Appellants argue DM&E
violated the FRA’s speed regulations by traveling at 22.1 miles per hour without the
proper lighting and therefore Appellants’ excessive speed claim is not preempted.
Not so.
It is undisputed that the locomotive was traveling at 22.1 miles per hour as it
approached the crossing. It is also undisputed that the general federal speed limit
for locomotives on a “Class 3” track, like here, was forty miles per hour. See 49
C.F.R. § 213.9(a). Appellants claim, however, that the locomotive violated 49
C.F.R. § 229.125(d), which requires lead locomotives traveling above twenty miles
per hour over public highway-rail crossings to have operative auxiliary lights and
headlights. Appellants assert there is a genuine dispute about whether a ditch light
(which is an auxiliary light) and a headlight on DM&E’s locomotive were operative
at the time of the collision. They argue that if such lights were not operative at the
time of the collision, DM&E’s locomotive violated § 229.125(d) by traveling above
twenty miles per hour. Appellants then argue the locomotive would not have
collided with the Blaziers’ SUV had it been traveling under twenty miles per hour.
We hold that even if the disputed lights were not operative, Appellants’
excessive speed claim is still preempted. Appellants’ argument is chameleonesque.
For purposes of preemption, Appellants’ excessive speed theory takes the form of
an improper lighting theory. Section 229.125(d) requires that a lead locomotive
“operated at a speed greater than 20 miles per hour over one or more public highway-
rail crossings shall be equipped with” the proper lighting. 49 C.F.R. § 229.125(d)
(emphasis added). The operative command in this regulation, as indicated by the
language “shall be,” is the equipping of locomotives with proper lighting. A
locomotive’s speed is merely a condition that triggers the lighting requirement. In
other words, § 229.125(d) is violated by improper lighting, not excessive speed
(though speed is relevant in determining proper lighting).

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Once beyond the obstacle of preemption, Appellants drop the improper
lighting theory and rely only on excessive speed to get past the causation obstacle.
Appellants argue that had the locomotive been going slower, the collision would not
have occurred. Appellants do not argue that the DM&E crew or anyone in the
Blaziers’ SUV could have avoided the collision if all the locomotive’s headlights
and ditch lights were properly lit.3
Thus, Appellants’ excessive speed theory is an improper lighting theory for
preemption purposes and an excessive speed theory for causation purposes.
Appellants cannot have it both ways. They cannot rely on the cover of alleged
lighting violations to slip an excessive speed theory past preemption. See Kurns v.
A.W. Chesterton Inc., 620 F.3d 392, 398 n.8 (3d Cir. 2010) (concluding “[t]he
gravamen of the plaintiffs’ claim” was an issue preempted by federal law and that
the plaintiffs could not “rebrand [the] claim in order to avoid preemption”), aff’d sub
nom. Kurns v. R.R. Friction Prod. Corp., 565 U.S. 625 (2012). Because Appellants
do not argue that a lack of lighting contributed to the collision, the gravamen of
Appellants’ excessive speed theory is simply that the locomotive was moving too
fast (as Appellants’ own “excessive speed” label would suggest). FRA regulations
set the speed limit for the subject locomotive at forty miles per hour. See 49 C.F.R.
§ 213.9. The locomotive was undisputedly traveling under this limit. And we are
not persuaded by Appellants’ attempt to rebrand the lighting requirements under
3 Even if Appellants made this argument, they fail to show the locomotive’s
alleged noncompliance with § 229.125(d)’s lighting requirements proximately
caused the collision. See Grade v. BNSF Ry. Co., 676 F.3d 680, 687 (8th Cir. 2012)
(noting that even assuming the defendant breached a duty created by a railroad safety
statute, the “defendant’s negligence is not actionable unless it is a proximate cause
of the plaintiff’s injuries” (quoting Scott v. Khan, 790 N.W.2d 9, 19 (Neb. Ct. App.
2010))); Gehl ex rel. Reed v. Soo Line R.R. Co., 967 F.2d 1204, 1207 (8th Cir. 1992)
(applying proximate cause to negligence action against railroad under Iowa law).
Appellants present no evidence that a lack of lighting contributed to the collision in
any way. Indeed, the collision occurred on a clear day, and it is undisputed that the
locomotive had at least one operational headlight and ditch light at the time of the
collision.

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§ 229.125(d) into an alternative speed limit. Accordingly, the Appellants’ excessive
speed claim is preempted by 49 C.F.R. § 213.9 and the FRSA.
III. Conclusion
For the reasons stated herein, we affirm the district court’s grant of summary
judgment in favor of DM&E.
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