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123 2. Inadmissibility of Evidence of Prior Accidents Too Remote 667 in Time In Richardson v. Norfolk Southern Ry. Co.,577 the Supreme Court of Mississippi held that accidents 13 years apart were too remote to be admitted as evidence of prior accidents and that in general evidence of accidents over a year prior to an accident is not admissible. 3. Evidence of Prior Accidents Inadmissible When Vehicles Were 668 Traveling in Opposite Directions The Supreme Court of Arkansas held in Union Pacific R. R. Co. v. Barber578 that conditions were not substantially similar when vehicles involved in other accidents or incidents (i.e., near-misses) had approached the same crossing from opposite directions; however, the trial court properly admitted evidence of overgrown vegetation that obstructed the vision of motorists travelling northbound. Article 669 4. Admission of Evidence of Prior Accidents in Tort Cases Involving 669 Defective Premises An article in the Journal of the Missouri Bar, which analyzes Missouri law on the admissibility of evidence of prior accidents in negligence cases involving defective premises and the same defendant, argues that evidence of prior accidents may not be used to show that a defendant was negligent, only to show that the defendant was on notice of a dangerous condition.579 XXIX. MANUAL ON UNIFORM TRAFFIC CONTROL DEVICESâ 671 PART 8 A. Introduction 671 577 923 So. 2d 1002, 1009â1010 (Miss. 2006) (followed by Irby v. Travis, 935 So. 2d 884 (Miss. 2006) (holding that evidence of prior accidents was inadmissible because the conditions of the accidents were not similar)). 578 356 Ark. 268, 291, 149 S.W.3d 325, 340 (Ark. 2004), cert. denied, motion granted by 125 S. Ct. 320, 160 L. Ed. 2d 249 (2004). 579 James D. Walker, Jr., Evidence of Prior Accidents/Incidents in Premises Defect Cases, 64 J. MO. B. 22 (2008).
124 Part 8 of the Manual on Uniform Traffic Control Devices (MUTCD or Manual) governs Traffic Control for Railroad and Light Rail Transit Grade Crossings.580 Section B explains why the MUTCD is the national standard. Section C discusses the meaning of the paragraphs in the MUTCD that are designated as standards, guidance statements, option statements, and support statements. Section D highlights some of the specific changes that the 2009 edition of the MUTCD made to Part 8. Sections E and F explain two important revisions that were made to the MUTCD after its adoption and publication. Section G provides information on the various dates when some states adopted the 2009 version. Section H analyzes several recent cases that involve railroads and the MUTCD. Statutes and Regulations 671 B. The MUTCD as the National Standard 671 The 2009 MUTCD promulgated by the FHWA âis the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel.â581 C. MUTCDâs Standards, Guidance, Options, and Support 672 The MUTCD is âorganized to differentiate between âStandards that must be satisfiedâ¦Guidances that should be followedâ¦and Options that may be applicable for the particular circumstances of a situation.ââ582 Only those provisions that are designated as standards are mandatory.583 D. Discussion of Some Specific Changes in Part 8 of the 674 2009 MUTCD FHWAâs final rule published on December 16, 2009, discusses the amendments to Part 8 of the MUTCD on Traffic Controls for Railroad and Light Rail Transit (LRT) Grade Crossings.584 580 The MUTCD is available at http://mutcd.fhwa.dot.gov/pdfs/2009r1r2/mutcd09r1r2editionhl.pdf and is hereinafter referred to as the â2009 MUTCD.â 581 23 C.F.R. Â§ 655.603(a) (2014). 582 Yonkings v. Piwinski, 2011-Ohio-6232 P23 (Ohio App. 2011) (citation omitted). 583 American Family Mutual Insurance Co. v. Outagamie County, 2012 WI. App. 60, P19, 341 Wis. 2d 413, 816 N.W.2d 340 (Wis. Ct. App. 2012) (citation omitted). 584 Federal Highway Administration, National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Revision; Final Rule, 74 Fed. Reg. 66730, 66780-84, 66847 (Dec. 16, 2009), available at http://www.gpo.gov/fdsys/pkg/FR-2009-12-16/html/E9- 28322.htm (last accessed Mar. 31, 2015).
125 E. Revision 1 of the MUTCD 677 Since 2009 FHWA has made at least two important revisions to the MUTCD.585 The effect of the final rule and Revision 1 is 1) to omit certain language that was included in the 2009 MUTCD and 2) to restore language that appeared in the 2003 MUTCD but that was deleted in the 2009 edition. F. Revision 2 of the MUTCD 678 The second important revision, published on May 14, 2012, of the 2009 MUTCD concerns compliance dates in Table I-2.586 G. Date of State Adoption of the 2009 MUTCD 679 The version of the Manual in effect at the time of any alleged violation of the Manual is the version that applies in a tort action.587 Cases 680 H. Cases Involving Railroads and the MUTCD 680 1. Federal Preemption of Claims Based on Alleged Violations of 680 the MUTCD In Illinois Central Railroad Company v. Daniel,588 a federal district court in Mississippi held that âfederal law pre-empted state law at the time federally funded signals were installed at this crossing.â589 585 Federal Highway Administration, National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Revision; Final Rule, 77 Fed. Reg. 28456 (May 14, 2012). The rule became effective on June 13, 2012. 586 Id. at 28460. 587 Shope v. City of Portsmouth, 2012 Ohio 1605 at P20 (Ohio Ct. App. 2012). 588 901 F. Supp. 2d 790 (S.D. Miss. 2012). 589 Id. at 803.
126 2. Federal Preemption of Negligence Claims for Inadequate 681 Warning Devices In Murrell v. Union Pacific Railroad Company,590 although the MUTCD is not mentioned, a federal district court in Oregon held that federal law preempted the plaintiffâs claims that there were inadequate warning devices. 3. Waiver of Federal Preemption Based on Federal Funding to Upgrade 682 or Replace Warning Devices In Indiana Rail Road Company v. Davidson,591 the issue concerned preemption and traffic warning devices at the site of a fatal collision. The Indiana Court of Appeals held that the Indiana Rail Roadâs motion for a partial summary judgment was properly denied because there was âa genuine issue of material fact whether the federal government affirmatively abandoned the projectâ and, thus, whether federal preemption applied any longer to the railroad crossing.592 4. Failure to Show that a Crossing Did Not Comply with 683 the MUTCD In Ill. Cent. Gulf R.R. Co. v. Travis,593 in which one issue was whether a crossbuck sign violated Mississippi Code Section 77-9-247 and the 2009 MUTCD Section 8B.03, the Supreme Court of Mississippi held that that âTravis presented no evidence that the crossbuck sign was not in compliance with the MUTCD.â594 5. Failure to Show that a Crossing Was Unusually Dangerous 684 at Common Law In Brown v. Illinois Central Railroad,595 the only issue was whether an alleged âunusually dangerousâ crossing triggered a common law duty to install additional signaling devices; however, the plaintiffâs expert failed to show how the crossing was any more âdeceptively dangerousâ¦than the hundreds of other crossings in Mississippi.â596 590 544 F. Supp. 2d 1138, 1152 (D. Or. 2008). 591 983 N.E.2d 145 (Ind. Ct. App. 2012). 592 Id. at 152. 593 106 So. 3d 320 (Miss. 2012), rehearing denied, 2013 Miss. LEXIS 93 (Miss., Feb. 14, 2013). 594 Id. at 334 (emphasis in original). 595 705 F.3d 531 (5th Cir. 2013). 596 Id. at 539 (footnote omitted).