Timmel v. Burlington Northern R. Co.

977 F.2d 591 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Cynthia TIMMEL, Personal Representative of the Estate of Lionel Vernon Timmel, Deceased, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, Defendant-Appellee. No. 91-35481. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 6, 1992. Decided Oct. 22, 1992. Before FEINBERG, * GOODWIN and SCHROEDER, Circuit Judges. 1 MEMORANDUM ** 2 Cynthia Timmel appeals from the district court's grant of summary judgment in favor of Burlington-Northern Railroad Company. Timmel brought a diversity action seeking damages for the wrongful death of her husband, Lionel Timmel, who was killed while trying to cross the railroad tracks by a locomotive driven by an employee of Burlington. 3 The district court correctly concluded that it should not follow this court's decision in Power v. Union Pacific R.R., 655 F.2d 1380 (9th Cir.1981). Power wrongly predicted that the Washington…