Mittlieder v. Chicago and Northwestern Railway Co.

• Decision Date: 23 June 1969
• Docket Number: No. 19314.,19314.
• Citation: 413 F.2d 77
• Parties: Ismay MITTLIEDER, Special Administrator of the Estate of Elmer R. Ochsner, Deceased, Appellant, v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.2d 77 (1969)

Ismay MITTLIEDER, Special Administrator of the Estate of Elmer R. Ochsner, Deceased, Appellant, v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY, a Corporation, Appellee.

No. 19314.

United States Court of Appeals Eighth Circuit.

June 23, 1969.

Martin A. Cannon, of Matthews, Kelley, Cannon & Carpenter, Omaha, Neb., for appellant, and filed brief.

Harry B. Otis, of Gaines, Spittler, Neely, Otis & Moore, Omaha, Neb., for appellee, and filed brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

Elmer Ochsner of Omaha, Nebraska, was killed when the automobile in which he was a passenger was struck by a freight train. His special administrator brought a proper diversity action for wrongful death against the Chicago and Northwestern Railway Company. A jury denied recovery. Post-judgment, the trial court denied the administratrix's motion for a new trial. On a timely appeal from the judgment, Ochsner's administrator contends primarily that the trial court erred in submitting the issue of Ochsner's contributory negligence to the jury and it erred in rulings on admissibility of certain testimony of expert witnesses.

The railroad engineer is the only surviving eye-witness to the tragedy. Ochsner, his wife, another passenger and the driver, Glen Haney, all died instantly. Testimony and exhibits establish that on August 31, 1965, at about 2:30 A.M., Haney's stationwagon was eastbound on a two-lane paved highway in Douglas County, Nebraska, when it was struck broadside by defendant's northbound train. The train consisted of two diesel engines, twelve empty boxcars and a caboose, and was traveling on a generally level north-south track intersecting the highway at approximately right angles. On the south shoulder of the highway, immediately west of the track, was the usual cross-buck warning sign. East of the track and on the north shoulder, facing westbound traffic, was a combination cross-buck sign with an electric "wigwag" signaller containing two-way lights which flash to warn both eastbound and westbound traffic. The head brakeman testified that he had noticed the wigwag signal operating when the train was about 100 to 150 feet from the crossing and that he heard the signal bell as the train reached the intersection. For eastbound automobile traffic approaching the crossing, the view south is obstructed by trees which parallel the track. Before reaching the track, this traffic must cross an overhead-type bridge which terminates about 115 feet west of the track. Visibility to the south continues obstructed to a point about 100 feet west of the track.

The engineer testified that he first saw the Ochsner vehicle as it came off the bridge. The train was then about 50 feet from the crossing and the engineer commenced emergency braking procedures. The physical evidence demonstrated that the lead engine impaled the right side of the car on its front coupler and pushed the automobile 461 feet along the track before both the locomotive and the auto came to a stop.

At the trial, plaintiff specified several grounds of negligence, including charges that the train's headlamp was not lit, that the train was traveling at an excessive speed under the circumstances, and that the railroad maintained a dangerous crossing in that the flashing signal located on the far side of the track would be misleading to an eastbound motorist, driving at night, since it might cause him to stop on the track.

Plaintiff introduced testimony that the train had been seen at another crossing near the accident and, at that time, the headlamps on the diesel locomotive were not lit. Plaintiff also called an expert witness who testified that in his opinion the automobile had stopped on the track before it was struck by the train. Such testimony supported plaintiff's theory of negligence and causation that the farside signaller, the hard-to-see rails and the visual obstructions would cause an eastbound motorist to come to a stop on the railroad tracks just short of the flashing signal. Although plaintiff attempted to produce expert testimony that the train was traveling in excess of the railroad-imposed speed limit of twenty-five miles per hour, the trial court refused to admit such evidence in the form presented.

The defendant, while denying negligence, affirmatively asserted that plaintiff's decedent was guilty of contributory negligence in riding as a passenger in an automobile when he knew or should have known that the driver of the vehicle was intoxicated. Defendant made no motion for a directed verdict at the close of the case and all issues were submitted to the jury for its general verdict.

I.

The parties stipulated that the sample of blood taken from the deceased driver after the accident and subjected to chemical analysis contained .22% alcohol by weight. Dr. Archibald Ross McIntyre, Professor of Pharmacology at Nebraska Medical College testifying as an expert witness on behalf of the defendant, stated his opinion that all persons "could be said to be intoxicated" with a minimum concentration of .10% alcohol in the blood. Over objection, he also testified that a person with .22% blood-alcohol content "would not be in a state to drive an automobile".

Neither party produced any testimony concerning activities of the occupants of the automobile prior to the accident. Thus, the only evidence upon which the jury might find Ochsner guilty of contributory negligence was the fact of his presence in the automobile following the accident and the fact that laboratory tests disclosed that the driver was intoxicated. Defendant urges that such evidence was sufficient ground for a jury to draw a permissible inference that plaintiff's decedent negligently remained in the car though he knew the driver was intoxicated.

Nebraska law recognizes that a passenger who rides with a drinking driver may be guilty of contributory negligence. The rule was most recently stated in Schaffer v. Bolz, 181 Neb. 509, 149 N.W.2d 334, 338 (1967):

"A guest may be guilty of contributory negligence, or assumption of risk, by riding or continuing to ride with a driver who he knows, or in the exercise of ordinary care and diligence should know, is so intoxicated that he is unable to operate the vehicle with proper prudence or skill. * * * But knowledge that the driver has been drinking does not necessarily bar the recovery by a guest. The rule contemplates a situation where the driver is really and perceptibly under the influence of liquor and actual ascertainable intoxication exists to such an extent that the guest is charged with knowledge of it. * * *" (Citations omitted.)

The defendant was required to carry the burden of proving that Ochsner was guilty of contributory negligence. Giebelman v. Vap, 176 Neb. 452, 126 N.W.2d 673, 678 (1964). When circumstantial evidence is relied upon to prove the affirmative of the issue, the Nebraska Supreme Court has articulated several standards. In Howell v. Robinson Iron & Metal Co., 173 Neb. 445, 113 N.W.2d 584, 587 (1962), the Court said:

"The burden of establishing a cause of action by circumstantial evidence requires that such evidence, to be sufficient to sustain a verdict or require submission of a case to a jury, shall be of such character and the circumstances so related to each other that a conclusion fairly and reasonably arises that the cause of action has been proved."

In Howell, two other guideline rules were noted:

"`Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. All that the law requires is that the facts and circumstances proved, together with the inferences that may be properly drawn therefrom, shall indicate with reasonable certainty the negligent act charged.\' Gilliland v. Wood, 158 Neb. 286, 63 N.W.2d 147."

"`In order for circumstantial evidence to be sufficient to require the submission of an issue of negligence to a jury it must be such that a reasonable inference of negligence arises from the circumstances established. If such evidence is susceptible to any other reasonable inference, inconsistent with the inference of negligence on the part of the party charged, it is insufficient to carry the case to the jury.\' Bedford v. Herman, 158 Neb. 400, 63 N.W.2d 772."

See also, Petracek v. Haas O. K. Rubber Welders, Inc., 176 Neb. 438, 126 N.W.2d 466, 470 (1964).

More recently, in Raff v. Farm Bureau Ins. Co., 181 Neb. 444, 149 N.W.2d 52, 56 (1967), the Court observed:

"Conjecture, speculation, or choice of possibilities is not proof. There must be something more which will lead a reasoning mind to one conclusion rather than another."

And in Norcross v. Gingery, 181 Neb. 783, 150 N.W.2d 919, 921 (1967):

"Where several inferences may be drawn from the facts proved, which inferences are opposed to each other but equally consistent with the facts proved, the plaintiff may not sustain his position by a reliance alone on the inferences which would entitle him to recover."

In the present situation, unlike that in other Nebraska drinking-driving cases, e. g., Schaffer v. Bolz, supra; Kaufman v. Tripple, 180 Neb. 593, 144 N.W.2d 201 (1966); Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 149 A.L.R. 1041 (1943); and McGrath v. Nugent, 133 Neb. 237, 274 N.W. 549 (1937), we have no direct testimony nor circumstantial evidence indicating the extent to which the passenger had observed the driver's condition except the fact that the passenger was physically present in the car at the time of the accident. There is no evidence that the driver objectively displayed his intoxication to his passenger; no evidence that Ochsner had an opportunity to know of the driver's condition if, indeed, the driver would manifest his allegedly intoxicated state to any extent. In order to justify the submission of the contributory negligence issue to the jury, one must be able to say that Ochsner's presence in the car with a driver...