Thompson v. Illinois Central Railroad Company, 19459.

• Citation: 423 F.2d 1257
• Decision Date: 10 April 1970
• Docket Number: No. 19459.,19459.
• Parties: Walter C. THOMPSON, Individually and as Administrator of the Estate of Janie Underdown Thompson, deceased, Plaintiffs-Appellees, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

423 F.2d 1257 (1970)

Walter C. THOMPSON, Individually and as Administrator of the Estate of Janie Underdown Thompson, deceased, Plaintiffs-Appellees, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellant.

No. 19459.

United States Court of Appeals, Sixth Circuit.

April 10, 1970.

James G. Wheeler, Paducah, Ky., Wheeler & Marshall, Paducah, Ky., on the brief, for appellant.

Milton M. Livingston, Jr., Paducah, Ky., Dandridge F. Walton, Carroll & Walton, Paducah, Ky., on the brief, for appellees.

Before WEICK, EDWARDS and PECK, Circuit Judges.

WEICK, Circuit Judge.

Appellant, Illinois Central Railroad Company (the railroad), has appealed from judgments entered against it in the District Court on verdicts in favor of plaintiffs in the amounts of $25,000 and $2,350, in an action for damages for the wrongful death of plaintiff's wife, for her funeral expenses, and for damages to the automobile which she was driving, the action arising out of a collision with defendant's freight train at a grade crossing.

The accident occurred at about seven o'clock in the evening of December 29, 1967, on Schneidman Road in McCracken County, Kentucky, immediately south of the city limits of Paducah, where tracks of the Paducah & Illinois Railroad cross said highway at grade¹. It was dark at the time.

The sole issue raised in this appeal is that the District Court erred in denying the railroad's motion for a directed verdict and for judgment notwithstanding the verdict. These motions were based on the contention of the railroad that the decedent was contributorily negligent as a matter of law.

We are of the opinion, for the reasons hereafter given, that decedent was contributorily negligent as a matter of law. This diversity case is governed by Kentucky law.

Schneidman Road is about twenty feet wide, runs north and south, and is a heavily traveled thoroughfare in Paducah. It is intersected at grade by two separate tracks owned respectively by the Illinois Central Railroad and the Paducah & Illinois Railroad. They are single tracks running in an east-west direction, roughly parallel to each other at the crossing, and are separated by a distance of 167 feet. Cross-buck signs indicating the railroad crossing are located on either side of Schneidman Road at both tracks, and are visible to motorists approaching from either direction. The Paducah & Illinois track is slightly higher than the Illinois Central track.

Plaintiff and his wife had lived in the county for about eleven years prior to the accident and both were employed.

The decedent was 39 years of age. On the night of the accident she was driving her husband's automobile in a northerly direction on Schneidman Road. She first drove safely over the tracks of the Illinois Central Railroad, and proceeded 167 feet to cross the tracks of the Illinois & Paducah Railroad, directly in the path of the approaching freight train, and was struck broadside by the front locomotive. Her automobile was propelled across the tracks and came to rest in an adjacent lot on the northerly side of the tracks.

The freight train was about a mile long. It consisted of 107 cars which were being moved by two diesel locomotives. The front locomotive was equipped with a powerful sealed-beam headlight which shone 1000 to 1500 feet ahead and lighted the adjacent ground on either side of the tracks for about fifty feet. It was also equipped with an air horn and a bell signal.

The train crew estimated the speed of the train at from twenty to twenty-five miles an hour², and gave substantially the same estimate for the speed of the automobile operated by decedent. There was no slackening of speed of either the train or the automobile prior to the accident. When the train came to a stop, thirty-six cars had crossed Schneidman Road.

The train crew testified to the giving of the statutory signals³ but this was disputed. Three persons, who were playing a game in a house near the tracks, testified that they did not hear the whistle or the bell. Plaintiff's witness, Troy E. Colson, who was driving an automobile in the opposite direction from decedent and had passed her just prior to the accident, testified that after he crossed the Paducah & Illinois track

"* * * the train blowed sic the whistle. * * * It was one short whistle three or four seconds long and that was all." (T. 24)

The train was about three hundred feet away from the crossing when Colson heard the whistle blown. He did not hear the train's whistle or bell before that time.

While the positive testimony that the signal was given may be entitled to greater weight than the negative testimony of the witnesses who did not hear them, we are of the opinion that the weight of this evidence was for the jury to consider and the District Judge did not err in submitting to the jury the issue of negligence on the part of the railroad in failing to give the statutory signals. The railroad does not dispute this.

In considering the question whether a verdict should have been directed on the ground of contributory negligence, we are required to view the evidence, as well as the inferences justifiably drawn therefrom, in the most favorable light to plaintiff. Baird v. Cincinnati, New Orleans & Texas Pac. Ry., 315 F.2d 717, 720 (6th Cir. 1963). We must determine —

"Under all the facts and circumstances of this particular case, was there room for reasonable, fair-minded men to differ on the question of whether * * * the plaintiff exercised ordinary care?" Hargadon v. Louisville & Nashville R. R., 375 S.W. 2d 834, 838 (Ky.1964).

Accord, Louisville & Nashville R. R. v. Hines, 302 S.W.2d 553, 556 (Ky.1957).

The testimony of plaintiff's witness, Colson, who appeared to be the only disinterested witness to the accident, is most significant. Traveling in the opposite direction from the decedent, he crossed the higher (Paducah & Illinois) tracks just prior to the accident. He testified on direct examination:

"A * * * So I eased on up to the track, and as I approached the track, I was doing 30 at that time, around 30, and as I approached the track I slowed down, and I started up the grade and I was almost to a halt looking at the train to see if I had time to get over, it was coming from the west, and I seen I had time and I crossed on over the track, and as I crossed the track, I looked back at the train on the right, and as I started down the grade on the other side, the train blowed the whistle.

49 What type of whistle was it?

A It was one short whistle three or four seconds long and that was all.

50 How far was the train down the track at the time it tooted the whistle there?

A I figured it was about 300 feet.

51 Had the train ever blown its whistle or rung its bell before that time?

A No.

52 Now, what happened next?

A Well, sir, as I went on I started picking up speed, I went on over the grade, and there was another car approaching me coming to the north from the south, and me and the car passed about two thirds of the way between the tracks, from the high track to the low track, to the Illinois Central.

53 In other words, you got two thirds of the way between the tracks here?

A Yes, sir, and the lower track, which was the Illinois Central track, was a little rough on the other side, there was holes and places in it, and I had slowed down again to cross them tracks, and just as I crossed and started picking up speed again I looked up in the rear view mirror when I seen the car approaching on top of the track and the train struck it.

54 Did you actually see the striking of the train and automobile?

A Yes, sir, I did, in my rear view mirror. When the train hit the car, it looked like the car was scooped up from the track and sparks flying from it, and it looked like some pieces had flew off of the car too. It got outside my rear view mirror and I turned to my left to look and the car was done gone then." (T. 24-25)

Thus, plaintiff's own witness crossed these tracks just prior to the accident, saw the approaching train only 300 feet away, heard the whistle blow for three or four seconds, and proceeded toward the track of the Illinois Central when he passed the decedent's automobile going north, the witness having traversed almost two-thirds of the distance between the tracks. After passing Colson's automobile, decedent's view to her left was unobstructed for a distance of about 112 feet to the track where the accident occurred.

Colson further testified on cross-examination:

"27x Now when you came over the P & I track, the high track as you call it, you say you looked to your right?

A Yes, sir.

28x You saw the train coming?

A Yes, sir.

29x You saw the headlights beaming down the track, did you not? They were visible for a considerable distance, weren\'t they?

A Yes, they was hitting my car at that time.

30x Well you know, do you not, though you may not have measured it, that that straight course there back to the bridge over the Old Mayfield Road is about a thousand feet, don\'t you know that?

A Yes, sir.

31x You would say that is about correct according to this plat?

A Somewhere around a quarter of a mile or a little better.

32x So that anyone looking in that direction as you did when a train was coming with its lights on, could have seen it as far back as the bridge?

A Yes, sir, they could." (T. 33-34)

The map (plaintiff's Exhibit 4) indicates a distance of 167 feet between the two tracks at the crossing and a distance of 1031 feet from the center of the road at the crossing to the westerly bridge to which the witness referred in his testimony. The map also shows a distance of 202 feet from the south line of the Illinois Central right of way to the southerly track of the Paducah & Illinois Railroad.

As the decedent approached the tracks of the Illinois Central and was 202 feet from the Paducah & Illinois track, she had a clear and unobstructed view to the left for at least 1000 feet to the bridge, and if she had looked and listened she could have seen...