Hartzler v. Chesapeake and Ohio Railway Company
Decision Date | 09 November 1970 |
Docket Number | No. 17955.,17955. |
Parties | Jerome C. HARTZLER, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Russell J. Wildman, Peru, Ind., John H. Gobel, Gen. Counsel, Chicago, Ill., for defendant-appellant.
David B. Keller, Edward L. Murphy, Fort Wayne, Ind., for plaintiff-appellee; Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., of counsel.
Before HASTINGS, Senior Circuit Judge, and KILEY and KERNER, Circuit Judges.
Defendant-appellant, Chesapeake and Ohio Railway Company (Railway), appeals from a jury award of $75,000 in favor of plaintiff-appellee, Jerome C. Hartzler, for injuries incurred when plaintiff's car collided with defendant's train which was stopped or moving slowly across an oblique public highway intersection. Jurisdiction is based on diversity of citizenship. We affirm the jury's finding for plaintiff and the award.
Plaintiff suffered retrograde amnesia, resulting from the accident, and was not able to testify to any facts that occurred during the period several days prior to the accident until several days after the accident. In the absence of eyewitnesses, much of plaintiff's case on liability was developed by two experts. Dr. J. Stannard Baker, a traffic engineer and Director of Research and Development at the Traffic Institute of Northwestern University, testified that as one approaches the crossing from the north "there is a definite slope downward" and this decreases the ability to stop upon application of the brakes. Dr. Baker further testified that based upon an examination of the scene, skid marks, photographs and his evaluation of damages to the coal car and automobile, he was of the opinion that Hartzler was traveling between 42 and 54 miles per hour at the time he applied the brakes (the speed limit on 800E was 65 mph). Dr. Baker then stated at the speed of 42 miles per hour, approaching a railroad track intersecting the highway at the the angle defendant's track intersected and having a grade similar to highway 800E, the point at which the driver could no longer avoid a collision would be 182 feet. This point of no escape, Dr. Baker stated, would increase to 275 feet if the driver were going 54 miles per hour.
The second expert testimony was given by John W. Mihelich, a professor of physics at Notre Dame. Professor Mihelich testified that in his opinion, a dark coal hopper, whether stopped or moving slowly, would be invisible at 150 feet.
My opinion is that with normal headlights, with reflection from the black-top, reflection off the coal train at an angle with respect to the highway, with it reflecting back from the train into the eye, with there being no sharp features to outline the train, such as, say, perhaps a light background, that in all likelihood, the train would be below the level of perception for a distance fairly close beyond the range of the headlights striking the pavement, and I would venture to guess that at 150 feet that train would be invisible, if it\'s truly black with no background.
Both experts' opinions indicate that plaintiff did not see the train until it was too late to avoid a collision.
Defendant-appellant Railway contends that since it violated no statutory duty towards plaintiff, it was error to allow the jury to determine liability based on the common law rules of negligence, because under Indiana law common law negligence does not apply to a railroad where it occupies a crossing and there is a collision. While we agree defendant violated no statutory duty, we disagree that common law negligence rules are inapplicable.
Since our jurisdiction is based on diversity of citizenship, we apply the law of Indiana as interpreted by its highest court. The latest pronouncement of the Indiana Supreme Court concerning the applicability of common law negligence rules to collisions at railroad crossing was made in the recent case of Central Indiana Ry. Co. v. Anderson Banking Co., Ind., 247 N.E.2d 208 (1969). The court in Central Indiana recognized that prior Indiana law had adopted the minority view, that a railroad had no duty under any circumstances to warn the public of the presence of a train on a crossing. The court then stated the majority rule:
and stated that "Indiana has within the last few years showed a tendency to move away from the strict adherence to the minority view and toward the modern view," Id. at 210, citing Budkiewicz v. Elgin, Joliet and Eastern Ry. Co., 238 Ind. 535, 150 N.E.2d 897 (1958), and a concurring-dissenting opinion in Tyler v. Chicago-Eastern Illinois Railway, 241 Ind. 463, 490, 173 N.E.2d 314, 326 (1961). The Indiana Supreme Court, taking cognizance of the increase and development in automobile travel, clearly indicated its preference for the majority position:
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