474 F.3d 951 (7th Cir. 2007), 06-1909, Miller v. Illinois Cent. R. Co.

Docket Nº:06-1909, 06-1910.
Citation:474 F.3d 951
Party Name:Thomas E. MILLER and Lynn Miller, Plaintiffs-Appellants, v. ILLINOIS CENTRAL RAILROAD COMPANY, et al., Defendants-Appellees.
Case Date:January 25, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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474 F.3d 951 (7th Cir. 2007)

Thomas E. MILLER and Lynn Miller, Plaintiffs-Appellants,

v.

ILLINOIS CENTRAL RAILROAD COMPANY, et al., Defendants-Appellees.

Nos. 06-1909, 06-1910.

United States Court of Appeals, Seventh Circuit.

January 25, 2007

Argued December 6, 2006.

Appeals from the United States District Court for the Southern District of Illinois No. 03-657-GPM--G. Patrick Murphy, Chief Judge.

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Howard Benson Becker (argued), Korein Tillery, Belleville, IL, Christopher B. Daniels, Centralia, IL, for Plaintiffs-Appellants.

Richard E. Boyle, Mark R. Kurz (argued), Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, IL, Stephen A. Rehfeldt (argued), Mulherin, Rehfeldt & Varchetto, Wheaton, IL, Thomas M. Crawford (argued), Litchfield Cavo, Chicago, IL, for Defendants-Appellees.

Before Posner, Ripple, and Wood, Circuit Judges.

Posner, Circuit Judge.

The Millers brought suit in an Illinois state court against a variety of companies, seeking damages for serious injuries sustained by Mr. Miller when the truck he was driving was struck by an Amtrak train at a crossing. Amtrak was one of the defendants and exercised its right to remove the case to federal district court, Aliotta v. National R.R. Passenger Corp., 315 F.3d 756, 758 n. 1 (7th Cir. 2003), but the parties have assumed that Illinois law remains applicable to the plaintiffs' claim against Amtrak (as well as, of course, the other defendants), and we think the assumption is correct. Id. at 759; Hollus v. Amtrak Northeast Corridor, 937 F.Supp. 1110, 1114 (D.N.J. 1996). Although Amtrak's right to remove is based on its being deemed an instrument of the federal government because more than 50 percent of its stock is owned by the United States, see 28 U.S.C. § 1349; cf. Empire Healthchoice Assurance, Inc. v. McVeigh, --- U.S. ----, ---- - ---- and n. 3, 126 S.Ct. 2121, 2131-32 and n. 3, 165 L.Ed.2d 131 (2006), nowhere is there any indication that Congress wanted victims of Amtrak accidents to have any rights other than those conferred on victims of railroad accidents by state law. Cf. 49 U.S.C. § 28103(a)(1) (restricting the award of punitive damages in suits against Amtrak); id., §§ 24301(g), 28103(c); compare A.I. Trade Finance, Inc. v. Petra International Banking Corp., 62 F.3d 1454, 1463-64 (D.C. Cir. 1995). And if the source of a plaintiff's claim is state law, then state law should determine the merits of the claim, whatever the source of federal jurisdiction. Henry J. Friendly, "In Praise of Erie--And of the New Federal Common Law ," 39 N.Y.U. L. Rev. 383, 408-09 n. 122 (1964).

Even if, contrary to what we've just said, the question of Amtrak's liability for railroad accidents should be thought one "involving the rights of the United States arising under nationwide federal programs" and governed therefore by federal common law, United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), the sensible federal rule as in Kimbell would be to make state law the rule of decision. Otherwise the federal courts would have to make up a common law of railroad accidents, a laborious chore that would create

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arbitrary differences between the liabilities of Amtrak and those of other railroads with which it shares tracks. This concern is underscored by the fact that Amtrak is merely one of several defendants in this case and that the others are in federal court only (so far as appears) by virtue of the federal district court's supplemental jurisdiction. See 28 U.S.C. § 1367(a). There is nothing to distinguish Amtrak from the other defendants--especially the other railroad defendant--except its majority ownership by the federal government.

The district court granted summary judgment for the defendants on the ground that Miller's conduct had been the "sole proximate cause" of the accident. Because of the procedural posture, we construe the facts as favorably to the plaintiffs as the record permits.

The Illinois Central Railroad had hired defendant S.T.S. Acquisitions (STS) to build and repair some fuel-related facilities at the railroad's railyard in Centralia, a town in southern Illinois. STS in turn hired another defendant, Central States Environmental Services (CSES), to be the general contractor for most of the construction work. CSES in turn hired S&M Basements to be a subcontractor to do the concrete work required for the project. Miller was a partner in S&M.

The most convenient way for Miller and the other workers on the railyard project to reach the construction site was by driving across three parallel railroad tracks at a private grade crossing, that is, a crossing not intended for the use of the general public. There were no gates or signals at the crossing and no flagman posted there.

The tracks ran north and south and the construction site was to the west of them. When a worker on his way home from work drove from the site and entered the crossing, the first track he encountered was a "rip track," which is a spur or siding in which railroad cars are repaired in place. The next (middle) track was used by a switch engine for switching. The third and easternmost track was a main line. An Amtrak train ran on the...

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