Miller v. Illinois Cent. R. Co.

• Decision Date: 25 January 2007
• Docket Number: No. 06-1910.,No. 06-1909.,06-1909.,06-1910.
• Citation: 474 F.3d 951
• Parties: Thomas E. MILLER and Lynn Miller, Plaintiffs-Appellants, v. ILLINOIS CENTRAL RAILROAD COMPANY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

474 F.3d 951

Thomas E. MILLER and Lynn Miller, Plaintiffs-Appellants, v. ILLINOIS CENTRAL RAILROAD COMPANY, et al., Defendants-Appellees.

No. 06-1909.

No. 06-1910.

United States Court of Appeals, Seventh Circuit.

Argued December 6, 2006.

Decided January 25, 2007.

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 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 main line past the crossing every day at about 5 p.m. at a fast clip.

It was around that time on a clear day in August that Thomas Miller drove his truck onto the crossing; and since it was late afternoon and he was driving east, the sun was behind him. A line of boxcars on the siding blocked his view to the right (south). He either stopped or slowed after he crossed the siding, and then continued eastward, crossing the middle track safely. But as he crossed the main line, a northbound Amtrak train traveling at 78 miles per hour (one mile per hour below the speed limit) struck the rear of his truck. Miller has no recollection of the accident, a common result of a serious accident. Although one witness testified that she did not hear the train sound its whistle (and that she would have heard if it had), as it was required to do when approaching a crossing, several others were positive they heard it and the train's engineer testified that in addition to blowing the standard whistle pattern he began blowing frantically when he saw that the truck was on a collision course with the train. The "ditch light" on the locomotive was on when the train reached the crossing. It is connected to the whistle; and the connection had been working that morning. It could have broken down before the Amtrak train arrived at the crossing, but of that there is no evidence. An independent expert's report states without contradiction that an examination of the locomotive's "black box" after the accident revealed that the whistle had indeed been blown in the irregular warning pattern to which the locomotive engineer testified:

"as the locomotive got closer to the crossing the event recorder data show that the engineer altered his horn pattern, consistent with his testimony and the testimony of those who heard the train horn."

The witness who said the whistle hadn't been blown was testifying almost four years after the accident, and in the face of all the other evidence we do not think a reasonable jury could conclude that the whistle had not been blown, merely because one witness did not recall hearing the whistle years after a very dramatic event—she was in her kitchen and testified that she heard the collision, ran outside, heard Miller screaming for help, and watched her neighbors "messing with — taking care of" Miller. It would be easy for her to forget the one routine feature of the episode—a train's whistle blowing, albeit irregularly. We conclude that summary judgment was rightly granted in favor of Amtrak.

But the reasoning that led the district judge to grant summary judgment for the other defendants is unsatisfactory. He began by noting that an Illinois statute provides that "a railroad track across a highway is a warning of danger," and therefore a driver approaching such a crossing "shall not proceed until he or she checks that the tracks are clear of an approaching train." 625 ILCS 5/11-1201(a-5). The judge thought that since the engineer saw Miller, Miller must have seen the train, and therefore he violated the statute and was negligent as a matter of law. This conclusion would follow, if the premise were correct, without need for statutory codification of so elementary a precept of prudence. But the premise is incorrect. The engineer could not have seen Miller, though he saw Miller's truck. Miller was in the driver's seat of the truck, and therefore on the left-hand side of the truck's cab. Since he was driving east and the train was traveling north, the engineer, whose perch in his locomotive was higher than the cab of the truck, could have seen only the passenger's seat. More to the point, since Miller was sitting in the seat farther from the train, he may not have seen the train until too late. A train's whistle is deafening, so even though his windows were closed and his truck was noisy, it is likely that he heard it. But he may have heard it too late to be able to stop—indeed, considering that the train struck the rear of his truck, he may have sped up to try to avoid the collision.

What is critical, as far as the issue of Miller's negligence is concerned, is the distance that he had to traverse between the line of boxcars that blocked his view to the south and the easternmost end of the crossing, where he would clear the main line and be safe. The lawyers' imprecision on this score is exasperating, as nothing could be simpler than measuring the length of the crossing, including the part of the crossing to the east of the siding. All we have is testimony that the distance between the tracks was about ten feet. The standard U.S. railroad gauge is 4 feet 8.5 inches, and if "about ten feet" refers to the distance between the east rail of one track and the west rail of another, the total distance from the west rail of the siding (the first track) to the east rail of the main line (the third track) was almost 35 feet. In addition, the crossing...