65 F.R.D. 661 (N.D.Ind. 1974), 71 H 151, Johnson v. Baltimore & O. R. Co.

Docket Nº71 H 151.
Citation65 F.R.D. 661
Opinion JudgeALLEN SHARP, District Judge.
Party NameRalph JOHNSON and Nardine Johnson, Plaintiffs, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant.
AttorneyMax Cohen, Gary, Ind., for plaintiffs. Charles G. Bomberger, Hammond, Ind., for defendant.
Case DateDecember 17, 1974
CourtUnited States District Courts, 7th Circuit, Northern District of Indiana

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65 F.R.D. 661 (N.D.Ind. 1974)

Ralph JOHNSON and Nardine Johnson, Plaintiffs,

v.

BALTIMORE & OHIO RAILROAD COMPANY, Defendant.

No. 71 H 151.

United States District Court, N.D. Indiana, Hammond Division.

December 17, 1974

A motorist injured in a railroad crossing accident brought a diversity action for personal injury damages. After the jury returned a verdict awarding damages of $325,000 to the motorist and $50,000 to his wife, the railroad filed motions for judgment notwithstanding the verdict and for new trial. The District Court, Allen Sharp, J., held, inter alia, that the evidence made issues for the jury as to whether the train sounded its whistle and rang its bell as required by statute and whether the motorist stopped and looked for the train before proceeding over the crossing; that the damages awarded were not excessive; and that various rulings concerning instructions were correct.

Motions denied.

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Max Cohen, Gary, Ind., for plaintiffs.

Charles G. Bomberger, Hammond, Ind., for defendant.

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OPINION AND ORDER

ALLEN SHARP, District Judge.

This is an action for personal injury damages based upon diversity of citizenship. The defendant railroad was charged with various acts of negligence and the plaintiff, Ralph Johnson, was charged with contributory negligence. On September 11, 1974 the jury returned a verdict for Ralph Johnson in the sum of $325,000.00 and for Nardine Johnson in the sum of $50,000.00 and judgments were accordingly entered thereon.

I

On September 23, 1974 the defendant filed a motion for judgment notwithstanding the verdict upon grounds that the Court should have granted the defendant's motion for a directed verdict at the close of all the evidence because the plaintiff's evidence was insufficient in law and that all of the evidence is insufficient in law to form a basis for a verdict for the plaintiffs. Said motion for judgment notwithstanding the verdict was not supported by any memorandum or citation of authority.

The test for a directed verdict is whether the evidence is such that without weighing the credibility of witnesses or otherwise considering the weight of evidence there can be but one conclusion as to the verdict that reasonable men could have reached and the jury reached a contrary conclusion. See Classic Bowl, Inc. v. AMF Pinspotters, Inc., 403 F.2d 463 (7th Cir. 1968).

The right to determine the credibility of witnesses lies at the heart of the jury's function. If there is conflicting testimony on a material issue, the Court may not grant a directed verdict or a judgment notwithstanding the verdict because the Court believes one witness and does not believe another. A conflict of this kind can only be resolved by the jury. See Sano v. Pennsylvania Railroad Co., 282 F.2d 936 (3rd Cir. 1960).

In a case based on diversity of citizenship in a Federal Court State law governs on the question of whether a verdict should be directed. See Etling v. Sander, 447 F.2d 593 (7th Cir. 1971), and Perzinski v. Chevron Chemical Co., 503 F.2d 654 (7th Cir. 1974). See also, Karczewski v. Ford Motor Company, 382 F.Supp. 1346 (N.D.Ind.1974). Recent Indiana cases which are squarely in point demonstrate that a verdict should not have been directed and the motion for judgment notwithstanding verdict should be denied. See Wroblewski v. Grand Trunk Western Railway Company, Ind.App., 276 N.E.2d 567 (Trans. denied June 28, 1972), and Smith v. Chesapeake & Ohio Railroad Company, Ind.App., 311 N.E.2d 462 (Trans. denied November 12, 1974). Therefore, said motion for judgment notwithstanding verdict is denied.

II

On September 20, 1974 the defendant filed motion for new trial asserting the following specifications of error:

1. The verdicts of the jury are not sustained by sufficient evidence.

2. The verdicts of the jury are contrary to law.

3. The damages assessed by the jury are excessive.

4. Error of law in giving to the jury Court's Instruction No. 17.

5. Error of law in giving to the jury Court's Instruction No. 32.

6. Error of law in refusing to give to the jury defendant's tendered Instructions Nos. 20 and 25.

7. Error of law in giving to the jury Court's Instruction No. 33.

Said motion for a new trial was supported by an extensive memorandum brief. The plaintiff filed a brief in opposition to the motion for new trial on October 1, 1974 and on November 22, 1974 the defendant

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filed a supplemental brief in support of the motion for a new trial together with a requested summary of the evidence. On November 26, 1974 the plaintiffs filed a supplemental answer in opposition to defendant's motion for a new trial. The Court also heard the oral argument of counsel on the motion for a new trial on November 27, 1974.

The Court now proceeds to take up and decide the various issues raised by the defendant in said motion for new trial.

As a backdrop the Court is well aware of the standard for consideration of the motion for a new trial as stated by Judge John J. Parker in the landmark and oft-quoted case of Garrison v. United States, 62 F.2d 41 (4th Cir. 1932). See also, Reid v. Maryland Casualty Company, 63 F.2d 10 (5th Cir. 1933). The key sentence from Judge Parker's opinion is found at 62 F.2d page 42 as follows:

‘ Verdict may be set aside and new trial granted, when the verdict is contrary to the clear weight of the evidence, or whenever in the exercise of a sound discretion the trial judge thinks this action necessary to prevent a miscarriage of justice.’

The defendant here emphatically asserts that there has been a miscarriage of justice. For the reasons herein assigned this Court finds no such miscarriage of justice and therefore now denies the defendant's motion for a new trial for the reasons herein stated.

Under the first specification of the motion for a new trial the defendant argues that the plaintiff, Ralph Johnson, was guilty of contributory negligence as a matter of law and, of necessity, must argue that the evidence on this issue which was before the jury can lead only to that conclusion. Since this is an issue of substantive law in a diversity jurisdiction case, the Court must look to the law of Indiana for its determination. The defendant relies upon the so-called stopping statute which is I.C. 1971, 9-4-1-106, Burns' Ind.St.Ann. § 47-2114. The plaintiff testified that he stopped his vehicle at a point 20 to 30 feet from the railroad crossing in question ‘ where visibility was good’ . The plaintiff also testified that because of the weeds and undergrowth along the defendant's right-of-way he could only see approximately 200 or 300 feet down the track in the direction from which the defendant's train was approaching. The question of the plaintiff's visibility down the track was seriously disputed before the jury. Photographic evidence provided by the defendant was disputed before the jury in terms of the various positions of the camera and the various conditions under which the photographs were taken. (In fact, Judge Beamer referred to this very same dispute in denying a motion for summary judgment filed by the defendant.) The plaintiff argued before the jury that the defendant's photographs were not taken from a position and under circumstances to accurately describe the visibility that was available to the plaintiff at the point where the plaintiff says he stopped before this railroad track. The plaintiff also asserts that there were changes in the foliage and undergrowth from the time of the collision in question to the time the photographs were taken. There is evidence to support that assertion.

The jury had to determine whether the plaintiff in fact stopped as required by statute not less than 10 nor more than 50 feet from the nearest rail at this crossing, the jury had to determine the point at which any such stop may have occurred, if, in fact, it did occur, and the jury had to determine the range of visibility down the track which was available to the plaintiff at that time. Closely related to the question as to whether the plaintiff stopped and looked is the question of whether or not the train sounded its whistle and rang its bell as required by Indiana Statutes, I.C. 1971, 8-6-4-1, Burns' Ind.St.Ann. § 55-

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1243. There were four witnesses called by the plaintiff who were in the immediate vicinity of the crossing at the time the train approached and the collision occurred. All of these witnesses, who had no connection with either side of the case, testified in effect that they heard no whistle or bell on this train although it was possible to hear a whistle and bell in that immediate area. One of them testified that immediately after the collision the conductor of the train approached and said ‘ We hit a car; I got to get to the phone; we had to back up about two miles.’ These witnesses called by the plaintiff were vigorously cross-examined by defense counsel as to where their attentions were directed at the time in question. The engineer and fireman testified that they rang the bell and blew the whistle for this crossing precisely in accord with the statute and had done so for every other crossing on this train's trip from Garrett, Indiana to the crossing in question. The conductor, who was called as a witness for the defendant, was not asked to testify with reference to the sounding of the whistle and the ringing of the bell. There was evidence that this train could travel as fast as 90 miles per hour as it was loaded and equipped. The speed tape on this train, which was under the control of the defendant, was not produced.

The members of the train crew were vigorously cross-examined on the subject of the sounding of the whistle and the ringing of the bell and what the...

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