Smith v. Chesapeake & Ohio Ry. Co.

Citation778 F.2d 384
Decision Date05 December 1985
Docket NumberNo. 84-2323,84-2323
PartiesWilma Jean SMITH, Plaintiff-Appellant, v. CHESAPEAKE & OHIO RAILWAY CO., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Thomas R. Ruge, Indianapolis, Ind., for plaintiff-appellant.

Victor L. Frost, II, Frost & Hugon, Indianapolis, Ind., for defendant-appellee.

Before COFFEY and FLAUM, Circuit Judges, and WYATT, Senior District Judge. *

COFFEY, Circuit Judge.

The plaintiff, Wilma Jean Smith, appeals a jury verdict finding the defendant, the Chesapeake and Ohio Railway Company ("Chesapeake"), not liable for injuries suffered by Smith as a result of a collision between an automobile in which Smith was a passenger and one of the Chesapeake's trains. We affirm.

I

The record reveals that on November 18, 1980, Smith was a passenger in an eastbound car driven by a Robert Chambers when Chambers' car collided with a northbound Chesapeake freight train at the Waterfall Road railroad crossing in Richmond, Indiana. This railroad crossing is cut into a small hill, and traffic traveling eastbound toward the crossing approaches it on a slight downhill grade at a 130 degree angle to the tracks. As a vehicle travels east approaching the crossing, the driver's vision of the tracks south of the crossing is obscured by shrubs and trees along the right side of the road. At trial conflicting evidence was presented concerning at what point a driver approaching the tracks from the west would have a clear view of the tracks south of the crossing. For example, a Richmond police officer testified that when a car is approximately ten feet west of the crossing he can see "maybe fifty feet" down the tracks to the south. Chesapeake, however, offered evidence that at approximately twenty feet from the crossing one can see an approaching train 660 feet down the track.

At the time of the collision, the crossing was equipped with a standard crossbuck sign and silent flashers. The investigating police officer observed that these flashers were operating as he approached the crossing immediately after the accident. Pursuant to Indiana law, train crews are required to sound the train's horn intermittently from a point 1500 feet from the crossing until the train traverses the crossing. At trial, the train engineer testified that he sounded the train's whistle approximately 1/4 mile from the crossing and that the train's headlight was on and the train's bell was ringing continuously on approach. A crew member testified that immediately prior to the impact he observed the flashers operating as the train approached the crossing. 1 The automatic flashers are electronically activated as the train passes over a contact point in the tracks approximately 1200 feet from the crossing. Chambers testified that he neither observed the warning lights flashing nor heard the train's horn. He testified that he was traveling at approximately 10 miles per hour as he approached the crossing and reduced his speed as he approached the tracks. Just as he reached the edge of the tracks, Smith shouted to him that a train was approaching; however, Chambers did not react quickly enough to prevent the collision. 2 The asphalt road on the day of the accident was wet, as there had been a snowfall the night before. Earlier on the day of the accident, Chambers changed a flat right front tire with a spare "bald" tire. 3 Two days later, while discussing the accident with the Richmond police, Chambers admitted that he "slid" into the crossing. 4

At the close of evidence, the jury was instructed that under Indiana law a railroad has a duty to determine if a crossing is extra hazardous and to provide reasonable and adequate warning to alert motorists of an approaching train. The court also submitted several jury instructions quoted from Indiana statutes and a jury instruction on contributory negligence. Smith complains that the evidence submitted at trial did not justify a contributory negligence jury instruction, and that jury instructions quoting Indiana statutory law were erroneous since they misled the jury as to the duty of the railroad to assess the hazardousness of the railroad crossing. Thus, Smith requests a new trial.

II

Pursuant to Indiana law, a railroad has a duty to protect the public from extrahazardous railroad crossings and is required to provide adequate warning to highway travelers of approaching trains. The question of whether or not a crossing is extra hazardous and whether the railroad has provided reasonable warning under the circumstances is a question of fact for the jury. Central Indiana Railway Company v. Anderson Banking Company, 252 Ind. 270, 274, 247 N.E.2d 208, 211 (1969); Stevens v. Norfolk and Western Railway Company, 171 Ind.App. 334, 339, 357 N.E.2d 1, 4 (1976). In this case, the district court's instruction as to the Railroad's duty to determine if the crossing is extra hazardous and to provide reasonable warning was in accord with Indiana law:

INSTRUCTION NO. 15

"The defendant Chesapeake and Ohio Railway Company has a duty to give reasonable and adequate warning to the traveling public of the approach of trains across public highways. Although the track of the railroad is of itself a warning of danger to a person approaching it, the defendant has a duty to exercise reasonable and ordinary care by adopting a reasonably safe and effective mode, commensurate with the danger at a particular crossing, of warning travelers of the approach of trains.

In determining whether the warning devices as they existed on November 18, 1980 provided reasonable and adequate warning to the traveling public of the approach of the train, or whether the particular railroad crossing was extrahazardous, you may consider the facts, if any, concerning the presence or absence of warning signals, gates and bells, together with all other circumstances concerning the crossing, such as obstructions to view, if any, the nature and gradation of the terrain immediately adjacent to the crossing, the angle at which the tracks intersect the highway, the time of day, the speed of the train, the near situation of trees, vegetation and the like, the curves in the track, and the frequency with which travelers pass over the crossing.

If you find from a preponderance of the evidence that the railroad crossing was extrahazardous, then you may consider whether or not the defendant provided reasonable warning on the occasion in question of the approach of the train. If you find that defendant failed to provide reasonable warning under the circumstances, then you may find the defendant negligent for failing to do so."

The district court, however, further instructed the jury:

"INSTRUCTION NO. 22A

You are instructed that at the time of the accident in question, the following Statute of the State of Indiana was in effect:

'Local authorities, in their respective jurisdictions, shall place and maintain such traffic control devices upon highways under their jurisdiction ... as they may deem necessary....'

I.C. 1971, 9-4-1-32

* * *

* * *

INSTRUCTION NO. 22B

You are instructed that at the time of the accident in question, the following statute of the State of Indiana was in effect:

(a) No person shall place, maintain, or display upon or in view of any highway any unauthorized sign, signal, marking, or device which purports to be, is an imitation of or resembles an official traffic control device or railroad sign or signal, or which attempts to direct the movement of traffic....

(f) Every such prohibited sign, signal, or marking is declared to be a public nuisance and the authority having jurisdiction over the highway is empowered to remove the same or cause it to be removed without notice.

I.C. 9-4-1-38
INSTRUCTION NO. 22C

You are instructed that at the time of the accident in question, the following Statute of the State of Indiana was in effect:

Extra-hazardous grade crossing.--The public service commission of Indiana shall have the exclusive power and it shall be its duty, upon proper petition by any five (5) or more citizens of this state or the board of county commissioners of any county of this state to conduct a hearing to declare as dangerous or extra hazardous any grade crossing in this state which said commission shall find to be of such a character as that the safety of the users of such highway requires the installation of automatic train-activated warning signals or other crossing safety devices.

I.C. 1971, 8-6-7-1

You are further instructed that at the time of the accident in question, the Public Service Commission of Indiana had not made any order, requirement, or determination that the Waterfall Road grade crossing in Richmond, Indiana was dangerous or extrahazardous or that the character of said crossing required the installation of crossing gates or other crossing safety devices."

These instructions were derived in part from the Indiana Statutes. According to Smith's interpretation, jury instructions 22A, B, and C improperly suggest to the jury that the public authorities and not the railroad are the ones responsible for determining if adequate signals are provided at the crossing and thus the instructions given negated any duty on the part of the railroad to evaluate the danger at the crossing. Pursuant to Fed.R.Civ.P. 61, when assessing the adequacy of jury instructions given at trial, we consider not only "the instructions as a whole, but [also] ... the opening statements, the evidence and the closing argument" to determine if the jury was adequately informed of the applicable law. Alloy International Co. v. Hoover-NSK Bearing Co., 635 F.2d 1222, 1226 (7th Cir.1980) see also Simmons, Inc. v. Pinkerton's, Inc., 762 F.2d 591, 595 (7th Cir.1985); Qasem v. Kozarek, 716 F.2d 1172, 1180 (7th Cir.1983). 5 With this standard in mind, we turn to the jury instructions given in this case.

Specifically, Smith contends that since jury...

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