Pearson v. Baltimore & Ohio R. Co.

• Decision Date: 29 January 1953
• Docket Number: No. 10626.,10626.
• Citation: 200 F.2d 569
• Parties: PEARSON v. BALTIMORE & OHIO R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

200 F.2d 569 (1952)

PEARSON v. BALTIMORE & OHIO R. CO.

No. 10626.

United States Court of Appeals Seventh Circuit.

December 31, 1952.

Rehearing Denied January 29, 1953.

Cassatt Martz, Indianapolis, Ind., Martz, Beattey & Wallace, Indianapolis, Ind., for defendant, Baltimore & Ohio R. Co.

Thomas M. Scanlon, Indianapolis, Ind., for appellee.

Before DUFFY, LINDLEY and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

This is an appeal from a judgment entered on a verdict in favor of the plaintiff, Phyllis H. Pearson, in an action against the defendant, The Baltimore and Ohio Railroad Company, to recover damages for personal injuries resulting from a railroad crossing collision between an automobile driven by the plaintiff and the locomotive of a train operated by the defendant.

The complaint alleged that the collision was caused by the negligence of the defendant in failing to comply with city ordinances relating to the speed of trains, the sounding of a locomotive bell and the maintenance of crossing signals. The plaintiff's allegations of negligence were denied, and in a second paragraph of answer the defendant filed a counterclaim for damage to rolling stock and equipment, charging that plaintiff negligently drove her automobile into and against the defendant's locomotive.

First at the close of the plaintiff's evidence and again after all the evidence was in, the defendant moved for a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law. The motions were denied by the District Court and the case was submitted to the jury. The jury rendered a general verdict in favor of the plaintiff on her complaint and against the defendant on its counterclaim. The jury also answered special interrogatories. Damages were assessed by the jury in the amount of $13,000. The judgment was thereupon entered from which this appeal is taken.

Considering the undisputed evidence, the jury's answer to the special interrogatories and resolving conflicts in the testimony favorably to the plaintiff, the following facts could have been properly found by the jury:

The accident occurred in the City of Indianapolis, Indiana, on December 9, 1949, between 8:00 and 8:20 A.M. The defendant's single track railroad runs in an easterly and westerly direction through the city and is intersected in the eastern part of the city by a street running generally north and south, known as Arlington Avenue. It was at this intersection that the collision occurred. The defendant's train was traveling east, and the plaintiff's automobile was traveling north on Arlington Avenue.

To the south of the intersection, the street is lined by houses on either side, the house nearest the crossing on the west side extending to within 59 feet of the track. A plat of the location, Defendant's Exhibit H, indicates a house directly across the street on the east side, perhaps somewhat nearer the track. These houses are located a distance of 75 to 78 feet away from the center of the street.

It is apparent, then, that from a point on Arlington Avenue a considerable distance south of the intersection, the east and west track approaches to the crossing are largely obscured from view. Only the space between the two houses located nearest the track and on opposite sides of the street affords one approaching from the south a view of the crossing and portions of the adjacent track extending to the east and to the west. However, the range of vision encompassing the east and west track approaches, of the traveler proceeding north, is progressively expanded as he approaches the crossing. Thus, from a point in the Arlington Avenue pavement 100 feet south of the intersection, an object may be seen on the track 180 feet to the west; at 60 feet south, visibility of the track approach to the west increases to 821 feet.

It is not considered to be material that at the time of the accident here involved, a number of railroad cars were located on a siding immediately south of the track, since the nearest car was 600 feet west of the crossing.

As required by an ordinance of the City of Indianapolis, the intersection was equipped with a signal bell to warn motorists of approaching trains. The signal here was of the wig-wag type, consisting of a bell, a metal disc on an extended arm and a red light in the center of the disc. Such a signal is connected to an electric track circuit, so that when the switch is actuated by an approaching train, the disc swings back and forth, the red light functions and the bell rings.

Other ordinances in effect at the time of the collision prescribed a speed limit of 20 miles per hour on trains operating within the area in which this crossing was located, and required the ringing of a bell on a moving locomotive.

In addition, there was prohibited by ordinance the sounding of a locomotive whistle within the corporate limits of the city, "except as a signal of danger that cannot be given any other way * * *." This ordinance must be considered in connection with a statute of the state of Indiana, Burns' Ind.Stats.Ann. (1933, 1942 Repl.) § 10-3912, which states that a whistle shall be sounded upon the approach by a locomotive to any public highway within the state; subject, however, to ordinances regulating the management of trains within the corporate limits of a city or town.

The plaintiff is a young woman, who at the time of the events here related was 24 years of age, and an experienced driver. She was a resident of Indianapolis, and was employed as a schoolteacher at Carmel and Fishers, Indiana, suburban towns located a short distance outside the city. She was thoroughly familiar with the crossing involved, for it was along the route she regularly traveled in going to and from school, and she had driven an automobile across it at least 40 times within two months prior to the accident.

On the morning of the accident the plaintiff was on her way to school, driving her husband's automobile, a 1949 Ford, purchased new just six weeks previously. The brakes on the car were in good condition and the pavement was dry. As the plaintiff traveled north on Arlington Avenue towards the intersection, she was moving at a speed of 25 to 30 miles per hour. Unknown to her, the defendant's train was traveling towards the crossing from the west, also at a speed of 25 to 30 miles per hour. The locomotive bell was not ringing and the signal at the crossing was not functioning, thus failing to indicate the approach of the train. The wig-wag was not operating, the light in the signal was not illuminated and the bell on the signal was not ringing.

The defendant's engineer, although he saw the plaintiff's car as it neared the crossing and continued to watch it until the moment of the impact, did not at any time sound the locomotive whistle.

The plaintiff, when she was still some distance from the crossing, "could see all the track that was visible between the house on the left side of the road and the house on the right side." She observed that the signal was not functioning. As she approached the crossing, she "continued to watch the signal up to the point where you could see to the right and to the left beyond the houses," and then "looked to the right and to the left, always depending upon the signal." When she looked down the track to the west, after first looking to the east for "about a second," or "long enough to assure myself that there was not anything coming," she saw the defendant's train. At this point, the plaintiff was 60 feet south of the crossing and the front of the defendant's locomotive was 90 to 150 feet west of the Arlington Avenue pavement line.

Upon seeing the train the plaintiff applied her brakes, turned off the ignition and threw herself down on the front seat of the car. The brakes began to function at a distance of 15 to 18 feet south of the track, as shown by the skid marks on the pavement which extended to within a foot and a half of the south rail. The plaintiff's car, still in the east lane of the pavement, struck the side of defendant's locomotive at the rear part of the right front cylinder. The car was not stopped at any point on Arlington Avenue prior to the moment of impact.

Since federal jurisdiction in this case arises by reason of the diversity of citizenship of the parties, the law of Indiana is, of course, controlling. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

The defendant apparently does not, as it obviously cannot, seriously deny its own negligence. There is evidence in the record from which the jury properly could have found that the defendant violated a state statute directing the sounding of a locomotive whistle, and violated Indianapolis city ordinances governing the speed of trains, the sounding of locomotive bells and the proper maintenance of crossing signals.

A violation of the statutory duties so imposed is, under Indiana law, negligence per se, according a right of action to anyone injured by reason of such violation. Bartley v. Chicago & E. I. R. Co., 216 Ind. 512, 522, 24 N.E.2d 405; New York Central R. Co. v. Pinnell, Adm'x, 112 Ind.App. 116, 126, 40 N.E.2d 988; Chicago, St. Louis & Pittsburg R. Co. v. Fenn, 3 Ind.App. 250, 253, 29 N.E. 790. Of course, the violation of the duty imposed by the statute or ordinance must constitute a proximate cause of the injuries of which the plaintiff complains.

It is the defendant's principal contention that a proximate cause of the plaintiff's injuries was her own contributory negligence; that this is apparent from the facts as related above; and that the District Court, therefore, erred in refusing to direct a verdict for the defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law.

In considering the issue thus presented, we are to be mindful of the Indiana rule that, ordinarily, contributory negligence is a question of fact for the jury. This is so, where the...