Dommer v. Pennsylvania R. Co., 8816.

• Decision Date: 28 June 1946
• Docket Number: No. 8816.,8816.
• Citation: 156 F.2d 716
• Parties: DOMMER v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

156 F.2d 716 (1946)

DOMMER v. PENNSYLVANIA R. CO.

No. 8816.

Circuit Court of Appeals, Seventh Circuit.

June 28, 1946.

Fred E. Zollars and Phil M. McNagny, both of Fort Wayne, Ind. (Barrett, Barrett & McNagny, of Fort Wayne, Ind., of counsel), for appellant.

Richard P. Tinkham, and John F. Beckman, Jr., both of Hammond, Ind., for appellee.

Before SPARKS, MAJOR and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This is an action by the administratrix of the estate of William L. Dommer to recover damages for decedent's death, allegedly caused by defendant's negligence at a railroad crossing in East Chicago, Indiana. Defendant denied the negligence and charged the decedent with contributory negligence which it claimed was the proximate cause of decedent's death. The trial judge submitted the case to a jury, who returned a verdict in favor of plaintiff. From the judgment upon this verdict defendant has appealed.

The questions raised are (1) was decedent guilty of contributory negligence as a matter of law? and (2) were certain instructions proper? There is no question as to defendant's negligence other than as it relates to the defense of contributory negligence.

The record discloses the following facts: William L. Dommer, a truck driver for the Standard Oil Company, was struck and killed by the Broadway Limited of the defendant railroad company while operating his truck across the Riley Road crossing in East Chicago, Indiana. At the place of the accident, Riley Road extended in an approximately north and south direction, and the tracks of the defendant railroad company approximately east and west, making substantially a right angle intersection. There were two main tracks, one eastbound, the other westbound, the westbound the northerly and the eastbound the southerly one. South of the southerly or eastbound track, at the intersection, was a spur track. The defendant maintained five flasher signals at this crossing, two on the south and three on the north side of the tracks. East of the road and slightly north of the southeast flasher light was a board fence about eight feet high which obstructed the view of highway drivers approaching from the the south, until they had passed the southeast flasher light.

The decedent approached the crossing from the south. He stopped his truck after he had crossed the spur track but before he came to the eastbound main track. There is no evidence as to whether he stopped his truck prior to crossing the spur track. While decedent was thus stopped, a freight train traveling east crossed the crossing. When the caboose of the freight train was forty to seventy-five feet east of Riley Road, decedent started his truck, slowly as it was heavily laden, and drove north. As he crossed the westbound track, his truck was struck by the Broadway Limited of defendant and he was killed.

In support of its contention that plaintiff's decedent was guilty of contributory negligence, defendant urgently insists there is no evidence that the flasher signals were not working and that the whistle of the train was not audible. Without relating the testimony in this regard, it is sufficient to state we have studied it and while it is not as convincing as it might be, we are of the view that it was such as to present a jury question. See Bartley v. Chicago & E. I. R. Co., 216 Ind. 512, 522, 24 N.E.2d 405. We must, therefore, proceed upon the theory that the flasher signals were not operating and that, even though sounded, the whistle was inaudible to decedent.

The Indiana law, which is controlling (Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487), is that contributory negligence is a question of fact for the jury, and it is only where the facts are undisputed and where a single inference can be drawn from the facts that the court can say, as a matter of law, that certain acts do or do not constitute contributory negligence. Cushman Motor Delivery Co. v. McCabe, 219 Ind. 156, 36 N.E.2d 769; Baltimore & Ohio R. Co. v. Reyher, Adm'x, 216 Ind. 545, 24 N.E.2d 284; Bartley v. Chicago & E. I. R. Co., supra.

Defendant contends that decedent failed to stop within fifty feet but not less than ten feet from the nearest track of the railroad crossing, as provided in Sec. 472114,¹ Burns' Indiana Annotated Statutes 1933, and therefore he was guilty of contributory negligence as a matter of law. It cites three cases in support of this proposition but none of them sustain such a view. All involve factual situations wherein the injured party drove onto the track or into the train without stopping at all, and when by looking he could have seen the approaching train for some distance. Such is not our case. Herein the decedent stopped within the prescribed distance of the main track. But defendant argues that he was required to stop within ten feet of the spur track. There is no proof as to whether decedent did or did not stop within ten feet of this track. Assuming such to be the requirement of the statute, it is of no benefit to the defendant for the reason that the burden was upon it to establish by proof the fact upon which it relies. Sec. 2-1025, Burns' Indiana Annotated Statutes 1933. In the absence of such proof, it appears unnecessary to decide whether the statute should be construed as contended for by the defendant.

Further, we are of the view that a violation of the statutory provision under discussion would not constitute contributory negligence as a matter of law. This was the holding of the Indiana court in Coats v. Strawmeyer, 107 Ind.App. 102, 21 N.E. 2d 433, in an analogous situation. In that case the defendant argued that the violation of a city ordinance was sufficient to establish contributory...