Fields v. Chicago, R. I. & P. Ry. Co.

• Citation: 532 F.2d 1211
• Decision Date: 07 April 1976
• Docket Number: No. 75-1243,75-1243
• Parties: Olive FIELDS, Executrix of the Estate of Elbert C. Fields, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1211

532 F.2d 1211

Olive FIELDS, Executrix of the Estate of Elbert C. Fields, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a corporation, Appellee.

No. 75-1243.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 8, 1975.

Decided April 7, 1976.

Richard C. Witzel, St. Louis, Mo., for appellant. Merle L. Silverstein and Mortimer A. Rosecan, St. Louis, Mo., also appeared on brief and appendix.

James D. Eckhoff and Robert R. Schwarz, St. Louis, Mo., also appeared on brief.

Before LAY, BRIGHT and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Plaintiff Olive Fields appeals from a judgment upon a jury verdict for defendant Chicago, Rock Island and Pacific Railroad Company in this action brought in the Eastern District of Missouri. The incident giving rise to the litigation was a railroad crossing collision at Durkee's Crossing in Grundy County, Illinois, in which plaintiff's decedent, Elbert C. Fields, was killed when his automobile, traveling north on Brisbin Road, was struck by defendant's train, traveling west on the northern track of defendant's double tracks. Illinois law is applicable. ¹

The complaint alleged that the collision was proximately caused by defendant's violation of Illinois statutes pertaining to warning bells and whistles and to the maintenance of grade crossings and by defendant's negligence in the operation of its train. The answer denied plaintiff's allegations of statutory violations and negligence and alleged that plaintiff's decedent was contributorily negligent. Contributory negligence is a complete bar to recovery in Illinois. Defendant's motion for a directed verdict was denied and the case was submitted to the jury, which returned a verdict for defendant.

In this appeal plaintiff assigns as reversible error two instructions given to the jury by the trial judge. We affirm.

The first questioned instruction, referred to as No. 14, relates to the defendant's allegation that the decedent was contributorily negligent. It reads:

It is generally recognized that railroad crossings are dangerous places and one crossing the same must approach the track with the amount of care commensurate with the known danger in this connection. The Court instructs you that if you find and believe from the evidence that:

1. Decedent knew and was aware of the crossing,

2. Decedent stopped or slowed his motor vehicle in the immediate vicinity of the southernmost track, and in the exercise of ordinary care could have stopped in a safe position, and

3. At such time as the decedent stopped or slowed his motor vehicle that he was in a position of safety and if in the exercise of ordinary care for his own safety, saw, or should have seen, heard or should have heard, the train or the train whistle and thereby have known the train was so close as to constitute a hazard and danger to proceed across said tracks, and further the decedent did then proceed across said tracks, and if you find that such conduct on the part of the decedent constituted contributory negligence and if you further find that such contributory negligence caused or contributed to cause said collision then your verdict shall be in favor of the defendant.

Plaintiff argues that this instruction removed from the jury's consideration the question whether the decedent acted reasonably, as it eliminated from consideration all actions other than a certain course of conduct, which included stopping, which a reasonably prudent man might have taken under the circumstances. Plaintiff submits that Illinois law requires that the jury determine whether decedent's particular conduct was reasonable, and that stopping at a railroad crossing is not essential to reasonable conduct.

Relatedly, plaintiff contends that the instruction placed undue emphasis upon decedent's ability to stop and that by use of the word "could" instead of "would" or "should" in paragraph 2 the district court rewrote the concept of ordinary care so as to adopt a "possibility" instead of a "duty" standard, thus requiring the jury to base its finding as to contributory negligence upon the decedent's ability to stop his vehicle. Evidence favorable to the defendant tended to show that the decedent had stopped or appreciably slowed his automobile near the south tracks and thereafter had proceeded onto the north tracks into the path of the train, which struck the decedent's automobile despite efforts of the crew to halt the train. A party is entitled to an instruction on his theory of the case provided that a proper request is made and that there is evidence to support it. See, e. g., Emery v. Northern Pacific R. R., 407 F.2d 109 (8th Cir. 1969); Halladay v. Verschoor, 381 F.2d 100 (8th Cir. 1967); Town of Radcliffe, Iowa v. Carroll, 360 F.2d 321 (8th Cir. 1966). Of course, it must not exclude fair presentation of other theories also based upon credible evidence.

As we view Instruction No. 14, it fairly presented defendant's theory that decedent, who was acquainted with the crossing, stopped or nearly stopped short of the crossing in a position of safety, then proceeded negligently into the path of the train and that such negligence caused or contributed to decedent's injuries and death.

We acknowledge that editorially the instruction might have been improved, as for example by omission from paragraph 2 of the words "and in the exercise of ordinary care could have stopped in a safe position", but we simply cannot agree in these circumstances that use of the word "could" prejudiced plaintiff.

It is not the stopping or possibility of stopping that is ultimately condemned by the instruction. Rather, it is the negligent departure from a position of safety into the path of the oncoming train that the instruction posits as a basis for a finding of contributory negligence.

We find nothing in the Illinois cases cited by plaintiff contrary to the conclusion we have reached. They simply are not directly in point or are inapposite.

Decisions interpreting federal and Illinois law recognize that when a portion of a jury instruction is assigned as error, the reviewing court must look to the instruction as a whole. See Jiffy Markets, Inc. v. Vogel,340 F.2d 495, 500 (8th Cir. 1965), and Dreckman v. Flores, 331 F.2d 221, 222 (7th Cir. 1964), and cases cited. This general rule is applicable to all of plaintiff's allegations, substantive as well as procedural, ² as each allegation relates to a portion of the over-all charge to the jury.

In the jury instructions, which are contained in some 131/2 pages of the transcript, there are several references to the "reasonable man" concept other than the one which refers to whether the decedent "could have stopped." In paragraph 3 of the instruction set out above, the court indicated that the jury might or might not find that the described course of conduct constituted contributory negligence. Elsewhere, negligence and ordinary care are defined by reference to acts or omissions of "a reasonably careful person." Twice the court instructed that "(t)he law does not say how a reasonably careful person would act under the circumstances. That is for you to decide."

The trial court was careful to warn against any overemphasis of certain evidence and that the court's purpose was "to express no opinion upon the facts of this case." The court admonished the jury that the jury was to...