Foster v. New York Central System

• Citation: 402 F.2d 312
• Decision Date: 31 October 1968
• Docket Number: No. 16802.,16802.
• Parties: Billy L. FOSTER, Plaintiff-Appellant, v. NEW YORK CENTRAL SYSTEM, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

402 F.2d 312 (1968)

Billy L. FOSTER, Plaintiff-Appellant, v. NEW YORK CENTRAL SYSTEM, Defendant-Appellee.

No. 16802.

United States Court of Appeals Seventh Circuit.

October 31, 1968.

Myrl O. Wilkinson, Dix, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, Ind., for plaintiff-appellant.

Jerdie D. Lewis, Terre Haute, Ind., for defendant-appellee, Richard O. Olson, Chicago, Ill., Lewis & Lewis, Terre Haute, Ind., of counsel.

Before CASTLE, Chief Judge, DUFFY, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

CASTLE, Chief Judge.

This is a personal injury action originally brought in the Superior Court of Vigo County, Indiana, which defendant removed to the District Court on the basis of diversity of citizenship. The Court below granted defendant's motion for summary judgment and plaintiff appeals.

Plaintiff was injured when he was thrown from the Honda motorcycle on which he was riding. As a result of his injuries, plaintiff has retrograde amnesia and can remember nothing about the accident. Moreover, there were no eye witnesses to the occurrence. The only facts relied upon by plaintiff were as follows: Defendant owns a railroad track which crosses First Street at the intersection of First and Mulberry streets in Terre Haute, Indiana; this track is, contrary to Indiana law, improperly graded and is protruding above the grade. Plaintiff was found some sixty feet south of the track and the motorcycle was found somewhat closer to the track on the south side of First Street; there had been previous motorcycle accidents at this crossing; plaintiff's motorcycle had no defects; the weather was clear and the visibility was excellent; there were no skid marks; the street was straight and the pavement was dry.

Although there was no evidence that the faulty grade was the cause of the upsetting of plaintiff's motorcycle, plaintiff contends that the jury was entitled to draw such an inference. We disagree.

The courts of Indiana and this Circuit, in interpreting Indiana law, have held that when a plaintiff cannot show the manner in which the accident took place, the unexplained circumstances do not permit the jury to speculate or draw inferences as to the occurrence. The most recent decision of which we are aware is Iwaniuk v. Bethlehem Steel Corporation, 402 F.2d 309 In that case, the plaintiff was able to prove only that the decedent was seen walking on an allegedly defective catwalk, and was next seen lying on the ground beneath it. This Court reversed a jury verdict for the plaintiff stating: "The total absence of evidence as to the cause of plaintiff's decedent's fall compels the conclusion, under the Indiana law, that plaintiff failed to sustain the burden of proof on the issue of negligence and of proximate...