Kelsay v. Consolidated Rail Corp.

• Decision Date: 21 November 1984
• Docket Number: No. 83-2977,83-2977
• Citation: 749 F.2d 437
• Parties: 16 Fed. R. Evid. Serv. 1296 Maria KELSAY, individually and as Personal Representative of the Estate of Bruce Kelsay, Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION and National Railroad Passenger Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 437

749 F.2d 437

16 Fed. R. Evid. Serv. 1296

Maria KELSAY, individually and as Personal Representative of the Estate of Bruce Kelsay, Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION and National Railroad Passenger Corporation, Defendants-Appellees.

No. 83-2977.

United States Court of Appeals, Seventh Circuit.

Argued April 17, 1984.

Decided Nov. 21, 1984.

Charles A. Asher, South Bend, Ind., for plaintiff-appellant.

Edward L. Murphy, Jr., Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., for defendants-appellees.

Before PELL, BAUER and POSNER, Circuit Judges.

PELL, Circuit Judge.

Plaintiff, Maria Kelsay, the widow and personal representative of Bruce Kelsay, appeals from a judgment entered after a jury verdict in favor of defendants, Conrail and Amtrak. The plaintiff does not challenge the sufficiency of the evidence to support the verdict, but relies on asserted trial errors, advancing six instances of claimed reversible error by the district court, three with respect to evidentiary rulings and three with respect to instructions that were either given or refused. Of the questions presented, we find only three issues to be of sufficient significance to require extended discussion. First, plaintiff claims that the district court abused its discretion when it excluded both eyewitness and expert testimony, as well as police reports, concerning two prior accidents at the same railroad crossing where Bruce Kelsay died. Second, plaintiff claims that the district court committed reversible error when it allowed various witnesses to testify as to their understanding of the significance of a white line painted on the road near a grade railroad crossing, particularly in light of the court's refusal to give limiting instructions concerning that testimony. Finally, plaintiff asserts error in the instruction relating to the duty of a driver approaching a railroad crossing when his view is obstructed.

I. THE FACTS

The lawsuit filed by plaintiff arose out of an accident causing the death of her husband. The facts surrounding the accident are essentially undisputed. On September 8, 1981, Kelsay, then employed by G.T.E. Corporation, left his employer's premises in Wabash, Indiana, followed by another G.T.E. employee, James Clark. Both men drove Ford vans, which have a wide door post on their right side directly behind the passenger's seat. This door post partially restricts the vision of a driver who looks slightly back and to the right. Clark testified that a driver of the type of vehicle Kelsay was driving would also have a problem because of the noise created by the more than 100 tool and equipment items in the truck. The two men left the company office at 7:15 a.m., headed to a work assignment north of Atwood, Indiana, a town about forty miles from Wabash. The morning was clear and sunny, and the pavement was dry at all relevant places.

Upon arriving in Atwood, Kelsay and Clark, for some reason not apparent in the record, chose to continue northwardly on Prairie Street, although both Harrison and Prairie Streets crossed the railroad tracks. The Harrison Street crossing, one block east of Prairie, had both automatic flashers and gates. The intersection with two parallel tracks on Prairie Street does not form a ninety degree angle; rather, the track runs from the east-southeast to the west-northwest forming a seventy-degree angle with northbound Prairie Street. Thus, instead of merely looking directly to the right to see if a train was approaching from that direction, a motorist would have to look slightly behind himself as he looked to the right. The street rises five feet over the final fifty feet immediately south of the railroad tracks. There are no active safety mechanisms at the Prairie Street crossing. The crossing, however, was protected by the statutorily required round railroad disc warning signs with crossbucks nearer the crossing. There was also a white line across the pavement thirty-one feet south of the crossing.

Amtrak owned and employees of Conrail operated the train involved in the accident that resulted in Kelsay's death. The train left Fort Wayne, Indiana, at about 7:30 a.m., approximately one and one-half hours behind schedule. As it approached Atwood from the east just more than an hour later, the train was going fifty-eight miles per hour. The train's engineer and fireman testified that Kelsay never slowed down over the last fifty feet as the road rose to the level of the crossing. On direct examination, Clark testified that after turning onto Prairie, Kelsay had gained speed to approximately fifteen miles per hour, that Kelsay put his brakes on "before going up to the approach" and then the brakes came off and he was not going over ten miles per hour as he was actually on the crossing. On cross-examination, however, Clark testified that Kelsay's speed remained "steady" from the intersection up to the crossing. The cessation of the braking occurred, according to Clark, as the front wheel of the Kelsay truck reached the first rail. The train was occupying the other, or northernmost set of tracks, and, of course, that is where the accident took place.

The engineer testified he had been giving the statutorily required warnings as the train approached the crossing but interrupted the normal whistle pattern in order to give an emergency short series of sharp blasts upon the whistle in order to get Kelsay's attention. Upon realization that Kelsay might not stop, the engineer gave a full emergency application of the brakes, even though this under the circumstances was a futility; Kelsay had already started to cross the tracks to the south of the one on which the train was operating. The locomotive hit the van, apparently killing Kelsay instantly and then dragging the van west-northwest before finally stopping. There were no skid marks on the pavement to indicate that Kelsay ever applied his own brakes, nor was there any other evidence that he took any evasive action. Also at all pertinent times the locomotive's two strobe headlights were functioning in an on position. The engineer was able to see Kelsay's face for a short distance and Kelsay was never seen to move his head, but "just kept looking right straight ahead."

In addition to evidence on the angle of the intersection and the effect of the early morning sun on a driver's ability to discern a train approaching from the east-southeast, the plaintiff tried to establish the ultrahazardousness of the crossing through evidence of visual obstructions to a view of the railroad tracks. The southeast quadrant formed by the intersection did contain foliage, although none of this was on the defendants' right of way, and the extent of the visual impediment presented by this foliage was vigorously disputed. Plaintiff introduced evidence that the first totally unobstructed view of a sufficient distance to reveal an oncoming sixty miles-per-hour train did not occur until thirty-one feet south of the crossing. Defendant introduced evidence that Kelsay should have been able to see at least some portion of the train at all times during his approach to the crossing. There were various estimates of the speed at which Kelsay approached the crossing and also evidence of how much distance that it would take a driver to perceive the train and then stop his vehicle at each of those speeds. Some of these distances were substantially greater than the distance that plaintiff asserted provided the first unobstructed view of the tracks, and, of course, some were less.

II. THE TRIAL

Plaintiff alleged two forms of negligence on the part of defendants--one in the operation of the train that struck Kelsay's van and one in the failure of defendants to install safety devices adequate to meet the needs of the allegedly ultrahazardous crossing. To prevail on the second prong, it would have been necessary for plaintiff not only to introduce evidence showing the crossing was ultrahazardous but that the defendants had knowledge of that status. To return a verdict for defendants, the jury must have found that the train sounded its whistle in accordance with statutory requirements. Apparently because the evidence was disputed, plaintiff has not alleged error in the jury's failure to find defendants liable due to the operation of this particular train. The second form of alleged negligence, however, is involved in the claim of trial error. Plaintiff attempted to establish that the crossing was ultrahazardous, that the defendants knew or should have known of the ultrahazardous condition of the crossing, and that defendants were negligent in failing to mitigate the ultrahazardousness by installing active warning devices at the crossing.

As previously delineated, plaintiff introduced evidence of a number of factors to show that the crossing was ultrahazardous: the angle of the crossing; the degree of the grade; the position of the sun in the early morning; and, the various visual obstructions. The defendants introduced no testimony to counter plaintiff's evidence that the configuration of the crossing had remained unchanged since 1950. Although Clark testified that in his opinion the sun created a visibility problem for Kelsay, two other witnesses called by the plaintiff, one a reconstruction expert and the other, the safety director of Kelsay's employer, testified respectively that the sun was going to be no problem for Kelsay and that the sun was not shining directly in Kelsay's eyes.

In an effort to establish the second predicate to negligence liability under a theory of ultrahazardousness, plaintiff twice attempted to introduce evidence that defendants knew or should have known that the crossing was ultrahazardous. Both attempts to establish notice centered around the fact that there had been two prior fatal accidents at the Prairie Street crossing--one on October 20, 1951, and the other on July 2, 1968. The plaintiff contended the prior accidents were...