Kodack v. Long Island Rail Road Company, 340

• Citation: 342 F.2d 244
• Decision Date: 11 March 1965
• Docket Number: No. 340,Docket 29284.,340
• Parties: Harold KODACK, Plaintiff-Appellee, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. Marvin G. COURSEY, Third-Party Defendant. Action No. 1. Harold KODACK, Plaintiff, v. Marvin G. COURSEY, Defendant and Third-Party Plaintiff-Appellee, v. The LONG ISLAND RAIL ROAD COMPANY, Third-Party Defendant-Appellant. Action No. 2. Marvin G. COURSEY, Plaintiff-Appellee, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellant. Action No. 3.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

342 F.2d 244 (1965)

Harold KODACK, Plaintiff-Appellee, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. Marvin G. COURSEY, Third-Party Defendant. Action No. 1.

Harold KODACK, Plaintiff, v. Marvin G. COURSEY, Defendant and Third-Party Plaintiff-Appellee, v. The LONG ISLAND RAIL ROAD COMPANY, Third-Party Defendant-Appellant. Action No. 2.

Marvin G. COURSEY, Plaintiff-Appellee, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellant. Action No. 3.

No. 340, Docket 29284.

United States Court of Appeals Second Circuit.

Argued February 18, 1965.

Decided March 11, 1965.

William F. McNulty, New York City (George M. Onken, Jamaica, N. Y., on the brief), for appellant.

Isidore Halpern, Brooklyn (Frederick Travers, John D. Calamari, Martin Fogelman, New York City, of counsel), for appellee Kodack.

David Farber, New York City (Jerome A. Gottlieb, New York City, on the brief), for appellee Coursey.

Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.

HAYS, Circuit Judge:

This appeal involves three actions arising out of the collision at an unguarded grade crossing of a passenger train of the appellant railroad with a tractor-trailer combination owned and driven by Coursey. Kodack, an employee of the railroad acting as rear brakeman or flagman on the train, brought an action against the railroad under the Federal Employers' Liability Act¹ for injuries sustained when he was thrown to the floor of the last car, a passenger coach, by the impact of the collision. The railroad impleaded Coursey in this action. Kodack, a citizen of New York, sued Coursey, a citizen of Florida, on a common-law cause of action for negligence (Action #2) and Coursey impleaded the railroad, which counterclaimed for damage to its diesel locomotive. In Action #3 Coursey sued the railroad for injuries to his person and property and the railroad again counterclaimed in this action for its property damage. After nine days of trial the jury returned a special verdict in answer to six interrogatories framed by the trial judge. The jury verdict was that "negligence of the railroad was a proximate cause of the collision," that it was not proved that Coursey was negligent but also that he had not proved himself free of contributory negligence, and that Kodack had suffered damages of $100,000. The court thereupon dismissed all the claims except Kodack's FELA claim against the railroad in which Kodack was awarded $100,000.

The railroad raises three issues on appeal: (1) that the evidence of its negligence was insufficient to justify submission to the jury, (2) that the trial court should have declared a mistrial because of prejudicial remarks by Kodack's counsel in his opening statement, and (3) that the court erred in withdrawing the issue of Kodack's contributory negligence from the jury. We are not persuaded that there was error and affirm the judgment of the district court.

Kodack made two specific charges of negligence against the railroad: the failure of the train to give timely warning by whistle as it approached the unguarded grade crossing and the speed of the train which he claimed violated company rules and was excessive in view of the conditions at the crossing.

The railroad claims that the collision resulted wholly from the negligence of Coursey.

The collision occurred where Kroemer Avenue, a dirt road running north and south, crosses the railroad's east-west line about halfway between Calverton and Riverhead, New York, on the eastern end of Long Island. On either side of the main track is a spur track. The northern spur runs about 33 feet north of the main line at Kroemer Avenue. The only safeguards at Kroemer Avenue were two large wooden crossbuck warning signs about fifteen feet north and south of the spur tracks. The railroad had a whistle post 1,446 feet west of the crossing designating the point at which a passing train was required to blow the standard long-long-short-long crossing whistle.

Although the terrain at the main track crossing was flat and the track straight, and visibility along the track at the intersection unobstructed, a highway bridge crossed the track about 739 feet west of the crossing and its approaches obstructed the view west from Kroemer Avenue of one approaching the railroad from the north.

There was a railroad crossing sign about 15 feet north of the north spur track and about 50 feet north of the main line. Coursey, who had approached the crossing from the north, testified that he stopped at the sign and looked east and west before he started across the intersection. His view west along the line from that point would have been, according to the railroad's witness, only about 900 feet because of the highway bridge and approaches. He testified that he did not see any trains nor hear any whistle until he reached the main track. His truck was in first gear, of ten forward gears, and he was...