Lones v. Detroit, Toledo and Ironton Railroad Company

• Decision Date: 31 July 1968
• Docket Number: No. 17912.,17912.
• Citation: 398 F.2d 914
• Parties: Diane LONES, a minor, by her father and next friend, Homer J. Lones, Homer J. Lones and Metropolitan Life Insurance Company, Plaintiffs-Appellees, v. DETROIT, TOLEDO AND IRONTON RAILROAD COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

398 F.2d 914 (1968)

Diane LONES, a minor, by her father and next friend, Homer J. Lones, Homer J. Lones and Metropolitan Life Insurance Company, Plaintiffs-Appellees, v. DETROIT, TOLEDO AND IRONTON RAILROAD COMPANY, Defendant-Appellant.

No. 17912.

United States Court of Appeals Sixth Circuit.

July 31, 1968.

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John W. Hackett, Jr., Toledo, Ohio (Shumaker, Loop & Kendrick, Donald M. Mewhort, Jr., Toledo, Ohio, on the brief), for appellant.

Donald P. Traci, Cleveland, Ohio (Spangenberg, Hasenflue, Shibley & Traci, Cleveland, Ohio, on the brief), for appellees.

Before WEICK, Chief Judge, CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

Plaintiffs-Appellees brought this suit originally in the Court of Common Pleas of Allen County, Ohio, to recover for injuries sustained by the minor Plaintiff as the result of a railroad crossing accident. On a motion by the Defendant-Appellant, the case was removed to the United States District Court for the Northern District of Ohio, which entered judgment on a jury verdict for the Plaintiffs. Defendant-Appellant has appealed that judgment alleging numerous grounds for error. We find no reversible error in the proceedings below, however, and affirm the judgment of the District Court.

The accident occurred in Uniopolis, Ohio, at a two-track grade crossing, consisting of a main track and an elevator sidetrack spaced about eighteen feet apart. The railroad track ran north and south, intersecting with the east-west Highway 67. On the day of the accident, as the result of a crew working at a grain elevator area near the crossing, the crossing signal had been activated for 20-25 minutes prior to the accident. Diane Lones, the minor Plaintiff, 15 years 10 months of age, and a friend, Melanie Golden, had been riding their bicycles in the area during the time that the crew was working near the crossing and had passed over the grade crossing against the signal at least one time before the accident. Some of the train crew had seen the children playing at or near the crossing.

Just before the accident Diane and Melanie met Jimmie Evans and the three were playing in an elevator area east of the grade crossing when Diane decided to ride over to the crossing. As she approached the crossing the train crew was in the process of making a "flying switch": a maneuver by which cars at the end of the train are switched onto the sidetrack with sufficient momentum to permit coupling with other cars on the sidetrack. In this case the train was traveling from south to north. The evidence is in conflict whether the train engines were approaching the crossing, on the crossing, or just past the crossing when Diane rode upon the sidetrack. At this time a cut of three cars south of the crossing was floating freely down the sidetrack as a result of the flying switch maneuver. One crew member was at the rear of the first car of the cut of cars to brake the cut and otherwise to control the coupling of the cut with other cars north of the crossing. This crew member's view of the track in front of the cut was severely restricted; he could see only a limited amount of the track even by leaning out to the side of the cut.

Evidence is in conflict whether Diane stopped her bike on the sidetrack or between the two tracks. Likewise, evidence is conflicting whether the engineer or other crew members saw Diane on the crossing as the train approached the crossing, when the train came onto the crossing, or after the train was on the crossing. In any case, as a result of the noise of the diesel engines in front of her Diane did not hear the cut of cars coming down the sidetrack and became aware of the danger only from the shouted warnings of either her friends, who had also come down near the crossing, or the members of the train crew. In response to the warnings Diane either stepped backward slightly or turned to look over her shoulder, but she saw the danger too late to avoid being struck by the cut of cars.

This brief factual outline will be sufficient to deal with the objections raised by the Defendant-Appellant; for due to the nature of the objections raised only the evidence most favorable to the Plaintiffs can properly be considered by this Court.

In this case, as in any diversity action, in considering each issue raised by the Defendant-Appellant we must first answer the threshold question as to what body of law the Court must look to ascertain the standard to be applied in resolving that particular issue. The doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), is not all-pervasive; where the doctrine begins usually presents no problem, but where the emanations of that doctrine cease to affect the proceedings in a federal trial court is a more perplexing determination. Compare Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), with Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

Matters that can clearly be labeled substantive, such as the standard to be applied in determining whether the Defendant-Appellant was negligent, are of course, controlled by state law. We do not take it, however, that the Defendant-Appellant seriously contends that under the facts of this case it could not have been found negligent under the law of Ohio. The flasher signals were activated for a period of 20-25 minutes. During that time several crewmen had seen children playing near the crossing, and at least one crewman had seen children passing over the crossing in violation of the flasher signals. In spite of this knowledge, the crew switched a cut of cars onto the sidetrack under the control of a crewman whose view of the track was severely restricted. No special precautions were taken; no flagman protected the crossing; and from their testimony, apparently the crew did not even bother to keep a special lookout for children. The engine blocking the crossing might prevent automobile drivers from coming onto the crossing, but it would have no effect on the danger to children that the crew knew, or should have known, existed at that time. In Ohio the care to be observed in avoiding injury to children is greater than the care required to avoid injuring adults. Cleveland Rolling-Mill Company v. Corrigan, 46 Ohio St. 283, 20 N.E. 466, 3 L.R.A. 385(1889); Maumee Valley Railways & Light Co. v. Hanaway, 7 Ohio App. 99 (1915).

On the other hand, the Defendant-Appellant does strongly urge that the issue of the minor Plaintiff's contributory negligence should have been taken from the jury.¹ This contention is based on alternative grounds: (1) that violation of the flasher signal was negligence as a matter of law, or (2) that under the evidence presented the only conclusion the jury could reach was that the minor Plaintiff was negligent. If either ground is correct, it would have been reversible error for the District Court to fail to instruct the issue of contributory negligence out of the case. Moore v. Smith, 343 F.2d 206 (3rd Cir. 1965). We find, however, that the minor Plaintiff was not negligent per se under Ohio law and that sufficient evidence was presented under both the federal standard and the Ohio standard to take the issue of contributory negligence to the jury.

Resolution of the question raised by the first ground is clearly controlled by Ohio law. As indicated earlier, statutes or case law that make specific acts or omissions negligence are regulations of primary activity that are substantive under the Erie doctrine and thus must be followed by the federal courts in diversity actions. See Hanna v. Plumer, 380 U.S. 460, 474, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (Harlan, J., concurring). Ohio Revised Code § 4511.62 (Page 1965) provides that no one shall drive a vehicle, which includes a bicycle, over a railroad grade crossing when a clearly visible electric signal is operating. No one contests that the minor Plaintiff violated this statute, but in Ohio violation of a statute by a child is not negligence per se. Michalsky v. Gaertner, 53 Ohio App. 341, 5 N.E.2d 181 (1935). Whether the violation is negligence depends upon the mental capacity and experience of the child and upon the circumstances of the particular case. Wheaton v. Conkle, 57 Ohio App. 373, 14 N.E.2d 363 (1937).

These cases make it clear that the negligence of a child is always a fact question; therefore, the Defendant-Appellant's alternate ground for taking the issue of contributory negligence from the jury must be resolved. Determining whether the evidence in this case was sufficient to go to the jury, however, raises a collateral issue, whether the applicable standard is the federal standard or the state standard, on which there is a considerable conflict of opinion in the Circuits.² Our early cases, O'Donnell v. Geneva Metal Wheel Co., 190 F.2d 59 (6th Cir. 1950); Lovas v. General Motors Corp., 212 F.2d 805 (6th Cir. 1954), holding that the state law applied, were decided at a time when the decisions of the United States Supreme Court indicated that for purposes of diversity jurisdiction a federal court was, "in effect, only another court of the State * * *" Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1954); Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940). More recent decisions of the Supreme Court indicate that such a broad rule states too much and that "* * * `outcome-determination' analysis was never intended to serve as a talisman." Hanna v. Plumer, 380 U.S. 460, 466-467, 85 S.Ct. 1136, 1141, 14 L.Ed.2d 8 (1965); Byrd v. Blue Ridge Rural Elec. Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). These recent developments would make a review of our position appropriate, but we will not reach out to decide the issue since it appears that the Ohio standard and the federal standard are the same.³ Dickerson v. Shepard Warner Elevator Co.,...