McNaughton v. New York Central Railroad Company, 11214.

• Decision Date: 11 April 1955
• Docket Number: No. 11214.,11214.
• Citation: 220 F.2d 835
• Parties: Frederick H. McNAUGHTON, Plaintiff-Appellee, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

220 F.2d 835 (1955)

Frederick H. McNAUGHTON, Plaintiff-Appellee, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.

No. 11214.

United States Court of Appeals, Seventh Circuit.

March 8, 1955.

Rehearing Denied April 11, 1955.

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Marvin A. Jersild, Chicago, Ill., Joseph J. Daniels, Karl J. Stipher, Byron P. Hollett, Indianapolis, Ind., Baker & Daniels, Indianapolis, Ind., of counsel, for appellant.

James J. Stewart, Elbert R. Gilliom, Richard L. Gilliom, Indianapolis, Ind., Murray, Mannon, Fairchild & Stewart and Gilliom, Armstrong & Gilliom, Indianapolis, Ind., of counsel, for appellee.

Before DUFFY, Chief Judge, and LINDLEY and SCHNACKENBERG, Circuit Judges.

LINDLEY, Circuit Judge.

Plaintiff sued to recover damages for personal injuries incurred in a collision between a passenger train operated by defendant and a tractor-trailer which he was driving, as employee of Ellis Trucking Company, Inc., hereinafter referred to as Ellis or plaintiff's employer. Defendant counterclaimed for the damage to its locomotive in the same collision. A jury found for plaintiff on both complaint and counter-claim. Defendant appeals from the judgment entered on the verdict and assigns error upon the action of the District Court in denying its motions for a directed verdict and for judgment notwithstanding the verdict, which were based on its contention that plaintiff was guilty of contributory negligence as a matter of law.

The essential evidence, viewed most favorably to plaintiff, follows. The accident occurred at a crossing within the city limits of Anderson, Indiana, where defendant's main line, extending in a general southwesterly and northeasterly direction, intersects an east-west street known as West 25th. A second street, Arrow Avenue, runs north and south and dead-ends into 25th a short distance west of the crossing, with a cut-off for east bound traffic from Arrow crossing defendant's tracks to intersect with 25th, just east of the crossing, thus forming a Y highway intersection. The crossing on West 25th lies west of the center of the fork of the Y formed by the approaches from Arrow. The crossing was guarded by warning signals, topped with the usual "railroad crossing" sign, so arranged that one or more of the alternately flashing red lights faced in each direction, east and west, on 25th and each approach of the Arrow Avenue lanes.

In his trips between Detroit and Indianapolis, plaintiff had passed over this highway many times. On the morning of April 26, 1950, about 6 A.M., he approached the railroad from the east on 25th Street, traveling at approximately 20 miles per hour, but reducing to 15 when he was about 80 feet east of the crossing. At the same time defendant's passenger train, composed of two locomotives and thirteen baggage and passenger cars, came from the northeast, traveling in a southwesterly direction and was the first to reach the crossing. Plaintiff's vehicle ran into the east side of the first diesel unit, about 12 feet back of the front thereof.

Plaintiff and two other witnesses testified that the signals were not operating prior to the collision and that they heard no whistle or bell. They estimated the speed of the train at from forty to forty-five miles per hour at the time of the accident, and plaintiff introduced in evidence dence the speed tape of the locomotive, which indicated that it was running at least forty-two miles per hour. Apparently, the engineer did not see plaintiff's vehicle and had no knowledge of its presence before he felt the thud of the impact.

Near the crossing were certain obstructions. Thus, the view to the southwest was obscured by certain factory buildings located about 80 feet east of the tracks. Just to the north of 25th was a parking lot. Several trees dotted the landscape and some shrubbery had grown on the east side of defendant's right-of-way. This is the area with which we are principally concerned, since the train approached from a northeasterly direction on plaintiff's right as he neared the crossing. Plaintiff testified that, as he approached the crossing, he looked to his right, down the railroad right-of-way, from three different points, but did not see any approaching train, and that he first saw the train when he was about fifteen feet from the crossing, after he had looked to the left and ascertained that the right-of-way was clear in that direction.

Defendant invites our attention to several photographs taken by cameras located on 25th Street at the points where plaintiff said he had looked, namely 250, 180 to 200 and 100-110 feet east of the crossing, each of which reproduces an image of the view, as one looks north-eastward, up defendant's right-of-way. They tend to show that, at the respective points, the right-of-way was clearly visible, except for the trees and shrubbery previously mentioned, for distances ranging from 450 to 950 feet northeast of the crossing. Of the four photographs, two were introduced by plaintiff, who also admitted that a third, taken on the day the accident occurred, represents a true and correct view of the right-of-way from the 250 foot point.

Defendant's motions for a directed verdict and for judgment notwithstanding the verdict were grounded on the postulate that even though plaintiff looked at the points where he testified he had done so, he was contributorily negligent as a matter of law, in failing to see the approaching train. Defendant insists here, as it did in the trial court, that the photographs, viewed in the light of the fact of the collision, and plaintiff's testimony as to his speed and that of the train, demonstrate that at each point where plaintiff says he looked, the oncoming train would have been clearly visible and that, even at 250 feet east of the crossing, considering plaintiff's speed of 20 miles and that of the train of over 40, inasmuch as each reached the intersection at approximately the same time, the train would have been only 500 to 600 feet northeast of the crossing, at a place which the photograph taken from the 250-foot position shows to have been clearly visible to one in plaintiff's position. A like argument is made with reference to the view at each point at which plaintiff says he looked.

Since our jurisdiction in this cause rests on diversity of citizenship, the substantive law of Indiana controls. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. It is well settled in that state that the question of contributory negligence is for the jury, except where the evidence is undisputed and the only reasonable inference is that the conduct involved constitutes contributory negligence. Pearson v. Baltimore & Ohio R. R. Co., 7 Cir., 200 F.2d 569, 572; Dommer v. Pennsylvania R. R. Co., 7 Cir., 156 F.2d 716, 718; New York Central R. R. Co. v. Milhiser, 231 Ind. 180, 190, 106 N.E.2d 453, 458-459, 108 N.E.2d 57; Baltimore & Ohio R. R. Co. v. Reyher, 216 Ind. 545, 552, 24 N.E.2d 284, 286; Lake Erie & Western R. R. Co. v. McFarren, 188 Ind. 113, 117-118, 122 N.E. 330; Kettner v. Jay, 107 Ind.App. 643, 645, 26 N.E.2d 546, 547.

However, no case principally relied on by either party is closely in point. Thus the law of Illinois controlled our decision in Pringle v. Gulf, Mobile & Ohio R. R. Co., 212 F.2d 632, on which defendant relies. Furthermore, that case is distinguishable on its facts. Pringle approached a crossing in open country, guarded by neither gates nor electrical warning devices, at a relatively high rate of speed, while traveling on a wet pavement on a dark and cloudy day, in apparent disregard of several crossing warning signs. And Chesapeake & Ohio Ry. Co. v. Williams, 114 Ind.App. 160, 51 N.E.2d 384, had to do with a collision at an unguarded crossing. There, on plaintiff's testimony, which indicated that he had not looked for trains until he had reached a point at which looking was futile, despite the fact that he had a clear view of the railroad right-of-way, at a point more than 100 feet from the crossing, the court held that he was guilty of contributory negligence as a matter of law.

Plaintiff relies largely on Baltimore & Ohio R. R. Co. v. Reyher, 216 Ind. 545, 24 N.E.2d 284, New York Central Ry. Co. v. Milhiser, 231 Ind. 180, 106 N.E.2d 453, 108 N.E.2d 57, and Pearson v. Baltimore & Ohio R. R. Co., 7 Cir., 200 F.2d 569. The circumstances surrounding the collision in each of these cases were such that the plaintiff's view of the defendant's tracks was largely obscured either by the proximity of buildings to the railroad-right-of-way (Pearson), or by a snowstorm or snow kicked up by the excessive speed of the train (Milhiser and Reyher).

The two cases most closely in point are Lake Erie & Western R. R. Co. v. McFarren, 188 Ind. 113, 122 N.E. 330, and Pennsylvania R. R. Co. v. Boyd, 98 Ind. App. 439, 185 N.E. 160, 162. In the latter, it appears that the collision occurred about 6 A.M. on a spring day; that the train was exceeding the limit established by an ordinance; that a warning bell was not working; that plaintiff looked both ways but failed to see the train; and that there was "some obstruction to the appellee's view in the direction from which the train came." Upon this evidence, the court held that the question was properly submitted to the jury. So, too, in McFarren, there was evidence that a warning gong was not ringing; that plaintiff looked, but did not see a train; that his truck was struck by a switch engine, as it entered the crossing, and that the engine was being operated at a speed exceeding the limit fixed by ordinance. The court again held the question of contributory negligence one for the jury, saying that the highway traveler is entitled to presume from the silent bell that the crossing is safe and that the railroad "`cannot relieve itself from liability simply because the traveler neglected to look or listen for himself.' Pennsylvania Co. v. Stegemeier, Adm'r (1889), 118 Ind. 305, ...