McVicker v. Chesapeake and Ohio Railway Company

• Citation: 307 F.2d 501
• Decision Date: 29 August 1962
• Docket Number: No. 14574.,14574.
• Parties: John McVICKER, Plaintiff-Appellee, and George F. Alger Company, Intervenor Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

307 F.2d 501 (1962)

John McVICKER, Plaintiff-Appellee, and George F. Alger Company, Intervenor Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.

No. 14574.

United States Court of Appeals Sixth Circuit.

August 29, 1962.

Robert A. Straub, Detroit, Mich., for defendant-appellant, James R. Gannon, Detroit, Mich., on the brief.

Harry M. Philo, Detroit, Mich., for plaintiff-appellee, Goodman, Crockett, Eden, Robb & Philo, Detroit, Mich., on the brief.

Kenneth C. Davies, Detroit, Mich., for intervenor-plaintiff-appellee, Davies & Moesta, Detroit, Mich., on the brief.

Before MILLER, Chief Judge, O'SULLIVAN, Circuit Judge, and BOYD, District Judge.

SHACKELFORD MILLER, Jr., Chief Judge.

This action was filed in the District Court by the plaintiff-appellee against the Chesapeake and Ohio Railway Company to recover damages for personal injuries suffered by him when a tractor trailer which he was driving was hit at a railroad crossing on a public highway in Indiana by a train being operated by the defendant. The parties will be referred to as they were in the District Court.

The material facts leading up to the accident are briefly stated as follows.

Plaintiff was employed by George F. Alger Company as a truck driver and was assigned to a daily trip from Chicago, Illinois, to Three Rivers, Michigan, and return, which was a normal ten-hour run. He had been so employed for approximately two years before the accident. In making this run plaintiff was required to use Highway U. S. 20 in each direction. U. S. 20 is a paved four-lane highway, approximately forty feet wide, running in a generally eastwardly and westwardly direction a few miles south of Michigan City, Indiana. Defendant Railroad Company's tracks, running from Grand Rapids, Michigan, to Chicago, Illinois, consist of a single set of tracks which run in a generally northeastwardly and southwesterly direction and cross U. S. 20 near Michigan City. Defendant maintained standard flasher signal lights at the crossing about ten feet back from the rail. There was also erected at the crossing at a point before reaching the flasher signal a standard advance highway warning sign advising the traveling public that a railroad crossing was ahead. There were no gates or watchman at the crossing.

Plaintiff left Chicago at 9 A.M. on Saturday, February 15, 1958, driving a tractor trailer to Three Rivers, Michigan. At Three Rivers he dropped the trailer with the freight from Chicago and picked up a trailer to take back to Chicago. A heavy snow storm, characterized by at least one witness as a blizzard, commenced some time on Saturday, February 15, and continued with such severity that after it had subsided on Monday it was reported as the worst storm in the history of Michigan City. The brunt of the storm was confined to an area around Michigan City approximately 25 miles long and from 5 to 7 miles wide. About 9 o'clock that night plaintiff had crossed the Michigan State line into Indiana. He stopped at the Cloverleaf Garage, which was on U. S. 20, where his company had a charge account and where sleeping facilities were available. He called the company's dispatcher in Chicago and told him that the weather was bad and that he was going to get off the highway. The dispatcher told him, "Tomorrow, when you see that the weather is fit and you feel that you can make it, you continue on your way." Plaintiff stayed at the Cloverleaf Garage until about 10 o'clock Sunday morning. After breakfast he watched the traffic for a little while and when he saw that the traffic was moving he decided to leave. The Cloverleaf Garage was about a mile and a half from the scene of the accident. About four feet of snow had fallen, but a bulldozer cleared a way so that the trucks could get out of the truck yard on to the highway. It was still snowing and blowing, and as described by the plaintiff "you couldn't see your hand in front of you at times." There was heavy traffic moving very slowly on U. S. 20. It took the plaintiff approximately two hours and fifteen minutes to travel the one and one-half miles to the crossing. Plaintiff finally reached a point where he could go no further because traffic ahead of him as far as could be seen had completely stopped due to a truck getting crossways on U. S. 20. Plaintiff came to a final stop with his trailer about half way over the railroad track, in which position it remained until struck by the defendant's train at least some ten or fifteen minutes later. During this period of time the plaintiff remained in the cab of his trailer. He testified that because of the heavy snow and weather conditions he did not see the railroad track and did not know he was on it, nor did he see any of the warning signals at the track or hear the whistle or approach of the train.

Defendant's train left Grand Rapids, Michigan, for Chicago, Illinois, on the morning of February 16, 1958. The train consisted of one diesel engine and forty-five freight cars. There was no storm or snow conditions at Grand Rapids, Michigan, at that time. It made a stop at New Buffalo, Michigan, where there was one or two inches of snow. As it proceeded westwardly the weather conditions became increasingly worse, until the train was running through the storm in the Michigan City area. As it approached the crossing it was running at a speed of approximately 35 miles per hour and sounded its crossing whistle. The headlight on the train was lighted and on bright. The flasher signals at the crossing were in operation. On account of the poor visibility, plaintiff's trailer standing over the crossing was first observed at a distance of 250 to 300 feet northeast of the crossing, at which time the emergency brakes were applied. In answer to the question why he couldn't see it sooner, defendant's engineer said, "Well, it was so blustery you just couldn't see, so much snow and blowing that you just couldn't see any further than that. And then it would clear for a second and then again you couldn't see." The conductor testified that visibility was from zero to half a mile, depending on how the wind was blowing. He said, "* * * the wind would let up and you could see, and all of a sudden, swoosh, she would come, and you couldn't see 50 feet." He estimated the temperature at about zero. The train struck the trailer and continued on until it stopped with the engine located approximately 300 feet south of U. S. 20.

The George F. Alger Company intervened in the suit as an additional plaintiff. The defendant, in addition to filing answers denying negligence on its part and alleging contributory negligence on the part of the plaintiff, asserted a counterclaim for damages sustained by it as a result of the accident. The jury returned a verdict in favor of the plaintiff in the amount of $25,000.00 and in favor of the intervenor, the George F. Alger Company, in the amount of $10,479.20. Defendant's motion to set aside the jury verdicts and enter judgments in its behalf and to also enter judgment in its behalf on its counterclaim were overruled. This appeal followed.

The defendant contends that the District Judge was in error in overruling its motion for a directed verdict, made at the close of plaintiff's case and renewed at the close of the whole case, in that (1) the evidence was insufficient to take the case to the jury on the issue of defendant's negligence, and (2) the uncontradicted evidence showed that the plaintiff was guilty of contributory negligence as a matter of law. Since jurisdiction is based upon diversity of citizenship and the amount involved, the law of Indiana, in which state the collision occurred is applicable.

With respect to the negligence of the defendant, the evidence was uncontradicted that there were crossarm warning signs and flasher lights at the crossing, the flasher lights were operating properly, the headlight of the engine was on and the whistle was properly blown for the crossing, thus constituting compliance with all statutory requirements. The speed of the train was not in excess of any statutory provision. However, we do not agree with defendant's contention that this, as a matter of law, removed the question of defendant's negligence from the case. Although speed, in and of itself, is not negligence under Indiana law, New York Cent. Ry. Co. v. Powell, 221 Ind. 321, 47 N.E.2d 615, we think that speed, considered in connection with certain existing circumstances, may be evidence of negligence. For example, driving an automobile thirty-five miles an hour on a super highway at a time when traffic is light would not be considered negligence, but the driving of that same automobile at...