Menke v. Southern Ry. Co.

• Decision Date: 17 August 1979
• Docket Number: No. 78-2243,78-2243
• Citation: 603 F.2d 1281
• Parties: CA 79-3103 Linda Galloway MENKE, Personal Representative of the Estate of Michael Ray Galloway, Deceased, Plaintiff-Appellee, v. The SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1281

603 F.2d 1281

CA 79-3103 Linda Galloway MENKE, Personal Representative of the Estate of Michael Ray Galloway, Deceased Plaintiff-Appellee, v. The SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 78-2243.

United States Court of Appeals Seventh Circuit.

Argued April 26, 1979.

Decided Aug. 17, 1979.

David R. Joest, Evansville, Ind., for defendant-appellant.

Daniel J. McGinn, Evansville, Ind., for plaintiff-appellee.

Before PELL, Circuit Judge, MOORE, Senior Circuit Judge, ^* and WOOD, Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

The plaintiff-appellee, Linda Galloway Menke as the personal representative of the estate of Michael Ray Galloway, initiated this wrongful death action in an Indiana state court against the defendant-appellant, Southern Railway Company (Southern). Galloway died when a train operated by Southern collided with the truck he was driving. The action was removed to the federal district court and tried before a jury, Southern now appeals from the judgment entered upon the jury's verdict in favor of the plaintiff. Southern raises three issues for our consideration.

(1) Is the Indiana Act, Ind.Code § 8-6-7.6-1, upon which the plaintiff predicated one of her theories of negligence, so vague and uncertain that it deprives the defendant of due process?

(2) If the above Indiana Act is constitutional, did the trial court err by refusing to instruct the jury more specifically as to the duty the statute imposed on Southern?

(3) Did the trial court err by refusing to instruct the jury that to find that Southern breached its common law duty to maintain crossing signals, it must find that the railroad knew that the signal was not working properly?

We hold that the answer to each of these questions is no and affirm the judgment of the district court.

The accident occurred on March 31, 1975, at about 11:20 a. m. at a railroad crossing on state road 61 in Pike County, Indiana. At this particular crossing, Southern's right of way is fifty feet wide on each side of the tracks. Galloway was traveling north in a large truck hauling coal. He was driving at between five and fifteen miles per hour when the train, approaching the crossing from the east at approximately forty-five miles an hour, struck the cab of the truck. At trial, the plaintiff presented four different theories upon which the jury could have found that Southern was negligent:

(1) Southern's failure to sound a bell or whistle not less than 1320 feet before the crossing as required by Indiana law. Ind.Code § 8-6-4-1(a).

(2) Southern's failure to maintain the automatic signal devices (flashers) at the crossing in good working order.

(3) Southern's failure to maintain its right of way in a condition so that approaching motorists would have an unobstructed view for 1500 feet in both directions as required by law. Ind.Code § 8-6-7.6-1.

(4) Southern's operation of its train at an unreasonable and excessive speed.

Southern does not contest the sufficiency of the evidence to support any of these theories, so we need not detail the evidence in great detail. It is sufficient to note that testimony as to whether the train's bell or whistle sounded and whether the flashers were functioning properly prior to the impact was conflicting. Evidence as to the range of unobstructed vision that an approaching motorist would have of the tracks at various distances from the crossing also differed. The evidence also presented a jury question on the issue of whether the train's speed was excessive. Thus, there was enough evidence to support any one of the four theories of the plaintiff and therefore the jury's general verdict in the plaintiff's favor.

I.

The Indiana Act upon which the plaintiff based her claim that Southern breached its duty to clear obstructions from railroad crossings provides:

Unobstructed view at crossings. Each railroad in the State of Indiana shall maintain each public crossing under its control in such manner that the operator of any licensed motor vehicle has an unobstructed view for fifteen hundred (1,500) feet in both directions along the railroad right-of-way subject only to terrain elevations or depressions, track curvatures, or permanent improvements.

Ind.Code § 8-6-7.6-1. Southern maintains that the Act is void for vagueness because no reasonable person of ordinary intelligence could determine what the railroad's duty is. Southern concedes that the Act "contemplates that a motorist approaching a railroad (must) have an unobstructed view of 1500 feet of track in both directions," but argues that the statute "fails to specify At what distance from the track the motorist must have . . . an unobstructed view." It relies primarily upon two state court decisions which invalidated statutes which required motorists to slow down or stop at railroad crossings under certain conditions. See Missel v. Oklahoma, 33 Okl.Cr. 376, 244 P. 462 (1926); Galveston, H. & S. Ry. v. Duty, 277 S.W. 1057 (Tex.App.1925).

Southern apparently raises this issue for the first time on appeal. The plaintiff's answers to Southern's interrogatories and her pretrial specifications of negligence put the defendant on notice that the statute would be in issue. Nevertheless, the record before us contains no motion prior to trial questioning the constitutionality of the Act. Nor did Southern's motion for a directed verdict challenge the Act. Southern delayed until the jury instruction conference to complain that the statute was "vague, uncertain, and ambiguous." Yet, even there, as in its later motion for judgment n. o. v., it failed to argue specifically that the alleged vagueness contravened constitutional limitations and failed to present to the trial court precedent to support the argument it now makes before this court. We do not believe this is the proper way to raise a constitutional challenge to the validity of a statute. Under the circumstances we believe that defendant waived its constitutional objection. See Stern v. United States Gypsum, 547 F.2d 1329, 1333-34 (7th Cir.), Cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977).

Even if we treat the issue as properly raised, however, we do not believe that the Indiana Act is impermissibly vague. The defendant admits that the courts have been fairly tolerant of imprecise phrasing in economic and industrial regulations. See, e. g., Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 75, 96 L.Ed. 639 (1952); Baltimore & Ohio Ry. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419 (1925). Nevertheless, in this case Southern seems to insist that due process requires "mathematical precision." In our view the language of the Act when considered against the background of its obvious purpose to protect motorists from hidden trains at rail crossings, its relation to other Indiana statutes, and the variety of conditions which may be present at railroad crossings, is reasonably clear, if not mathematically precise. Due process requires no more.

The Indiana Act provides that the motorist shall have an unobstructed view "along the railroad right-of-way." We read the Act to say that the motorist must have the mandated view at the point where the highway intersects the edge of the railroad right of way.

Without a doubt the statute was enacted to prevent the very type of accident that claimed Michael Galloway's life in this case. The legislature intended to obligate the railroads to remove (subject to certain exceptions) all foliage and obstructions on the right of way which might impair a motorist's view of an oncoming train. The statute does not stand alone. It should be read in conjunction with Ind.Code § 9-4-1-106 which also seeks to prevent crossing collisions. That section requires motorists to stop within fifty to ten feet before the railroad tracks and to remain stationary when "an approaching train is plainly visible and is in hazardous proximity to such crossing." The two statutes, read together, indicate the legislature's goal of affording the motorist an unobstructed view of the tracks so that he may avoid approaching trains.

Of course, the railroad can only be held responsible for obstructions within its control. ¹ We think this idea is implicit in the statute which applies only at those public crossings within the railroad's control. Ind.Code § 8-4-1-14 provides that the railroad's right-of-way shall not exceed "six rods" in width or, in simpler terms, approximately one hundred feet. Thus, while the width of the right of way in question is typical of most Indiana crossings, the widths of a railroad's land may vary from one crossing to the next. The angle at which a highway crosses a railroad track may also vary. These circumstances make pinpointing the exact vantage point at which the motorist should be able to see 1500 feet in both directions difficult. We hold that the statute is not impermissibly vague and therefore that it falls within the flexible limits which the due process clause imposes on the exercise of legislative power.

II.

Southern's second argument is that the instruction to the jury was erroneous and prejudicial because it failed "to specify any particular distance from the rail from which there must be (a) view for 1,500 feet." Southern maintains that it was error for the trial court to repeat essentially the language of the Indiana Act when its meaning and application to the facts were in doubt.

This court has previously expressed its...