Miller v. Pennsylvania Railroad Company

• Citation: 233 F.2d 535
• Decision Date: 11 June 1956
• Docket Number: No. 11640.,11640.
• Parties: Virginia J. MILLER, administratrix of the estate of Robert B. Miller, deceased, Plaintiff-Appellant, v. PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

233 F.2d 535 (1956)

Virginia J. MILLER, administratrix of the estate of Robert B. Miller, deceased, Plaintiff-Appellant, v. PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellee.

No. 11640.

United States Court of Appeals Seventh Circuit.

May 21, 1956.

Rehearing Denied June 11, 1956.

Roland Obenchain, Jr., South Bend, Ind., for appellant.

James W. Oberfell, George N. Beamer, South Bend, Ind., for defendant-appellee, Crumpacker, May, Beamer, Levy & Searer, South Bend, Ind., of counsel.

Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Plaintiff sued defendant to recover damages for the death of decedent, which, plaintiff alleges, was the result of personal injuries sustained by decedent when a negligently operated train of defendant collided with decedent's automobile at a crossing of the railroad over Ireland Road in St. Joseph County, Indiana, which crossing was negligently maintained by defendant. At the close of plaintiff's case, the district court directed a verdict for defendant and entered a judgment in favor of defendant on said verdict, from which plaintiff has appealed to this court, relying upon the directing of the verdict as error.

Evidence in the record at the time of the entry of the verdict tended to establish the following facts:

On October 6, 1953, outside the southern limits of the city of South Bend, Indiana, defendant maintained a grade crossing at Ireland Road. The tracks ran north and south and the road east and west. There were four tracks, consisting of three storage tracks and one main track. The easternmost track was the main track. The right of way of Ireland Road was 80 feet wide. The pavement was blacktop and was 22 feet wide. It was 32 to 35 feet from the westernmost to the easternmost rail of the crossing. The crossing was heavily traveled at night. There were standard cross-arm signals on both sides of the tracks facing traffic as it approached from either direction. The highway was posted at 30 miles per hour. About one half mile north of the crossing there was a Studebaker shipping plant where there were flood lights observable from the railroad crossing at night. There was a wooded area between Ireland Road and this plant and trees and foliage on the northwest corner of the crossing. There were no crossing gates, signals or watchman at the crossing.

The defendant's train consisted of a diesel switch or yard engine, 25 or 30 feet long, an empty gondola car, a boxcar, a loaded coal car and a cabin. It was 200 feet long over all. This train was southbound on the main or easternmost track. The engine was proceeding forward with the cab at the back. The engineer was on the right side of the cab operating the engine and the fireman was on the left. The train was going approximately 15 miles an hour and it could not be stopped within 300 feet to 400 feet at that speed. It approached Ireland Road crossing at about 12:00 to 12:15 A.M. The whistle was blowing, the bell was ringing, and its headlight was burning brightly. There was a string of boxcars standing on one of the storage tracks north of Ireland Road, the nearest car to Ireland Road being about a car length or 40 feet from the pavement of that road. This string of cars extended as far as witnesses could see in the dark. The cars were the same height as the engine. The engineer could not see over the boxcars.

Decedent was thoroughly familiar with the crossing, having crossed it twice daily on his way to and from work, and knew of all existing conditions at the crossing. He had remarked on several occasions that "one of these nights somebody is going to get killed at that crossing." He was acquainted with the fact that there were cars parked on the side tracks from time to time.

On the date of the accident decedent had worked at the Bendix plant in South Bend until 12:00 midnight. He was driving his car eastbound on Ireland Road. There was heavy eastbound traffic. The emergency air brakes were applied on the train and the engineer stopped as fast as he could. The knuckle on the front coupler of the engine struck decedent's car on the left side and carried it on the front of the engine 450 feet south of the crossing. The decedent died as the natural and probable consequences of this collision. He left his widow and three dependent children. The plaintiff is administratrix of his estate. They were damaged by his death.

1. The care which the law required of the engine crew, as well as of decedent, depended upon the circumstances existing at and near the crossing immediately before the collision. The presence of a string of boxcars upon a track west of the one upon which defend...