Peterman v. Chicago, R. I. & P. R. Co.

Decision Date28 May 1975
Docket NumberNo. 74-1604,74-1604
Citation516 F.2d 328
PartiesFrank L. PETERMAN, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Bennett A. Webster, Des Moines, Iowa, for appellant.

Lloyd E. Humphreys and W. Howard Smith, Cedar Rapids, Iowa, for appellee.

Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.

MATTHES, Senior Circuit Judge.

This railroad crossing collision case involves the so-called last clear chance doctrine, which has been viable in Iowa for nearly a century. See list of cases appended to Note, The Iowa Doctrine of Last Clear Chance, 34 Iowa L.Rev. 480, 495 (1949). A jury awarded plaintiff Frank L. Peterman $35,000 as damages for injuries he sustained when the converted school bus he was driving was struck by a train owned and operated by the appellant railroad company. The collision occurred at a railroad crossing near Tiffin, Iowa. 1

I JURISDICTION

As its sole basis for obtaining post-verdict relief, the appellant filed a timely motion for judgment n. o. v. It did not file a motion for new trial pursuant to Rule 59, Fed.R.Civ.P., nor did it seek a new trial as an alternative form of relief to its motion for judgment n. o. v. as authorized by Rule 50(b), Fed.R.Civ.P.

The district court denied the appellant's motion for judgment n. o. v., but sua sponte ordered a new trial. These actions were taken more than 10 days after entry of judgment. See Rule 59(d), Fed.R.Civ.P. Thereafter, plaintiff filed a notice of appeal and a petition for writ of mandamus contending that the district court had exceeded its jurisdiction in granting the new trial. After a hearing, we held that the trial court did not have the power to grant sua sponte a new trial more than 10 days after the entry of judgment and issued the writ of mandamus vacating the order granting the new trial. See Peterman v. Chicago, R. I. & Pac. R. Co., 493 F.2d 88 (8th Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974).

After the Supreme Court's denial of certiorari and this court's subsequent filing of its mandate, the railroad company moved for entry of judgment on the jury's verdict. The district court formally entered the judgment and the railroad company appealed.

Plaintiff has opposed the appellant's appeal contending that the appellant filed its notice of appeal out of time and that, therefore, this court lacks jurisdiction. The parties exhaustively presented this jurisdictional issue in their briefs and at oral argument. All of the proceedings relating to the timeliness of the appeal have been considered in light of the applicable law. From our exploration of the issue, we are led to conclude that we are vested with jurisdiction to consider the merits of the appeal. See generally United States v. Williams, 508 F.2d 410 (8th Cir. 1974); United States v. Mills, 430 F.2d 526, 527-28 (8th Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 589, 27 L.Ed.2d 636 (1971). Accordingly, the plaintiff's motion to dismiss is denied.

II THE MERITS

The merits of this controversy concern whether plaintiff was entitled to recover under the Iowa last clear chance doctrine. In this respect, the railroad company raises two contentions on appeal. First, it asserts that the evidence was insufficient as a matter of law to warrant submission of the last clear chance doctrine to the jury. Secondly, it contends that the general verdict was inconsistent with the jury's answers to the district court's special interrogatories.

In its answers the jury found the plaintiff guilty of negligence that was a proximate cause of the injury. Consequently, the railroad company claims that the district court should have granted its motion for judgment n. o. v.

We consider these issues seriatim.

A. SUFFICIENCY OF THE EVIDENCE

Under Iowa law, the last clear chance doctrine cannot be submitted to the jury unless the evidence is sufficient for the jury to find that the defendant (1) had knowledge of plaintiff's presence, (2) realized or by the exercise of ordinary care should have realized the plaintiff's peril, (3) had the ability to avoid the injury to the plaintiff, and (4) failed to avoid the injury. See, e. g., Ackerman v. James, 200 N.W.2d 818, 827 (Iowa 1972); Albrecht v. Rausch, 193 N.W.2d 492, 495 (Iowa 1972); Duffy v. Harden, 179 N.W.2d 496, 501 (Iowa 1970). The appellant admits that the evidence was sufficient for the jury to find elements (1), (2) and (4). However, it asserts that the third element, the ability to avoid colliding with the plaintiff's vehicle, was not shown. See Albrecht v. Rausch, supra.

Specifically, appellant submits that there was no evidence that the train crew had sufficient time to avoid the collision after they knew or should have known that plaintiff was in a position of peril. In considering this position, we observe that our review of the district court's denial of a motion for judgment n. o. v. is severely limited: we must view the evidence in the light most favorable to the plaintiff as the party who prevailed below, giving the benefit of all favorable inferences to him. See, e. g., Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851 (8th Cir. 1975); Hanson v. Ford Motor Co., 278 F.2d 586, 596 (8th Cir. 1960). 2

We do not propose to engage in an extended discussion of the evidence favorable to plaintiff. The transcript has been carefully scrutinized and we are in agreement with Judge Stuart's analysis thereof, which is shown in his memorandum opinion denying the motion for judgment n. o. v. As the district court stated in pertinent part:

The Court is of the opinion that under the evidence presented, the jury could have found that the train crew saw the bus when the train was about 1000 feet from the intersection. That the bus stopped about 55 feet from the centerline of the railroad track and then proceeded forward in low gear to the point of the accident. A stop sign was attached to a railroad cross buck sign about 35 feet from the centerline of the track. The bus proceeded past the stop sign and cross buck at a speed of about six miles per hour. The train was traveling at a speed of about 55 miles per hour. No effort was made to slow the speed of the train until it was 25 to 100 feet from the crossing. The train hit the back four feet of the bus. The front of the bus would have had to travel 60 to 65 feet from the cross buck to the point of collision. This would have taken six or seven seconds and would have placed the train about 560 feet away from the crossing when the bus passed the cross buck. The engineer would have had six to seven seconds to slow the train down.

We add only that, in addition to these findings, the review of the transcript reveals that the jury could have found that the crossing was extremely dangerous, since a number of accidents had occurred at the crossing in the past, and that the train engineer knew of this hazardous condition.

In light of these facts, we can only conclude that the evidence was sufficient for the district court to submit Under these circumstances, the following statement from Tilghman v. Chicago & N.W. Ry. Co., supra, 253 Iowa at 1346, 115 N.W.2d at 169-70, is convincing:

                the last clear chance doctrine to the jury.  We cannot agree with the appellant that those Iowa cases that have allowed train crewmen to rely on the custom of travelers to drive up to the tracks before stopping require an opposite result.  3  The application of that custom is precluded by the particular facts in this case, which show that the engineer was aware that the crossing was hazardous and that the crewmen observed the plaintiff proceed into the crossing without stopping at the stop sign and cross bucks.  See Tilghman v. Chicago & N.W. Ry. Co., 253 Iowa 1339, 1344, 115 N.W.2d 165, 170 (1962).  See also Strom v. Des Moines & Cent. Iowa Ry. Co., supra, 248 Iowa at 1062, 82 N.W.2d at 787
                

It was not necessary, in order to avoid the collision, to stop the train before it reached the crossing. If its speed had been reduced just a little or a little sooner plaintiff could have crossed the railroad track in safety. If the train had reached the crossing just one second later than it did this collision would have been avoided. At least the jury could properly so find. As it was, the truck (here bus) was partly across the track when it was struck without substantial reduction in the train's speed. * * *

The fact the trainmen may not have had time, after realization of plaintiff's peril, to stop the train does not prevent operation of the last clear chance doctrine where the evidence indicates that had they even checked the speed of the train it would have enabled plaintiff to clear the crossing.

Thus, as the district court held:

The jury could have found (1) the traincrew should have realized plaintiff did not know the train was approaching because he drove past the cross buck and (2) as reasonable men they should have, at that time, taken steps to slow down the train and (3) action at that time would have avoided the collision. Tilghman v. Railway, supra (253 Iowa), at 1347 (115 N.W.2d 165).

We therefore hold that the evidence was sufficient for the court to submit the last clear chance doctrine to the jury.

B. JURY INSTRUCTIONS

Prior to delineating the elements of the last clear chance doctrine, the district court in the prelude to Instruction No. 21 informed the jury:

Even if you have found the plaintiff, Frank L. Peterman, guilty of negligence which was a proximate cause of the collision he might still recover under the doctrine of last clear chance.

(Emphasis supplied.) Special interrogatories were requested by the appellant. The district court, in response to the request drafted special interrogatories, which with the jury's answers are here set out:

SPECIAL INTERROGATORIES

1. Was the defendant railroad company guilty of...

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