Tiedeman v. Chicago, M., St. P. & P. R. Co.

• Decision Date: 30 April 1975
• Docket Number: No. 74-1538,74-1538
• Citation: 513 F.2d 1267
• Parties: Alvina K. TIEDEMAN, Administrator of the Estate of Denny Milton Tiedeman, Deceased, Plaintiff-Appellant, Smit & Son, Inc., Intervenor-Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1267

513 F.2d 1267

Alvina K. TIEDEMAN, Administrator of the Estate of Denny Milton Tiedeman, Deceased, Plaintiff-Appellant Smit & Son, Inc., Intervenor-Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellee.

No. 74-1538.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 7, 1975.

Decided April 30, 1975.

Maurice B. Nieland, Sioux City, Iowa, and John D. TePaske, Orange City, Iowa, for plaintiff-appellant.

Randy Duncan, Des Moines, Iowa, for defendant-appellee.

Before JOHNSEN, Senior Circuit Judge, STEPHENSON and WEBSTER, Circuit Judges.

STEPHENSON, Circuit Judge.

In this diversity action arising out of a railroad crossing accident plaintiff appeals from the district court's judgment in favor of the defendant entered on the verdict of the jury and from the court's denial of plaintiff's motion for a new trial. ¹ The jury in special verdicts found the decedent-driver 75% negligent and the Milwaukee Railroad 25% negligent. The court then entered judgments in favor of the railroad on the respective claims of decedent's administrator and intervenor and awarded the railroad 75% of its counterclaim for damages to its engine against intervenor-truck owner in the net sum of $1,794.29. We affirm for the reason that in our view the trial court should have directed a verdict in favor of the railroad on the claims against it. We also affirm the trial court's denial of intervenor's motion for a new trial insofar as the counterclaim is concerned.

The truck-train collision giving rise to this action occurred at a rural railroad crossing in southern Minnesota. Action was originally commenced by decedent-driver's administrator in the state district court of Iowa and removed by defendant to the United States District Court and there tried to a jury. ² Minnesota law, including the Minnesota Comparative Negligence Act, M.S.A. § 604.01 (1969), ³ governs the substantive negligence issues involved.

It is our conclusion that the trial court should have directed a verdict in favor of the railroad at the close of all the evidence. We therefore discuss the evidence in a light most favorable to the plaintiff.

The accident occurred on November 21, 1972 at approximately 11:30 a. m. It was a cloudy day with a little haze in the air. The bituminous hard-top road over which decedent was driving was wet but not freezing. Decedent's truck was traveling in a westerly direction on Minnesota highway TH-268 as it approached the intersection with defendant's railroad crossing. Defendant's train, consisting of two diesel engines, three tank cars and a caboose, was approaching from the south, to decedent's left, at a speed of approximately 30 miles per hour, as shown by defendant's speed tape and the engineer's testimony. Decedent's truck struck defendant's lead engine about mid-way, or about 30 feet back from the front. There were no skid marks on the pavement. The truck was completely demolished, and decedent was killed in the crash.

There were no eyewitnesses to the collision except defendant's engineer. He was seated on the right-hand side of the lead engine. He first observed decedent's truck as it was coming over the hill in the vicinity of the main cemetery gate "when it was approximately 600 feet from the crossing." (A chart with measurements indicates that a railroad crossing sign painted on the surface of the road opposite the cemetery gate was 533 feet from the crossing.) The railroad engine was then about 300 feet from the crossing. The engineer continued blowing the whistle, which he had started at the whistling post one-fourth mile from the crossing. The bell was on, as was the engine headlight. His best guess was that the truck was traveling at a speed of 40 miles per hour as it approached the crossing. When he realized the truck was not going to stop, he placed the train in emergency. This was about a train car length from the crossing. He continued to whistle all the way to the crossing but gave short blasts after noticing the truck in order to "attract his attention."

A witness who lived approximately 1000 feet east of the crossing was out in his yard and observed decedent's truck as it passed by headed west toward the crossing. At the same time he heard the train whistling. His estimate ("guess") of the truck's speed as it passed was 40 miles per hour. As the train and truck proceeded toward the crossing, he anticipated trouble and heard the impact. He immediately went to the scene.

The real controversy between the parties with respect to the comparative negligence of the railroad and the decedent in this case arises out of the existence of a cemetery bordered by pine trees which lay between the train and the truck and at times partially obstructed the view as they respectively approached the crossing. Plaintiff contended that the pine trees obscured the vision of a motorist approaching the crossing from the west as to trains approaching from the south to such an extent that the crossing was more than ordinarily dangerous and that the ordinary statutory highway signs coupled with the ringing of the bell and the sounding of the whistle were inadequate. Plaintiff also requested the court to submit the issue of negligence by the railroad under the doctrine of last clear chance, urging that the engineer could have stopped or slowed his train after he saw the decedent in a position of peril approaching the crossing. Jacoboski v. Prax, 290 Minn. 218, 187 N.W.2d 125 (1971).

The railroad moved for a directed verdict at the close of plaintiff's case and at the close of all the evidence. The trial court denied defendant's motion at the close of plaintiff's case but reserved ruling on the motion made at the close of all the evidence. ⁴ The court submitted to the jury the hazardous crossing issue but refused to submit last clear chance.

In Gagnier v. Bendixen, 439 F.2d 57 (8th Cir. 1971), this court accurately predicted that the Minnesota Supreme Court in an appropriate case would, under its comparative negligence statute, hold that a trial court could direct a verdict where it appeared as a matter of law that the negligence of plaintiff is equal to or exceeds that of the defendant. The case of Winge v. Minnesota Transfer Railway Co., 294 Minn. 399, 201 N.W.2d 259 (1972), so holds.

Ordinarily, a comparison of negligence is for the jury. However, our review of this record convinces us that the negligence of plaintiff's decedent as a matter of law was equal to or exceeded that of the railroad.

In determining the issue of comparative negligence, we apply the law of Minnesota with respect to the rights and duties of the parties. In Minnesota it is the duty of drivers of vehicles to yield the right of way at crossings to the user of the rails. Chicago and North Western Railway Co. v. Strand, 300 F.2d 521 (8th Cir. 1962). The train crew may properly assume that an approaching vehicle will exercise care and stop. They need not stop or reduce the speed of a train unless it becomes apparent that the vehicle will not stop and a collision is imminent. Schroht v. Voll, 245 Minn. 114, 71 N.W.2d 843, 847 (1955); Forde v. Northern Pac. Ry. Co., 241 Minn. 246, 63 N.W.2d 11, 18 (1954). Here the engineer observed the truck approaching the crossing when the truck was approximately 600 feet away. He had no reason to suspect the truck would not stop; it was not traveling at an excessive rate of speed; the road was not icy; it was daylight; and the engine's whistle was blowing. When the engineer realized the truck was not going to stop, he placed the train in emergency. This was about 50 feet from the crossing. The engineer could properly assume that the truck would stop, and the mere fact that he switched to short whistle blasts to attract attention does not negate his testimony that he placed the train in emergency when he first realized the truck would not stop.

Although submitted as a jury issue, we conclude, after examining the numerous photographs and testimony, that the court could well have ruled as a matter of the law that the crossing was not extra-hazardous. It was located in open country and crossed a highway denominated a "secondary" road because of its low traffic count. ⁵ The tracks crossed the highway at approximately a right angle. The only obstruction whatever was the cemetery trees located in the southeast quadrant. The pine trees located along the cemetery adjacent to the tracks and the highway, although properly termed a partial obstruction, were spaced to such a degree that an approaching train would be visible to a driver who looked. As a whole, the evidence of negligence on the part of the railroad was relatively sparse.

On the other hand, plaintiff's decedent was negligent as a matter of law to a serious degree. He was familiar with the crossing. He traveled over this road and crossing at least once and most of the time twice a week delivering meat to a meat market in nearby Edgerton. This was over a period of at least two and possibly three years prior to the collision. There were no skid marks on the pavement prior to impact. It is undisputed that the train whistle was blowing. Had the driver been attentive, he would have heard it. If he had looked, he would have seen the train despite the presence of trees. If the driver's view is partially obstructed, it is even more imperative that he should look before attempting to cross the track. Gagnier, supra, 439 F.2d at 60; Northern Pacific Railway Co. v. Zontelli Bros., Inc., 161 F.Supp. 769, 774 (D.C.Minn.1958); Nelson v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., 260 Minn. 61, 108 N.W.2d 720, 722 (1961); Dahlquist v. Minneapolis & St. L. Ry Co., 230 Minn. 203, 41 N.W.2d 587 (1950).

We conclude that the evidence would not have supported a verdict for the plaintiff and intervenor had the issues been resolved favorably to them by the jury on their claims against the railroad.

Plaintiff...