Before EVANS, KERNER, and MINTON, Circuit Judges.
We approach the case on the hypothesis that where the sufficiency of the evidence to support the verdict is the only controverted issue, only evidence most favorable to plaintiff will be considered. Likewise narrowing the fact study is our acceptance of plaintiff's evidence as sufficient to establish her charge of negligence on defendant's part.*fn1
Thus narrowed, our only inquiry is one of contributory negligence.
The accident occurred about 3 P.M., December 6, 1941, on a somewhat dark, but stormless day. The deceased drove his automobile along the Austin highway from the south, onto defendant's right of way, and in front of an oncoming train. In doing so he was struck and fatally injured. He never regained consciousness although he lived several days.
Ordinarily, this simple undisputed factual statement would settle the question of liability.*fn2 Unexplained, the facts establish contributory negligence as a matter of law. Plaintiff, however, offers an explanation of deceased's conduct. At least an attempt to do so is made. It is based on the theory of an obstructed view of the oncoming train. The nature of the alleged obstruction and its effect as an excuse for the deceased's action, therefore, become the precise question of our inquiry.
That an obstruction of the view of a rapidly moving train may explain or excuse the traveler from what would otherwise be negligence, is not debatable. Pokora v. Wabash Ry Co., 292 U.S. 98, 54 S. Ct. 580, 78 L. Ed. 1149, 91 A.L.R. 1049.
The query then is, What are the facts in the instant case? In an effort to answer this query, we have assumed:
(a) In applying the law, each case must be determined by its own facts.
(b) The law, as announced by the Indiana state courts, governs.
(c) The controversy here, as in most personal injury cases, is not over the applicable law, for the decisions are quite uniform, but involves a study of the facts peculiar to this case and the application of settled Indiana law thereto.
Controversy, if any, must spring from an attempt to ascertain the undisputed facts and supplement them by the controverted facts construed by us most favorably to the plaintiff.
Herewith reproduced are two photographs.
One shows the situation at the crossing where the accident occurred. The other is
(Photographs omitted) a view of the railroad right of way and the tracks as the traveler approached the crossing. It purports to show the distance (a mile) the traveler, approaching from the south, could see down the railroad right of way, and also to show the absence of any obstruction, when the photographer stood forty-four feet from the nearest rail over which the train moved.
The only possible dispute is over the number of feet the photographer stood south of the track.
The evidence is that as the deceased continued his way along the Austin highway and approached the railroad right of way, he reached a point where there was some obstruction to his view. To his right, a rise of land, referred to as a mound or knoll, partially obstructed the view. It was several feet high (maximum of 9 feet) and upon it grass had grown. It extended parallel to the right of way about two hundred feet and ...