Before HASTINGS, Chief Judge, and DUFFY and SWYGERT, Circuit Judges.
This diversity action was brought by plaintiff Sara Jane Lappin, Administratrix of the estate of James D. Lappin, deceased, against defendant The Baltimore and Ohio Railroad Company to recover damages for the alleged wrongful death of plaintiff's husband James D. Lappin.
Trial was by jury and a general verdict was returned in favor of plaintiff for $45,000.
On appeal, defendant contends the district court committed reversible error in denying defendant's motions for judgment notwithstanding the general verdict, directed verdict and new trial, and in entering an order directing entry of judgment in accordance with the general verdict and entering judgment upon the general verdict.
The accident occurred on February 28, 1960, between 2:00 a.m. and 3:00 a.m. near Columbus, Ohio.
Decedent, a truck driver employed by Spector Motor Freight System, was driving a loaded diesel truck in a westerly direction on Clime Road. As he approached the point where the road intersected defendant's railroad tracks, defendant's diesel powered train was proceeding north toward this intersection at approximately forty to forty-five miles per hour.
Howard Cornelius, a truck driver for Spector, testified he was driving a truck east on Clime Road immediately prior to the accident. He crossed the railroad tracks when the approaching train was approximately 1100 feet south of the intersection. About 150 yards east of the intersection Cornelius' truck met and passed decedent's truck. Cornelius blinked the lights of his truck which, he testified, is a "code of the road" danger signal among truck drivers.
Robert W. Haines testified that preceding the accident he had driven his automobile across the railroad tracks at the Clime Road intersection traveling west while taking his baby-sitter home. As he crossed the tracks he observed the headlight of the train one and one-half or two miles south of the crossing.
Haines, after delivering the baby-sitter to her home, returned toward the intersection. Aware of the approaching train, he stopped his car on the west side of the crossing. He observed decedent's truck as it approached him from the time it turned off Route 3, a highway approximately 300 yards east of and parallel to the railroad, until the accident.
Haines testified that decedent's truck slowed down momentarily as it reached the incline on the east side of the tracks, but did not stop. He heard the sound of the train's brakes being applied when the engine was about 100 feet south of the crossing. Seeing that a collision was imminent, Haines flicked the headlights of his automobile to low and high beam several times in an attempt to attract decedent's attention.
He testified that the train struck decedent's truck back of the cab either on the rear wheels of the tractor or the front wheels of the trailer. He estimated the speed of decedent's truck to be thirty-five to forty miles per hour at the time of the accident.
Upon defendant's motion, the court submitted interrogatories to the jury which resulted in the following special verdict in addition to the general verdict:
"Special Verdict: We, the jury in this action, find the following special verdict:
"Prior to the collision here in question did the engineer of the Baltimore and Ohio Railroad sound the whistle or horn on the engine?
"Prior to the collision here in question, did the engineer of the defendant, The Baltimore and Ohio Railroad ...