Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.
Plaintiff, Lester Brubeck, brought this action to recover damages for personal injuries, loss of his automobile, and loss of his wife's services, resulting from a collision between his automobile and defendant's locomotive due to defendant's alleged negligent operation of its locomotive.
Defendant appeals from judgment for plaintiff, relying on errors allegedly made in the District Court's rulings on evidence, failure to grant motion for a trial by jury, failure to make findings in favor of defendant, and making findings contrary to the physical evidence.
On the morning of January 16, 1962, plaintiff was driving his automobile, with his wife as a passenger, at about 25 miles per hour, south bound on the Rosedale-Rockville Road, a rural highway in Parke County, Indiana, toward the intersection of that highway with the railroad tracks owned and maintained by defendant. The road was covered with ice and snow and was in a slippery condition. Defendant's locomotive was proceeding in a northeasterly direction toward the same intersection at about the same speed. These facts are not contested.
Plaintiff testified, and the District Court found, that he looked in both directions along the tracks as far as he was able to see as he approached the crossing.
There was a conflict in the testimony as to whether the train crew did or did not give audible warning of the approach of the train as required by Burns' Indiana Annotated Statutes, § 55-1243. The District Court found that such warning was not given.
The District Judge concluded that negligence in failing to give audible warning of the approach of the train was the proximate cause of the injury and damage suffered by plaintiff who was found to have been at all times in the exercise of reasonable care for his own safety.
Plaintiff testified that his view to the southwest was obscured by snow covered weeds and brush and a hanging tree limb, and that the locomotive itself was covered with snow and showed no headlight, so that its visibility was severely limited.
The fireman of the train said that the headlight was on and that the locomotive was not covered with snow.
The District Court specifically found that when plaintiff was able to see the approach of the train, he was unable through reasonable care to avoid the collision, the impact being between the right front of the engine and the right rear fender of plaintiff's automobile.
Plaintiff stated that he thought he would have been able to stop if the road had been dry. Defendant argues from this that the icy condition of the road was the sole proximate cause of the accident. It is clear however, that plaintiff would have had ample space to stop his automobile and avoid the collision had he received the statutory audible warning of the train's approach when it was a quarter of a mile away from the crossing. Hart v. Wabash R. Co., 7 Cir., 1949, 177 F.2d 492, 494, on which defendant relies is distinguished by the fact that the driver of the automobile in Hart saw the approaching train and applied his brakes but nevertheless skidded forward onto the railroad crossing. Plaintiff here testified that he did not see the locomotive because of the snow covered weeds and brush and the snow on the locomotive until both his automobile and the train were about 20 to 25 feet from the intersection. As it was, he nearly succeeded in getting his automobile across the tracks ahead of the train. See Colas v. Grzegorek, 7 Cir., 1953, 207 F.2d 705, 710, where this Court said:
"In order for the accident to be solely attributable to the icy condition of the highway, it must be evident that the accident would in some manner have happened because of the ice even if Grzegorek or Waltz had not been negligent. [citing cases] That is obviously not the situation here."
As indicated, there was a conflict in the testimony about the whistle. Plaintiff and his wife testified that there were no whistles until after the impact. They both said that ordinarily they could hear the train whistles as far as their ...