Hastings, Senior Circuit Judge, and Kiley and Kerner, Circuit Judges.
Defendant-appellant, Chesapeake and Ohio Railway Company (Railway), appeals from a jury award of $75,000 in favor of plaintiff-appellee, Jerome C. Hartzler, for injuries incurred when plaintiff's car collided with defendant's train which was stopped or moving slowly across an oblique public highway intersection. Jurisdiction is based on diversity of citizenship. We affirm the jury's finding for plaintiff and the award.
The parties, pursuant to a pre-trial order, stipulated that on the night of October 26, 1966, at approximately 9:15 o'clock, the plaintiff's automobile collided with the sixtieth car of defendant's train, a black coal car, where County Road 800E crossed a single set of defendant's railroad tracks. It was further stipulated that at this particular railroad crossing defendant had erected a single highway cross-arm sign approximately eleven feet high, but that
said crossing sign was not visible to the traveling public, including plaintiff, approaching said crossing from the north when a train was standing on or passing over said crossing, [and] that there were no other signs, signals or warning devices installed, erected or painted on or near the intersection of said highway and defendant's tracks other than the aforesaid cross-arm sign.
The parties also stipulated
that at said time and place, there were no lights at or near the crossing and plaintiff's was the only vehicle at or near the crossing and that at the time of said collision there were no disc warning signs on either the north or south side of the crossing and there had been no such signs for at least two years prior to the accident, although such a sign did exist within eight years prior to said two-year period.
Plaintiff suffered retrograde amnesia, resulting from the accident, and was not able to testify to any facts that occurred during the period several days prior to the accident until several days after the accident. In the absence of eyewitnesses, much of plaintiff's case on liability was developed by two experts. Dr. J. Stannard Baker, a traffic engineer and Director of Research and Development at the Traffic Institute of Northwestern University, testified that as one approaches the crossing from the north "there is a definite slope downward" and this decreases the ability to stop upon application of the brakes. Dr. Baker further testified that based upon an examination of the scene, skid marks, photographs and his evaluation of damages to the coal car and automobile, he was of the opinion that Hartzler was traveling between 42 and 54 miles per hour at the time he applied the brakes (the speed limit on 800E was 65 mph). Dr. Baker then stated at the speed of 42 miles per hour, approaching a railroad track intersecting the highway at the the angle defendant's track intersected and having a grade similar to highway 800E, the point at which the driver could no longer avoid a collision would be 182 feet. This point of no escape, Dr. Baker stated, would increase to 275 feet if the driver were going 54 miles per hour.
The second expert testimony was given by John W. Mihelich, a professor of physics at Notre Dame. Professor Mihelich testified that in his opinion, a dark coal hopper, whether stopped or moving slowly, would be invisible at 150 feet.
My opinion is that with normal headlights, with reflection from the black-top, reflection off the coal train at an angle with respect to the highway, with it reflecting back from the train into the eye, with there being no sharp features to outline the train, such as, say, perhaps a light background, that in all likelihood, the train would be below the level of perception for a distance fairly close beyond the range of the headlights striking the pavement, and I would venture to guess that at 150 feet that train would be invisible, if it's truly black with no background.
Both experts' opinions indicate that plaintiff did not see the train until it was too late to avoid a collision.
Defendant-appellant Railway contends that since it violated no statutory duty towards plaintiff, it was error to allow the jury to determine liability based on the common law rules of negligence, because under Indiana law common law negligence does not apply to a railroad where it occupies a crossing and there is a collision. While we agree defendant violated no statutory duty, we disagree that common law negligence rules are inapplicable.
Since our jurisdiction is based on diversity of citizenship, we apply the law of Indiana as interpreted by its highest court. The latest pronouncement of the Indiana Supreme Court concerning the applicability of common law negligence rules to collisions at railroad crossing was made in the recent case of Central Indiana Ry. Co. v. Anderson Banking Co., Ind., 252 Ind. 270, 247 N.E.2d 208 (1969). The court in Central Indiana recognized that prior Indiana law had adopted the minority view, that a railroad had no duty under any circumstances to warn the public of the presence of a train on a crossing. The court then stated the majority rule:
The doctrine prevailing in most jurisdictions, as the later cases show, is that where there is evidence that the particular crossing, either because of its more or less permanent features or because of circumstances existing and affecting its use at the given time, was more than ordinarily hazardous, a question for the jury or the trier of facts is usually presented as to whether or not ...