Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Honorable ALLEN SHARP, Judge.
Clark, Associate Justice (Retired),*fn* Cummings and Pell, Circuit Judges. Pell, Circuit Judge, dissenting.
CLARK, Associate Justice:
This is a diversity suit involving a collision occurring at a grade crossing in Porter County, Indiana, between a Baltimore and Ohio Railroad Company (B & O) freight train and an automobile driven by Ralph Johnson, a squad commander of the Indiana State Police. The jury returned verdicts of $325,000 for Johnson and $50,000 for his wife, Nardine. B & O makes six arguments on appeal, each relating to both judgments: (1) lack of sufficient evidence of negligence on the part of B & O, (2) contributory negligence as a matter of law on the part of Johnson, (3) improper jury instructions and failure of proof concerning the grade crossing's alleged extra-hazardous condition, (4) the inapplicability of an Indiana weed-cutting statute to negligence claimed, (5) the power of the jury to forgive Johnson's alleged violation of an Indiana safety statute, and (6) the excessiveness of the jury awards.
1. The Circumstances of the Accident :
On Thursday, September 25, 1969, Johnson went fishing alone at Forszt Lake and parked his car some 500 to 1,000 feet from a B & O grade crossing. At dusk he drove his car with the headlights burning eastward toward his home. As he went along the road down a slight incline toward the B & O crossing involved here, he came to a stop some 20 to 30 feet from the B & O intersection with the road. He had a clear vision down the track to his right for a distance of two hundred to three hundred feet. He looked to both his right and his left, but neither saw nor heard the approaching train and so drove on over the crossing. The B & O freight train hit his car on the right rear side. Johnson remembered nothing more until he regained consciousness at the hospital.
Johnson was quite familiar with the area and testified at trial that the foliage and trees along the right of way were about the same as they were on his previous visits. He testified further that he could see only 200 to 300 feet to his right because of the foliage, weeds, undergrowth, and trees that grew on the railroad right of way. There is a curve in the track to the right from the direction the train came that is a half mile or less from the grade crossing.
The train was a freighter with three diesel units, 55 cars and a caboose. The headlight on the train was burning and threw a beam of about 1,000 feet. About 1600 feet from the grade crossing, there was a whistle post at which the engineer was supposed to blow the whistle. Although the engineer on the train testified at trial that he started to blow the whistle at that post and continued until the collision, there were several persons who testified to the contrary. At the time of the accident, three men were approximately 400 feet from the grade crossing working on the roof of a house under an artificial light powered by a small generator. Each testified at trial that he never heard the train whistle. Two other people who were in their respective homes from 200 to 500 feet and 1,000 to 1,500 feet from the intersection when the collision occurred did not remember hearing a train whistle. The head diesel ran at least two miles beyond the grade crossing after the collision before coming to a stop.
Johnson was 52 years of age at the time of the collision. He had been with the Indiana State Police since 1951 and enjoyed the rank of sergeant. Previously he had injured his back in line of duty. He underwent surgery for that injury, a lumbar laminectomy for a herniated inter-vertebral disc. He had been certified, however, to return to duty some two years before the B & O collision and had been promoted to line commander, which position he held at that time. Two months after the collision, Johnson was returned to duty but was retired thereafter on October 10, 1972, for his disability. He received full pay before retirement which was $532 each two weeks. His hospital, medical and doctor bills totaled $3,778.61.
2. The Sufficiency of the Evidence :
While there is, of course, conflicting testimony on the question of the negligence of B & O to sound the whistle, the hazard of the crossing, and B & O's failure to clear the right of way of trees, shrubbery, etc., nonetheless, the record discloses ample evidence to take each of these issues to the jury. Consequently, the jury's verdict is not assailable here. Likewise, there was testimony by Johnson that he brought his car to a complete stop before negotiating the grade crossing, and heard no whistle and saw no train, and only then proceeded across the tracks. Such evidence was sufficient to put the question of Johnson's culpability for violating the Indiana safety statute to the jury. Thus again the finding of the jury that he was not contributorily negligent is not assailable here. The two duties imposed by the Indiana statute, Burns' Ind. Stats. Annot. - Code Ed. 9-4-1-106 [47-2114] (1973), namely to stop within 50 feet but not less than 10 feet from the tracks and to proceed only when it can be done with safety, were fully performed by Johnson. He testified that he stopped within fifty feet of the tracks and, not hearing any whistle, train bell, or seeing any searchlight, proceeded as a person of ordinary prudence would do across the tracks. The jury certainly believed Johnson and thus determined that he was not in violation of the Act. It is true that the train was actually in a most hazardous position. But that fact was unknown to Johnson. The train's searchlight might not have been visible to him because of the angle of the track crossing. Moreover, the condition of the roadway, as well as the existence of the curve in the tracks some half mile from the crossing, only contributed to the obstruction of his view caused by the heavy foliage, weeds, underbrush and trees on the railway right of way.
We agree with the jury that Johnson was not contributorily negligent, but even if we disagreed, there is sufficient though disputed evidence to find that he was not. The jury decided the issue on that evidence and we cannot disturb that finding.
The same is true of the awarding of the damages. There was ample evidence of a severe injury to Johnson. We cannot say that the verdict was so monstrous that a remittitur is required. This is also true of the $50,000 recovery of Mrs. Johnson.
3. Erroneous Instructions :
B & O also insists that the issue and instruction on "extra-hazardous crossing" should not have been submitted to the jury by the trial court. It claims that the power to make such a determination rests exclusively in the Indiana Public Services Commission and that there was no evidence supporting such a charge in any event. However, in Hartzler v. C & O Railway Co., 433 F.2d 104 (7th Cir. 1970), this Court held that it was permissible to leave the issue of an extra-hazardous crossing to the jury, exactly what was done here. Hartzler followed the lead of the Indiana Supreme Court in Central Indiana Railway v. Anderson Banking Company, 252 Ind. 270, 247 N.E. 2d 208 (1969). B & O seems to say that Indiana has changed the Anderson rule by statute. However, Anderson was decided some four years (1969) after the amendment to which B & O refers was enacted (1965). See also, Indianapolis Union Railway v. Walker, 162 Ind. App. 166, 318 N.E. 2d 578 (1974). Our examination of the record shows ample evidence supporting the negligence of the B & O aside from the hazardous nature of the crossing. In any event, the instruction was in keeping with Indiana law.
Finally B & O objects to an instruction that a violation of Indiana's weed-cutting statute, Burns' Ind. Stats. Annot. - Code Ed. 8-3-7-1 [55-3512] (1973), constitutes evidence of negligence. The statute requires the cutting and destruction of "noxious weeds" growing on railroad property between July 1 to July 20 of each year. We find no harm in the instruction. While the statute may well have been primarily aimed at the spread of weeds and brush to contiguous land, the instruction required a finding not only that B & O had violated the statute but also that such violation appreciably contributed to Johnson's injuries. This removed any possible objection to the court's action in this regard.
We therefore find no merit in the contention.
Finding no error in the trial, we affirm the judgments.
Finding no error in the trial, we affirm the judgments.
PELL, Circuit Judge, dissenting.
With the greatest of respect for the judicial acumen of the members of the majority of the present panel, I am constrained to come to the conclusion that the disposition of this appeal rests too much upon the tendency that overbusy appellate courts have to worship mechanically at the shrine of inviolability of the findings of fact which the trial trier of facts has purported to make. From the record of this case I cannot realistically conceive that the collision between the Johnson automobile and the defendant's train was not in part proximately caused by negligence of the plaintiff driver. I therefore think it our duty to say that under the controlling law of the state of Indiana since Johnson was contributorily negligent as a matter of law there should be a reversal. For that reason, and because of an instruction error, I dissent.
For the purposes of this dissent on the sufficiency question, I must assume that there was evidence from which the jury could find there was negligence on the part of the defendant proximately causing the collision. Further, I must assume all facts in dispute as to contributory negligence from the point of view most favorable to the plaintiffs. However, I must also apply the law of Indiana in examining the question of contributory negligence. Hoesel v. Cain, 222 Ind. 330, 53 N.E. 2d 165 (1944). There are no degrees of negligence in Indiana, and if the plaintiff driver was guilty of any negligence, however slight, and such negligence proximately contributed to his injury, he cannot recover. Huey v. Milligan, 242 Ind. 93, 97, 175 N.E. 2d 698, 700 (1961).
Looking at the facts as is done in the majority opinion, I note that the collision happened at dusk when common knowledge indicates beyond any reasonable argument that a locomotive headlight throwing a beam about 1,000 feet would have its visibility heightened. This was not a case in which the sun was shining brightly from the direction from which the train was coming. Assuming that Johnson stopped some 20 to 30 feet from the intersection, as his changed testimony indicated,*fn1 he either did not look in the direction from which the train was coming or he did not see that which of necessity was visible. Since the jury apparently credited his testimony that he did stop and that he did look, the only conclusion left is that he failed to observe that which he would have seen if he had exercised the care of a reasonable man. He claims he did not see the oncoming train. It is obvious that he did not see it. There is no indication that he was bent on suicide. Nevertheless, the train was there. It did not materialize from thin air. Its approach to the point of impact was simultaneous with that of Johnson. Both arrived at the intersection at the same time and even if the train's speed were 10 times that of Johnson, a train speed far greater than any supported by the evidence, the locomotive could not have been much more than a football field away from the intersection when Johnson started up after his claimed stop. This was a crossing with which he was familiar marked by the statutory cross-buck "Danger" sign. As to the direction from which the train was coming Johnson did not even have to look to a full 90 degrees as the angle of the track with relation to the highway permitted his seeing down the tracks prior to entrance on the tracks by turning his head at approximately a 42 degree angle to the right.
The majority opinion refers to the fact that the train was actually in a most hazardous position as Johnson entered on the tracks but that fact was unknown to him. I cannot conceive upon the undisputed physical facts here any basis for determining that the lack of knowledge resulted from anything other than carelessness on his part which proximately was a contributing cause of the collision. There was nothing about the angle of the crossing which would have prevented Johnson from seeing the locomotive headlight if he had looked with the care required of a reasonably prudent person. There was nothing about the condition of the roadway to have contributed to the obstruction of the view. This was a country road with no other distracting traffic which also required the attention of the automobile driver. The majority also suggests obstruction from the existence of the curve in the tracks some half mile from the crossing. The locomotive, however, was not a half mile away but at the crucial time was, of physical necessity, within several hundred feet of the intersection. Finally, the majority opinion refers to the heavy foliage, weeds, underbrush and trees on the railway right of way. This assertion simply is not supported by the record. On the morning following the accident, photographs were taken from various points on the highway looking down the tracks. A copy of one of these is appended to this dissent. The photograph taken at a point 30 feet from the south, or nearest, rail although scarcely an example of the finest in the photographic arts, clearly demonstrates that a side road was alongside the tracks and all trees and shrubs were well away from the tracks and could not have been obstructive. What weeds there were were low lying and could not have interfered with the view of the locomotive headlight at the elevation it was.
It has not been suggested that this court in Moss v. Pennsylvania R. Co., 146 F.2d 673 (7th Cir. 1945), did other than apply Indiana law correctly. There this court found it unnecessary to consider the Indiana statute requiring a motorist to stop when a train is in hazardous proximity:
"Ignoring this statute, it still seems to us clear that deceased should have stopped, rather than have driven on the track in front of the engine.
In reaching this conclusion we are taking the most favorable and charitable view of deceased's action, namely, that he did not endeavor to race with the engine, but rather that he failed to look and therefore failed to see the oncoming train. We are accepting the estimate of plaintiff's witness rather than the measurements of defendant's witnesses, solely on the ...