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Menke v. Southern Railway Co.

decided: August 17, 1979.

LINDA GALLOWAY MENKE, PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL RAY GALLOWAY, DECEASED, PLAINTIFF-APPELLEE,
v.
THE SOUTHERN RAILWAY COMPANY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. EV 77-C-48 -- Cale J. Holder, Judge.

Before Pell, Circuit Judge, Moore, Senior Circuit Judge,*fn* and Wood, Circuit Judge.

Author: Wood

The plaintiff-appellee, Linda Galloway Menke as the personal representative of the estate of Michael Ray Galloway, initiated this wrongful death action in an Indiana state court against the defendant-appellant, Southern Railway Company (Southern). Galloway died when a train operated by Southern collided with the truck he was driving. The action was removed to the federal district court and tried before a jury, Southern now appeals from the judgment entered upon the jury's verdict in favor of the plaintiff. Southern raises three issues for our consideration.

(1) Is the Indiana Act, Ind.Code § 8-6-7.6-1, upon which the plaintiff predicated one of her theories of negligence, so vague and uncertain that it deprives the defendant of due process?

(2) If the above Indiana Act is constitutional, did the trial court err by refusing to instruct the jury more specifically as to the duty the statute imposed on Southern?

(3) Did the trial court err by refusing to instruct the jury that to find that Southern breached its common law duty to maintain crossing signals, it must find that the railroad knew that the signal was not working properly?

We hold that the answer to each of these questions is no and affirm the judgment of the district court.

The accident occurred on March 31, 1975, at about 11:20 a. m. at a railroad crossing on state road 61 in Pike County, Indiana. At this particular crossing, Southern's right of way is fifty feet wide on each side of the tracks. Galloway was traveling north in a large truck hauling coal. He was driving at between five and fifteen miles per hour when the train, approaching the crossing from the east at approximately forty-five miles an hour, struck the cab of the truck. At trial, the plaintiff presented four different theories upon which the jury could have found that Southern was negligent:

(1) Southern's failure to sound a bell or whistle not less than 1320 feet before the crossing as required by Indiana law. Ind.Code § 8-6-4-1(a).

(2) Southern's failure to maintain the automatic signal devices (flashers) at the crossing in good working order.

(3) Southern's failure to maintain its right of way in a condition so that approaching motorists would have an unobstructed view for 1500 feet in both directions as required by law. Ind.Code § 8-6-7.6-1.

(4) Southern's operation of its train at an unreasonable and excessive speed.

Southern does not contest the sufficiency of the evidence to support any of these theories, so we need not detail the evidence in great detail. It is sufficient to note that testimony as to whether the train's bell or whistle sounded and whether the flashers were functioning properly prior to the impact was conflicting. Evidence as to the range of unobstructed vision that an approaching motorist would have of the tracks at various distances from the crossing also differed. The evidence also presented a jury question on the issue of whether the train's speed was excessive. Thus, ...


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