Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 81 C 357 - James E. Noland, Judge.
Before COFFEY and FLAUM, Circuit Judges, and WYATT, Senior District Judge.*fn*
COFFEY, Circuit Judge. The plaintiff, Wilma Jean Smith, appeals a jury verdict finding the defendant, the Chesapeake and Ohio Railway Company ("Chesapeake"), not liable for injuries suffered by Smith as a result of a collision between an automobile in which Smith was a passenger and one of the Chesapeake's trains. We affirm.
The record reveals that on November 18, 1980, Smith was a passenger in an eastbound car driven by a Robert Chambers when Chambers' car collided with a northbound Chesapeake freight train at the Waterfall Road railroad crossing in Richmond, Indiana. This railroad crossing is cut into a small hill, and traffic traveling eastbound toward the crossing approaches it on a slight downhill grade at a 130 degree angle to the tracks. As a vehicle travels east approaching the crossing, the driver's vision of the tracks south of the crossing is obscured by shrubs and trees along the right side of the road. At trial conflicting evidence was presented concerning at what point a driver approaching the tracks from the west would have a clear view of the tracks south of the crossing. For example, a Richmond police officer testified that when a car is approximately ten feet west of the crossing he can see "maybe fifty feet" down the tracks to the south. Chesapeake, however, offered evidence that at approximately twenty feet from the crossing one can see an approaching train 660 feet down the track.
At the time of the collision, the crossing was equipped with a standard crossbuck sign and silent flashers. The investigating police officer observed that these flashers were operating as he approached the crossing immediately after the accident. Pursuant to Indiana law, train crews are required to sound the train's horn intermittently from a point 1500 feet from the crossing until the train traverses the crossing. At trial, the train engineer testified that he sounded the train's whistle approximately 1/4 mile from the crossing and that the train's headlight was on and the train's bell was ringing continuously on approach. A crew member testified that immediately prior to the impact he observed the flashers operating as the train approached the crossing.*fn1 The automatic flashers are electronically activated as the train passes over a contact point in the tracks approximately 1200 feet from the crossing. Chambers testified that he neither observed the warning lights flashing nor heard the train's horn. He testified that he was traveling at approximately 10 miles per hour as he approached the crossing and reduced his speed as he approached the tracks. Just as he reached the edge of the tracks, Smith shouted to him that a train was approaching; however, Chambers did not react quickly enough to prevent the collision.*fn2 The asphalt road on the day of the accident was wet, as there had been a snowfall the night before. Earlier on the day of the accident, Chambers changed a flat right front tire with a spare "bald" tire.*fn3 Two days later, while discussing the accident with the Richmond police, Chambers admitted that he "slid" into the crossing.*fn4
At the close of evidence, the jury was instructed that under Indiana law a railroad has a duty to determine if a crossing is extra hazardous and to provide reasonable and adequate warning to alert motorists of an approaching train. The court also submitted several jury instructions quoted from Indiana statutes and a jury instruction on contributory negligence. Smith complains that the evidence submitted at trial did not justify a contributory negligence jury instruction, and the jury instructions quoting Indiana statutory law were erroneous since they misled the jury as to the duty of the railroad to assess the hazardousness of the railroad crossing. Thus, Smith requests a new trial.
Pursuant to Indiana law, a railroad has a duty to protect the public from extrahazardous railroad crossings and is required to provide adequate warning to highway travelers of approaching trains. The question of whether or not a crossing is extra hazardous and whether the railroad has provided reasonable warning under the circumstances is a question of fact for the jury. Central Indiana Railway Company v. Anderson Banking Company, 252 Ind. 270, 247 N.E.2d 208, 211 (Ind. 1969); Stevens v. Norfolk and Western Railway Company, 171 Ind. App. 334, 357 N.E.2d 1, 4 (Ind. App. 1976). In this case, the district court's instruction as to the Railroad's duty to determine if the crossing is extra hazardous and to provide reasonable warning was in accord with Indiana law:
"The defendant Chesapeake and Ohio Railway Company has a duty to give reasonable and adequate warning to the traveling public of the approach of trains across public highways. Although the track of the railroad is of itself a warning of danger to a person approaching it, the defendant has a duty to exercise reasonable and ordinary care by adopting a reasonably safe and effective mode, commensurate with the danger at a particular crossing, of warning travelers of the approach of trains.
In determining whether the warning devices as they existed on November 18, 1980 provided reasonable and adequate warning to the traveling public of the approach of the train, or whether the particular railroad crossing was extrahazardous, you may consider the facts, if any, concerning the presence or absence of warning signals, gates and bells, together with all other circumstances concerning the crossing, such as obstructions to view, if any, the nature and gradation of the terrain immediately adjacent to the crossing, the angle at which the tracks intersect the highway, the time of day, the speed of the train, the near situation of trees, vegetation and the like, the curves in the track, and the frequency with which travelers pass over the crossing.
If you find from a preponderance of the evidence that the railroad crossing was extrahazardous, then you may consider whether or not the defendant provided reasonable warning on the occasion in question of the approach of the train. If you find that defendant failed to provide reasonable warning under the ...