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Docket Number

No. 14680.

Attorney(S)

William E. Mills, Arthur A. May, So. Bend, Ind., for appellant. Richard O. Olson, Chicago, Ill., Louis C. Chapleau, Arthur J. Perry, So. Bend, Ind., for appellee.

Judges

John Simpson Hastings

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Smart Summary

Summary of Opinion: Beatrice Alford, Administratrix v. New York Central Railroad Company

Factual and Procedural Background

Plaintiff Beatrice Alford, administratrix of the estate of Leslie B. Alford, brought a diversity wrongful-death action against New York Central Railroad Company after Leslie Alford was killed in a collision between an automobile and defendant's train at the Pine Road railroad crossing in St. Joseph County, Indiana. The complaint alleged negligence by the railroad; the defendant denied liability and pleaded contributory negligence by the decedent. The case was tried to a jury, which returned a verdict for the defendant. Judgment was entered for the defendant and the plaintiff appealed, assigning errors based on evidentiary rulings and jury instructions. The Court of Appeals for the Seventh Circuit affirmed the district court's judgment.

Legal Issues Presented

Whether certain photographs of the accident scene taken well after the collision (December 1963) were admissible evidence despite changes in physical appearance.
Whether the trial court properly instructed the jury on contributory negligence and related duties (including passenger duty to exercise reasonable care and driver's duty to look and listen at railroad crossings).
Whether the trial court erred in refusing plaintiff's tendered instructions concerning (a) equal duties of automobile operator and locomotive operator and timely warning by the railroad, and (b) the railroad's duty to maintain safety devices at the crossing under Ind.Ann.Stat. § 55-2015 (Burns' 1951).

Arguments of the Parties

Plaintiff-Appellant's Arguments

Objected to admission of photographs taken at the scene in December 1963 on the ground that the physical appearance of the surroundings had changed and thus the later photographs could mislead the jury.
Objected to several instructions given by the court (including defendant's instructions defining passenger and driver duties) and argued error in the court's refusal to give her tendered instructions 13 and 38, which concerned equal duties and maintenance obligations under Ind.Ann.Stat. § 55-2015.

Defendant-Appellee's Arguments

Denied liability and asserted contributory negligence of plaintiff's decedent in its answer, placing that defense before the jury.
Presented and obtained instructions defining passenger and driver duties and submitted evidence (including photographs taken after the date of the accident) that the trial court admitted over plaintiff's objections.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Haven v. Snyder, 93 Ind. App. 54, 176 N.E. 149	Authority referenced for the principle that admission or rejection of photographs lies within the trial court's discretion.	Quoted (via Drohan) as part of the rule that photograph admissibility is discretionary and subject to review only for abuse of discretion.
Drohan v. Standard Oil Co., 7th Cir., 168 F.2d 761, 765 (1948); cert. denied, 335 U.S. 845, 69 S.Ct. 69, 93 L.Ed. 396	States the applicable rule that the admission or rejection of photographs is within the discretion of the trial court.	The court relied on this rule to uphold the district court's admission of photographs taken after the accident (December 1963), finding no abuse of discretion and no prejudicial error.
Vaughn v. National Tea Company, 7th Cir., 328 F.2d 128 (1964)	Identified as an accord to the rule about photographic evidence discretionary admissibility.	Used as supporting authority that the admission of the later photographs was within the trial court's discretion.
New York Central Railroad Co. v. Public Service Commission of Indiana, 237 Ind. 544, 147 N.E.2d 547 (1958)	Interprets Ind.Ann.Stat. § 55-2015 regarding "extra-hazardous grade crossings" and additional warning signals by order of the Public Service Commission of Indiana.	The court cited this case to show the statute's application is limited to crossings covered by PSC orders and therefore inapplicable to the crossing involved in this case; thus the trial court properly refused plaintiff's instruction predicated on that statute.

Court's Reasoning and Analysis

The court addressed the challenged rulings in two primary categories: evidentiary rulings (photographs) and jury instructions.

On the photographs: The plaintiff offered photographs taken on the date of the accident; the defendant offered two photos taken the next day and four additional photographs taken in December 1963. All but the December 1963 photographs were admitted without objection; the later four were admitted over plaintiff's objection. The court applied the established principle that admission or rejection of photographs is within the trial court's discretion (citing Drohan and the Indiana authority referenced therein, and noting Vaughn as accord). Given that the jury was advised about changed conditions and that earlier photographs taken contemporaneously were also before the jury, the court concluded the later photographs went to weight rather than admissibility, found no abuse of discretion, and held their admission was not prejudicial error.

On jury instructions: The court reviewed the instructions in their entirety. Instruction 2 (on contributory negligence) and Instruction 5 (stating Indiana's rejection of comparative negligence) were held to correctly state the law and to be properly submitted because the evidence—specifically uncertainty as to the identity of the driver and surrounding facts—submitted contributory negligence to the jury. The court found defendant's instruction 32 (passenger's duty to exercise reasonable care) and instruction 28 (driver's duty to look and listen at a railroad crossing) to be correct statements of the law when read as a whole and not prejudicial.

The court rejected plaintiff's contention that tendered instruction 13 (regarding equal duties and timely warning) was necessary because those matters were adequately covered by other instructions. Instruction 38, which attempted to invoke Ind.Ann.Stat. § 55-2015 concerning maintenance of safety devices, was refused appropriately because that statute pertains to extra-hazardous crossings and PSC-ordered additional warnings, which the court determined did not apply to the crossing in this case (citing New York Central v. Public Service Commission of Indiana).

Finally, the court noted that there was no challenge to the sufficiency of the evidence supporting the verdict; the jury heard the evidence and returned a verdict for the defendant. Having found no prejudicial error in evidentiary rulings or in the instructions, the court affirmed.

Holding and Implications

HOLDING: AFFIRMED. The judgment of the district court, which entered judgment on a jury verdict for the defendant, was affirmed by the Seventh Circuit.

Implications:

The direct effect is that the district court's judgment for defendant New York Central Railroad Company stands and plaintiff's appeal is denied.
The court applied settled principles: photographic evidence taken after an event may be admitted within the trial court's discretion and such evidence typically bears on weight rather than admissibility when the jury is apprised of changed conditions and contemporaneous photos are available.
The court applied Indiana law regarding contributory (not comparative) negligence and upheld instructions stating passenger and driver duties at railroad crossings. The opinion does not purport to establish new precedent; it affirms application of existing rules to the facts presented.

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Beatrice ALFORD, Administratrix of the Estate of Leslie B. Alford, Deceased, Plaintiff-Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee.

HASTINGS, Chief Judge.

Plaintiff Beatrice Alford, administratrix of the estate of Leslie B. Alford, deceased, brought this diversity action against defendant New York Central Railroad Company. She sought to recover damages for the wrongful death of her husband, Leslie B. Alford, who was killed while riding in a motor vehicle, resulting from a collision with defendant's train.

The complaint charged defendant with negligence in the operation of its train. Defendant answered in denial and further charging plaintiff's decedent with contributory negligence.

The case was tried to a jury which returned a verdict for defendant on which judgment was entered. Plaintiff appealed. The errors relied upon for reversal arise out of instructions and rulings on evidence. We affirm the judgment of the district court.

The accident in question occurred on June 22, 1960 at the intersection of Pine Road and defendant's railroad tracks in St. Joseph County, Indiana, at about 7:30 a.m.

Leslie Alford was at his father's home on Pine Road about one mile south of the intersection. At this place Leslie, his father Lascom Alford and 12-year old nephew Lee Alford entered a Packard automobile. The automobile was driven in a northerly direction on Pine Road. As it approached the intersection, defendant's train was proceeding west on its westbound track.

The automobile was driven onto the railroad track where it collided with the left side of the locomotive. Immediately prior to and at the time of the collision, the locomotive headlight was burning bright, the whistle was sounding and the bell was ringing. There was a sudden heavy squall of rain. The train was being operated at a speed of 55 to 60 miles per hour. On approaching the intersection, the occupants of the automobile had a view to the east of more than 2800 feet, except for the rain squall. The engineer on defendant's locomotive did not see the approaching automobile prior to the collision because of the heavy rain.

As a result of the collision, Leslie and his father were killed and his nephew was injured. Leslie was 27 years of age and was survived by his widow and four children.

During the course of the trial, plaintiff introduced in evidence photographs taken at the scene of the accident on the date of the collision. Defendant introduced in evidence two photographs taken at the scene the next day. All were admitted without objection.

At the trial, defendant introduced four additional photographs taken at the scene of the accident in December, 1963. They were admitted over plaintiff's objection. Plaintiff charges error because of the change in the physical appearance of the surroundings due to the disparity in time. However, the jury was advised concerning the changed conditions and could not have been misled thereby, particularly in light of the other photographs timely taken.

Such objections more properly go to the weight to be accorded such evidence rather than to its admissibility.

In an Indiana case, we stated the applicable rule to be that "[t]he admission or rejection of photographs in evidence is a question that lies within the discretion of the trial court, and its discretion will not be disturbed unless an abuse of such discretion is shown, Haven v. Snyder, 93 Ind. App. 54, 176 N.E. 149." Drohan v. Standard Oil Co., 7 Cir., 168 F.2d 761, 765 (1948), cert. denied, 335 U.S. 845, 69 S.Ct. 69, 93 L.Ed. 396. Accord, Vaughn v. National Tea Company, 7 Cir., 328 F.2d 128 (1964). Under the circumstances surrounding the admission of the challenged photographs, we find no abuse of discretion and it was not prejudicial error to receive them in evidence.

The trial court's instructions numbered 2 and 5 were given over plaintiff's objections. Instruction 2 properly stated the law with reference to contributory negligence on the part of plaintiff's decedent. The evidence is not clear concerning the identity of the driver of the automobile at the time of the accident. This fact and the evidence surrounding the collision itself raised questions for the jury to decide. The defense of contributory negligence was put in issue by defendant's answer. We find no error in submitting this issue to the jury.

Instruction 5 properly stated the applicable law with reference to there being no "comparative negligence" standard in Indiana. The jury was properly instructed concerning the law in the event it found both plaintiff's decedent and defendant guilty of negligence proximately contributing to plaintiff's decedent's death and resulting damages.

Over plaintiff's objection, the trial court gave defendant's instruction 32 defining the duty of a passenger in an automobile to exercise reasonable care for his own safety. Plaintiff further objected to the giving of defendant's instruction 28 defining the duty of the driver of an automobile approaching a railroad crossing to exercise due care (also referred to as reasonable care) by looking and listening for an approaching train. Reading each of these instructions as a whole leads us to the conclusion that they are correct statements of the applicable law and that it was not prejudicial error to give them.

Plaintiff further charges that the trial court erred in refusing to give her tendered instructions 13 and 38. Instruction 13 concerns the equal duty to use reasonable care on the part of the operators of the locomotive and the automobile and the duty of defendant to give timely warning of the approaching train. These matters were adequately covered by other instructions given by the trial court. Instruction 38 deals with defendant's duty "to maintain all safety devices" installed at the crossing. The instruction apparently was intended to refer to the "crossbuck" sign in place at the scene of the accident. The trial court properly instructed the jury concerning defendant's duty to erect such a sign. The maintenance statute plaintiff seeks to invoke, Ind.Ann.Stat. § 55-2015 (Burns' 1951), has to do with "extra-hazardous grade crossings" and additional warning signals required by order of the Public Service Commission of Indiana at grade crossings with a state highway. This has no application to the crossing under consideration in this case. New York Central Railroad Co. v. Public Service Commission of Indiana, 237 Ind. 544, 549, 147 N.E.2d 547 (1958).

We have considered the instructions given to the jury in their entirety. We conclude the jury was adequately and fairly instructed and there was no error in giving or refusing to give certain instructions complained of by plaintiff.

No charge is made concerning the sufficiency of the evidence to support the verdict. The jury heard the evidence and found for defendant.

Finding no prejudicial error in the trial below, the judgment appealed from is affirmed.

Affirmed.

ALFORD v. NEW YORK CENTRAL RAILROAD COMPANY