Kalodner, Staley and Adams, Circuit Judges.
In the instant case the jury awarded the plaintiff Large damages of $46,500 in his diversity personal injury-property damage action against the defendant railroad.
On this appeal from the judgment entered pursuant to the jury's verdict, the defendant contends that the trial court erred (1) in denying its motion for judgment N.O.V. and (2) in instructing the jury that it could find in favor of the plaintiff under the Ohio Last Clear Chance doctrine.
The relevant facts adduced by the trial record may be summarized as follows:
The plaintiff's tractor-trailer was struck by an engine of the defendant while it was crossing the latter's tracks on Route 30, Crestline, Ohio, at noon time October 16, 1964, a bright, clear day. The plaintiff was injured and his vehicle was damaged.
Route 30 North, a two-lane highway, crosses the railroad tracks at an angle of about 63 degrees, and there are three sets of tracks at the crossing.
The sum of the plaintiff's testimony was that he approached the railroad crossing at a speed of about 5 miles per hour; he looked up and down the tracks -- "both ways"; when he was 50 to 60 feet away from the tracks and "didn't see anything"; he proceeded to the tracks at a speed of about 1 mile per hour; when he reached them, he "didn't stop" but "took another look" "to the left and right" and "still seen [sic] nothing." He then "started to cross the tracks -- as I was crossing the second set of tracks the train was right there -- it seemed like it was on top of me -- I knew he was going to hit me and I slowed, floored the truck." At another point in his testimony the plaintiff testified again that when he first saw the train "it seemed like he was right on top of me -- I was on the first track -- by the time he hit me I would have been on the second track, I have no way of knowing." The plaintiff also testified that he was familiar with the crossing; he had traveled on it two or three times a week for "a couple of years"; when one reached the first tracks "you can probably see a thousand feet, I don't know." The plaintiff further testified that he did not stop at any time from when he first looked 50 to 60 feet before reaching the first track until he was struck by the engine, although he could have done so at any time.
Testimony was adduced by the plaintiff that the defendant's engine was exceeding the speed limit (which is negligence per se under Ohio law); warning flasher lights at the crossing were not functioning; and that the defendant's engineer and brakeman failed to take required action after discovering the plaintiff was in a perilous position.
The case was submitted to the jury on eight Special Interrogatories, six of which were addressed to the issues of negligence and contributory negligence of the parties.
The jury in answering these six interrogatories found that the plaintiff was negligent and that his negligence contributed to the occurrence of the accident, and that the defendant was negligent and its negligence contributed to the happening of the accident.
The jury also answered "yes" in answer to Special Interrogatory No. 7 which reads as follows:
"Could defendant have avoided the accident, notwithstanding plaintiff's ...