Stephen E. Bebout, Stephen Bebout, and Jon P. Bebout v. Norfolk & Western Railway Company ( 1993 )

PER CURIAM.

As dusk settled on the sixth of April, 1986, Stephen E. Bebout, driving with his brother Jon, turned east onto Route 9 outside of Gibson City, Illinois. As they went over a railroad crossing several hundred yards down the road, a Norfolk & Western freight train heading north collided with Stephen’s car.

Stephen, testing recently installed shock absorbers, was travelling at approximately 20 miles per hour at the moment of impact. Although no obstructions cluttered the railroad tracks at this intersection, he did not see either the flashing lights of the crossing post or the headlights on the approaching train, nor did he hear a warning whistle from the train prior to its entering the crossing. The force of the forty-mile-an-hour freight train crumpled the back of the passenger side door, pitched the vehicle over the adjacent flasher post, and propelled Jon through the windshield of the car. Stephen suffered numerous contusions and abrasions as well as a broken wrist in the accident. Jon continues to suffer from post-traumatic amnesia as a result of a closed-head injury he sustained.

In a suit filed on April 5, 1988, the Bebouts’ alleged that Norfolk & Western was negligent in failing to provide adequate warning: the railroad crossing lights were not flashing, the freight train’s headlights were not illuminated, and the warning whistle did not blow. Additionally, the plaintiffs-appellants asserted that the train crew failed to brake the train when they knew or should have known that Stephen’s ear was going to enter the crossing. Norfolk & Western counterclaimed against Bebout for property damage to its equipment and for overtime pay to its employees delayed by the wreck.

A jury trial began on June 3, 1991. At the close of plaintiffs’ evidence, the defendant-appellee moved for a directed verdict. Prior to ruling on the motion, the district court required the defendant-appellee to make an offer of proof of three non-employee witnesses outside the presence of the jury. Reassured that the railroad company had not been negligent in any of the instances raised by the Bebouts, the district court granted Norfolk & Western’s motion.

I.

Under Illinois law, directed verdicts are appropriate “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peona & E.R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, 514 (1967); see Davis v. FMC Corp., 771 F.2d 224, 229 (7th Cir.1985). Because the case was brought under the diversity jurisdiction, the state law standard of review governs. Hayes v. Otis Elevator Co., 946 F.2d 1272, 1275 (7th Cir.1991). This court reviews the district court’s determination de novo.

Of the four issues raised by the plaintiff-appellants, only one merits more than a passing reference. The district court was correct in its assessment of the evidence with respect to the operation of the crossing lights, the train headlights, and the automatic brake because the evidence in these instances did overwhelmingly favor the defendant-appellees. The testimony with respect to the sounding of the tram’s warning whistle, however, gives us pause.¹

At trial, three railroad employees testified that the train indeed blew its whistle. Three other witnesses — Stephen Bebout, Dorothy Varboncoeur, and Jerry Tomes — testified that they did not hear the whistle prior to the collision. In evaluating the testimony offered by the second group, this court grapples with the “negative evidence rule,” employed by Illinois courts to limit the capacity of negative evidence to create a triable issue of fact. In the present case, negative evidence is sufficient only if the witnesses so offering (1) were close enough to hear a whistle, and (2) were paying enough attention that they would have heard the whistle had it been blown. Berg v. New York City R.R. Co., 391 Ill. 52, 62 N.E.2d 676, 680 (1945); Rakers v. Southern Ry. Co., 8 Ill.App.3d 877, 290 N.E.2d 421, 428 (1972).

Application of this rule in the Illinois appellate courts has not been entirely consistent. In Rakers three witnesses testified that they did not hear a whistle prior to the accident in question. One of those witnesses observed the accident from approximately 800 feet away while driving his car towards the crossing; the other two witnesses were in houses one-quarter mile and one-half mile from the crossing, respectively. Rakers, 290 N.E.2d at 423-24. The court, over a dissent, held that these individuals were not of the mindset to notice a train whistle had one been sounded, and hence overturned a jury verdict entered in favor of the plaintiff. Id. at 427-28. Knott v. Chicago & Eastern Illinois R.R. Co., 73 Ill.App.3d 707, 29 Ill.Dec. 760, 392 N.E.2d 317 (1979), decided about seven years later, presents a nearly identical situation. Three witnesses testified that they did not hear a train whistle prior to the collision. None were in their cars at the time, all were in buildings approximately 150-200 feet from the crossing. Railroad employees testified that the train had sounded its whistle. That court-over a dissent which echoed the rationale in Rakers — held that the negative evidence offered by the plaintiffs’ witnesses was sufficient to create a question of fact for the jury, and reversed the directed verdict entered by the trial court in favor of the railroad. Id. 29 Ill.Dec. at 762-64, 392 N.E.2d at 319-21.

A complete reconciliation of Rakers and Knott would test the limits of credulity. In fact, one could make a good argument that both cases were incorrectly decided, for the plaintiff in Rakers brought forward a witness who observed the accident from the road, while the plaintiff in Knott did not. See Knott, 29 Ill.Dec. at 764-65, 392 N.E.2d at 321-22 (Jones, J., dissenting); Rakers, 290 N.E.2d at 429 (Moran, P.J., dissenting). Because Knott arrived seven years after Rakers, perhaps it signals a conscious decision by the Illinois courts to weaken the negative evidence rule.

In any event, this tension should not affect the outcome in the case sub judice, for Stephen Bebout’s testimony was sufficient to withstand a directed verdict under either the Rakers or the Knott version of the rule. Because Bebout was close enough to hear the train’s whistle, Bebout’s not seeing the flashing lights as he approached the crossing may suggest that his “attitude of attention” was such that the whistle was not likely to get his attention. Such a conclusion, however, invades the province of the jury. Bebout’s failure to notice the flashing lights at the crossing, particularly when driving eastward at dusk, does not lead inexorably to the conclusion that he was paying insufficient attention to hear a whistle. Vision and hearing are separate senses, and the latter is often more precise than the former. First-base umpires call close plays not by watching the ball, but rather by listening for the thud it makes when hitting the first baseman’s glove. Although it is difficult to know for sure, one suspects that Illinois courts impose a duty on railroads to signal their approach with lights and whistles out of recognition that targeting two senses is better than targeting one. Bebout’s testimony that he downshifted prior to crossing railroad tracks and looked both way could create a reasonable inference that he had a sufficient “attitude of attention.” Bebout had every reason not to tell the truth, but only the jury can judge the credibility of witnesses and resolve evidentiary conflicts. Dowler v. New York, Chicago & St. Louis R.R. Co., 5 Ill.2d 125, 125 N.E.2d 41, 45 (1955).

Accordingly, this case is Affirmed in part, Reversed in part and Remanded for a trial on whether the train sounded its warning whistle when approaching the crossing.

1 . Although the district court did not enter a formal judgment, the absence of a Rule 58 judgment does not bar this court from asserting jurisdiction. First National Bank of Chicago v. Comptroller, 956 F.2d 1360, 1363 (7th Cir.1992). Moreover, the judgment of the district court was final despite the absence of a definitive ruling on Norfolk & Western’s counterclaim because it has waived this counterclaim by failing to pursue it at the trial level. Thus, this court has jurisdiction pursuant to 28 U.S.C. § 1291.