Linda D. Hutchins and David Hutchins, Her Husband v. Norfolk & Western Railway Company, a Corporation

890 F.2d 978
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 17, 1990
Docket89-1492
StatusPublished
Cited by4 cases

This text of 890 F.2d 978 (Linda D. Hutchins and David Hutchins, Her Husband v. Norfolk & Western Railway Company, a Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Linda D. Hutchins and David Hutchins, Her Husband v. Norfolk & Western Railway Company, a Corporation, 890 F.2d 978 (7th Cir. 1990).

Opinions

CUMMINGS, Circuit Judge.

In this diversity action, Linda Hutchins and her husband David Hutchins sued the Norfolk & Western Railway Company for $900,000 apiece. Count I was for the wife to recover for injuries stemming from her fall from the ladder of a steam locomotive engine owned by the defendant. Count II was for the husband’s loss of the wife’s society, consortium and services and for his expenditures for her support and medical treatment. The gravamen of the complaint was that defendant was negligent in activating the blow-off cock valve1 on the locomotive, thus emitting steam as Mrs. Hutch-ins was descending the clouded ladder of the locomotive. She claimed to be an invitee of the railway when the injury occurred.

The defendant admitted that its employees permitted Mrs. Hutchins to go aboard the steam locomotive and that she fell from the ladder while leaving. However, the railway denied that its employees were authorized to permit persons to climb aboard the locomotive. The accident occurred in Frankfort, Indiana, and the case is therefore controlled by Indiana law. At this stage the plaintiffs’ success depends on whether Mrs. Hutchins was an invitee at the time of the accident or whether she was a mere licensee.

According to the undisputed facts, early on June 29, 1986, the Hutchinses went to see an excursion train which was on display in their home town of Frankfort, Indiana, en route to Decatur, Illinois. The five-day trip originated in Roanoke, Virginia, and entailed numerous stops (R. 147-148). The railway owned and operated the old-fashioned steam engine which was attached to this train whose journey was sponsored by the Roanoke, Virginia, Chapter of the National Railway Historical Society. The railway was receiving compensation from that society pursuant to contract.

After reading about the exhibition of this train in a Frankfort newspaper, the Hutch-inses decided to view it. When they arrived at the exhibition site, the locomotive was being backed up in front of the plaintiffs. Mrs. Hutchins was interested in seeing the inside of the locomotive after it had stopped for display purposes and therefore she asked railway employees if she could board it. She was given permission to do so and used the ladder attached to the locomotive before being given a tour of the cab. In exiting via the ladder, Mrs. Hutch-ins misjudged the last step, fell backwards and hit her head on an adjoining railroad track. The complaint alleges that Mrs. Hutchins sustained serious injuries that aggravated preexisting latent physical infirmities, causing her to lose wages and disabling her from further employment. Accord[980]*980ing to the depositions of plaintiffs, the fall brought on multiple sclerosis and even curtailed Mrs. Hutchins’ ability to perform usual household chores.

Carl L. Smith, defendant’s Division Road Foreman of Engines, was present at the time of the accident. In his deposition he testified that when a locomotive of an excursion train is stationary, as a general rule spectators are allowed to board it, and he acknowledged that train crews will customarily allow spectators on board such an engine. Deposition of Carl L. Smith at 29-30.

Mr. Smith also testified in his deposition that he gave permission to Mrs. Hutchins to board the excursion steam engine and assisted her in doing so. Id. at 24-25. He added that for public relations reasons, members of the public are allowed to board a stationary excursion locomotive. Id. at 29. He stated that he also assisted Mrs. Hutchins down the ladder and that she stumbled when stepping to the ground. Id. at 8-9.

In an April 1988 report Dr. Harold Wake-ley stated that this ladder was not safe for general public use because it had uneven and irregular steps and shapes. He said that there was a high probability that members of the public would not learn in the first attempt how to mount and dismount such a ladder and that the danger caused by the ladder would not be apparent. Plaintiffs’ App. 46-50.

Finally, one of the exhibits of the railway shows members of the public boarding this locomotive shortly after plaintiff’s fall. Exh. E reproduced in plaintiffs’ App. 14.

After reviewing the facts, Judge Dillin handed down an entry opinion holding that the railway was entitled to summary judgment. In concluding that Mrs. Hutchins was a licensee rather than an invitee, the court stated that she had not been invited into the locomotive and that the railroad did not allow people to tour the locomotive for public relations purposes. Upon its view of the facts, the district court decided as a matter of law that Mrs. Hutchins “was acting as a licensee at the time of the accident,” citing Millspaugh v. Northern Indiana Public Service Co., 12 N.E.2d 396 (Ind.App.1938), and Hundt v. La-Crosse Grain Co., Inc., 425 N.E.2d 687 (Ind.App.1981). Because of the court’s conclusion that Mrs. Hutchins was a mere licensee, it followed that defendant’s negligence would not permit recovery. Therefore the railway was granted summary judgment. We reverse on the ground that proper application of Indiana law should have led the district court to find that Mrs. Hutchins was an invitee, and we remand because we conclude there is a genuine issue of material fact concerning whether the railway was negligent.

In Indiana the rule still is that an injured party in Mrs. Hutchins’ situation cannot recover for a defendant’s negligence if she is a licensee rather than an invitee.2 However, Indiana has broadened the definition of who is an invitee and has adopted the following definition from Section 332 of the Restatement (Second) of Torts:

(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly connected with business dealings with the possessor of the land.

City of Bloomington v. Kuruzovich, 517 N.E.2d 408, 412-413 (Ind.App.1987) (weekend softball player a public invitee at a city park); Fleischer v. Hebrew Orthodox Congregation, 504 N.E.2d 320, 322-324 (Ind.App.1987) (attendee at religious service a [981]*981public invitee of synagogue), transfer denied, 539 N.E.2d 1 (Ind.1989) (Pivarnik, J., dissenting). In the absence of a controlling Indiana Supreme Court precedent or good prospect that the Indiana Supreme Court would disagree with the decisions of the Indiana appellate courts, we follow the decisions of the Indiana appellate courts. First Comics, Inc. v. World Color Press, Inc., 884 F.2d 1033, 1038 (7th Cir.1989) and cases cited.

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890 F.2d 978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linda-d-hutchins-and-david-hutchins-her-husband-v-norfolk-western-ca7-1990.