Albert E. PRATT, Plaintiff-Appellant, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee; Linnie R. TAYLOR, Plaintiff-Appellant, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee; John H. ALTMEYER, Plaintiff-Appellant, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee, 339 F.2d 964

KNOCH, Circuit Judge. The plaintiffs, Albert E. Pratt, Linnie R. Taylor and John H. Altmeyer, are all pax*ents of minor children, four of whom were passengers in an automobile, operated by the fifth minox-, on Stop 8 Road, a public highway, in Marion County, Franklin Township, Indiana, which intersects the tracks of the defendant, the New York Centx-al Railroad Company. This automobile collided with defendant’s train and all five of the minors were killed. This action was bx'ought to recover damages for the alleged negligence of the defendant in the operation of its tx-ain.

It is plaintiffs’ theory that under all the circumstaixces of this case, the defendant was operating its train at an excessive rate of speed.

The circumstances to which plaintiffs refer include the following: the markedly increasing population of Franklin Township ; the proximity of a high school with an enrollment of about 500 students, many of whom crossed this intersection twice daily, who were released from classes at about 2:40 p. m. daily, at which time, this train, a daily, usually had already passed this intersection, but which on the day of the accident was a few minutes late; the 45° angle intersection of the much traveled road and the track, and a weed covered mound which might have obscured the view of the oncoming train.

The District Court sustained a motion for directed verdict in favor of defendant at the close of the plaintiffs’ evidence, and this appeal followed. The evidence is clear that the automobile in which the decedents were all traveling had approached the tracks and come to a stop. It then proceeded across the tracks in the path of the approaching train.

Defendant’s engineer, Verna Zan-der, the sole survivor of the accident, testified that the train was about 900 feet from the crossing when he first saw the decedents’ automobile stopped near the tracks, and about 500 feet from the crossing when the automobile began to move onto the tracks. There was uncontroverted evidence that the train and crew gave all statutory warnings and complied with all statutory requirements. * Florabel Willsey, an eyewitness to the accident, in an automobile directly behind the decedents’ automobile, heard the train whistle, knew a train was approaching, and stopped for it.

She testified that the decedents’ automobile was stopped ahead of her. Plaintiffs contend that the issue of contributory negligence was one for the jury, that the contributory negligence of the driver, if any, could not be imputed to the other four passengers, and that the case should have gone to the jury.

As the Trial Judge noted in announcing his decision, there was a slight conflict in evidence as to the speed of the train, the engineer stating that his speedometer showed 79 miles per hour, and the Railroad having stated in answer to an interrogatory that the speed was 80 to 81 miles per hour, with its own self-imposed speed limit at 79 miles per hour. The Trial Judge did not think this difference was significant. Nor did he consider that the time of applying the brakes was relevant in the light of the circumstances as disclosed by the evidence. We agree.

We must conclude as did the District Judge that the sole proximate cause of the accident was the stopping of the decedents’ automobile at the crossing, as required by Indiana statute [Burns’ Ind.Stat.1952 Replacement, § 47-2114, Acts 1939, Ch. 48 § 100, p. 289], and then proceeding across the tracks. Considering the evidence presented and all reasonable inferences which might be drawn from it in the light most favorable to plaintiffs, we find no evidence from which the jury could have found the defendant guilty of negligence as to any of the decedents.

The facts were such that reasonable men could draw only one inference, and the question of proximate cause became a question of law for the Court. The District Court properly directed a verdict for the defendant. Martin v. United Moving & Storage Co., 7 Cir., 1959, 262 F.2d 596, 598 and cases there cited. The judgment of the District Court must be affirmed. Affirmed.