opinion: Millard SCOTT, Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
  No. 72-1559.
  United States Court of Appeals, Sixth Circuit.
  Jan. 30, 1973.
  Jac Chambliss, of Chambliss, Bahner & Crawford, Chattanooga, Tenn., for plaintiff-appellant.
  Charles W. Lusk, of Hall, Haynes, Lusk & Foster, Chattanooga, Tenn., for defendant-appellee.
  Before PECK, Circuit Judge, and CECIL and O’SULLIVAN, Senior Circuit Judges.
  PER CURIAM.
  This is an appeal by Millard Scott, plaintiff-appellant, and his four children as co-plaintiffs, from a judgment on a jury verdict in the United States District Court for the Eastern District of Tennessee, Southern Division, denying recovery against Southern Railway Company in an action for the wrongful death of Sarah Jo Scott, wife and mother respectively of the plaintiff-appellant and his co-plaintiffs. The deceased was driving her automobile in a westwardly direction on Snead Road and the defendant-appellant was operating its train in a northerly direction on its track. As Mrs. Scott was attempting to cross the Southern Railway’s track at the intersection of Snead Road her automobile, from which she had just extricated herself, was struck by a train of the appellee and she was caught between the engine and the automobile and crushed to death.
  Each party charged the other with negligence both common law and statutory which caused the accident or proximately contributed to its cause. The trial judge submitted special issues to the jury upon one of which it found that the Railway Company was not guilty of any negligence which proximately caused the accident. Upon another the jury found that Mrs. Scott was guilty of negligence which proximately caused or proximately contributed to cause her own injuries and death. The jury also returned a general verdict finding on the issues of liability that the plaintiff Millard Scott was not entitled to recover from the Southern Railway Co.
  The accident happened in the State of Georgia and jurisdiction was based on diversity of citizenship. The law of Georgia was applicable to the facts of the case and was so applied by the trial judge throughout the trial and in his instructions to the jury. No error is charged against the trial judge either in his conduct of the trial or in his instructions to the jury. The essential difference in the law of Georgia and Tennessee is that Georgia follows the doctrine of comparative negligence.
  Counsel for the appellant claims that the jury committed reversible error in finding that the defendant Southern Railway was not guilty of any negligence which proximately caused the accident and resulting injuries and death of the plaintiffs’ decedent.
  One undisputed fact upon which it is claimed that the jury should have found negligence is that the engineer of the train failed to meet certain statutory qualifications of the state of Georgia for a locomotive engineer. (Sec. 94-902) The trial judge instructed the jury with reference to this statute and upon request for additional instructions upon the subject he reread the statute and said,
  “that even if you should find any party to have been negligent it is incumbent before that negligence becomes of any legal significance that you also find that that negligence was a proximate cause of any accident or resulting injuries.”
  This was a proper statement of the law and whether any failure to comply with the statute was a proximate cause of the accident was thus a question of fact for the jury. There was substantial evidence upon which the jury could find that any failure to meet the statutory requirements was not a proximate cause of the accident. We do not find any causative negligence as a matter of law in this respect.
  Another undisputed fact upon which it is claimed that the jury should have found negligence is that the train crew saw the decedent's automobile stopped on the track when the train was 2000 feet away from the crossing and failed to slow down or stop the train. It was not a question of whether the train could have been stopped, but whether under all of the circumstances, in the exercise of ordinary care, it should have been stopped. This was a question of fact for the jury. Counsel for the appellant cross examined all of the crew members at great length but apparently was not able to convince the jury that the crew was negligent. There was sufficient evidence to support the jury’s finding on this issue.
  Counsel also claims that this failure to stop the train or slow it down was a violation of Georgia statute Sec. 94-506. The trial judge instructed the jury with reference to the duties of this statute. This is a statutory enactment of the common law duty of ordinary care and does not impose an absolute duty on the operators of a train to stop at a grade crossing.
  Finally, it is claimed that the train crew violated the last clear chance rule. This too was a question of fact for the jury to decide under proper instructions from the trial judge.
  The issues here are factual and there being evidence to support the jury’s findings we can not substitute our judgment for that of the jury. In order to sustain the appellant’s appeal we would have to find that the members of the train crew did some act of omission or commission which constituted negligence as a matter of law. This we can not do. Judgment affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.