                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 06-1909, 06-1910
THOMAS E. MILLER and LYNN MILLER,
                                          Plaintiffs-Appellants,
                              v.

ILLINOIS CENTRAL RAILROAD COMPANY, et al.,
                                         Defendants-Appellees.
                        ____________
          Appeals from the United States District Court
                for the Southern District of Illinois.
         No. 03-657-GPM—G. Patrick Murphy, Chief Judge.
                        ____________
    ARGUED DECEMBER 6, 2006—DECIDED JANUARY 25, 2007
                        ____________


  Before POSNER, RIPPLE, and WOOD, Circuit Judges.
   POSNER, Circuit Judge. The Millers brought suit in an
Illinois state court against a variety of companies, seek-
ing damages for serious injuries sustained by Mr. Miller
when the truck he was driving was struck by an Amtrak
train at a crossing. Amtrak was one of the defendants and
exercised its right to remove the case to federal district
court, Aliotta v. National R.R. Passenger Corp., 315 F.3d 756,
758 n. 1 (7th Cir. 2003), but the parties have assumed that
Illinois law remains applicable to the plaintiffs’ claim
against Amtrak (as well as, of course, the other defen-
2                                       Nos. 06-1909, 06-1910

dants), and we think the assumption is correct. Id. at 759;
Hollus v. Amtrak Northeast Corridor, 937 F. Supp. 1110,
1114 (D.N.J. 1996). Although Amtrak’s right to remove is
based on its being deemed an instrument of the federal
government because more than 50 percent of its stock is
owned by the United States, see 28 U.S.C. § 1349; cf. Em-
pire Healthchoice Assurance, Inc. v. McVeigh, 126 S. Ct. 2121,
2131-32 and n. 3 (2006), nowhere is there any indication
that Congress wanted victims of Amtrak accidents to
have any rights other than those conferred on victims of
railroad accidents by state law. Cf. 49 U.S.C. § 28103(a)(1)
(restricting the award of punitive damages in suits against
Amtrak); id., §§ 24301(g), 28103(c); compare A.I. Trade
Finance, Inc. v. Petra International Banking Corp., 62 F.3d
1454, 1463-64 (D.C. Cir. 1995). And if the source of a
plaintiff’s claim is state law, then state law should deter-
mine the merits of the claim, whatever the source of fed-
eral jurisdiction. Henry J. Friendly, “In Praise of Erie—And
of the New Federal Common Law,” 39 N.Y.U. L. Rev. 383,
408-09 n. 122 (1964).
  Even if, contrary to what we’ve just said, the question of
Amtrak’s liability for railroad accidents should be
thought one “involving the rights of the United States
arising under nationwide federal programs” and governed
therefore by federal common law, United States v. Kimbell
Foods, Inc., 440 U.S. 715, 726 (1979), the sensible federal rule
as in Kimbell would be to make state law the rule of deci-
sion. Otherwise the federal courts would have to make up
a common law of railroad accidents, a laborious chore
that would create arbitrary differences between the lia-
bilities of Amtrak and those of other railroads with
which it shares tracks. This concern is underscored by the
fact that Amtrak is merely one of several defendants in this
Nos. 06-1909, 06-1910                                      3

case and that the others are in federal court only (so far as
appears) by virtue of the federal district court’s supple-
mental jurisdiction. See 28 U.S.C. § 1367(a). There is
nothing to distinguish Amtrak from the other defen-
dants—especially the other railroad defendant—except its
majority ownership by the federal government.
  The district court granted summary judgment for the
defendants on the ground that Miller’s conduct had been
the “sole proximate cause” of the accident. Because of the
procedural posture, we construe the facts as favorably to
the plaintiffs as the record permits.
  The Illinois Central Railroad had hired defendant S.T.S.
Acquisitions (STS) to build and repair some fuel-related
facilities at the railroad’s railyard in Centralia, a town in
southern Illinois. STS in turn hired another defendant,
Central States Environmental Services (CSES), to be the
general contractor for most of the construction work. CSES
in turn hired S&M Basements to be a subcontractor to do
the concrete work required for the project. Miller was
a partner in S&M.
  The most convenient way for Miller and the other
workers on the railyard project to reach the construction
site was by driving across three parallel railroad tracks
at a private grade crossing, that is, a crossing not in-
tended for the use of the general public. There were no
gates or signals at the crossing and no flagman posted
there.
  The tracks ran north and south and the construction
site was to the west of them. When a worker on his way
home from work drove from the site and entered the
crossing, the first track he encountered was a “rip track,”
which is a spur or siding in which railroad cars are re-
4                                    Nos. 06-1909, 06-1910

paired in place. The next (middle) track was used by a
switch engine for switching. The third and easternmost
track was a main line. An Amtrak train ran on the main
line past the crossing every day at about 5 p.m. at a fast
clip.
  It was around that time on a clear day in August that
Thomas Miller drove his truck onto the crossing; and
since it was late afternoon and he was driving east, the
sun was behind him. A line of boxcars on the siding
blocked his view to the right (south). He either stopped
or slowed after he crossed the siding, and then con-
tinued eastward, crossing the middle track safely. But as
he crossed the main line, a northbound Amtrak train
traveling at 78 miles per hour (one mile per hour below
the speed limit) struck the rear of his truck. Miller has
no recollection of the accident, a common result of a
serious accident. Although one witness testified that
she did not hear the train sound its whistle (and that
she would have heard if it had), as it was required to do
when approaching a crossing, several others were posi-
tive they heard it and the train’s engineer testified that
in addition to blowing the standard whistle pattern he
began blowing frantically when he saw that the truck was
on a collision course with the train. The “ditch light” on
the locomotive was on when the train reached the cross-
ing. It is connected to the whistle; and the connection had
been working that morning. It could have broken down
before the Amtrak train arrived at the crossing, but of that
there is no evidence. An independent expert’s report
states without contradiction that an examination of the
locomotive’s “black box” after the accident revealed
that the whistle had indeed been blown in the irregular
warning pattern to which the locomotive engineer testified:
Nos. 06-1909, 06-1910                                      5

“as the locomotive got closer to the crossing the event
recorder data show that the engineer altered his horn
pattern, consistent with his testimony and the testimony
of those who heard the train horn.”
  The witness who said the whistle hadn’t been blown
was testifying almost four years after the accident, and in
the face of all the other evidence we do not think a reason-
able jury could conclude that the whistle had not been
blown, merely because one witness did not recall hearing
the whistle years after a very dramatic event—she was
in her kitchen and testified that she heard the collision,
ran outside, heard Miller screaming for help, and watched
her neighbors “messing with—taking care of” Miller. It
would be easy for her to forget the one routine feature of
the episode—a train’s whistle blowing, albeit irregularly.
We conclude that summary judgment was rightly granted
in favor of Amtrak.
  But the reasoning that led the district judge to grant
summary judgment for the other defendants is unsatisfac-
tory. He began by noting that an Illinois statute provides
that “a railroad track across a highway is a warning of
danger,” and therefore a driver approaching such a
crossing “shall not proceed until he or she checks that the
tracks are clear of an approaching train.” 625 ILCS 5/11-
1201(a-5). The judge thought that since the engineer saw
Miller, Miller must have seen the train, and therefore he
violated the statute and was negligent as a matter of law.
This conclusion would follow, if the premise were cor-
rect, without need for statutory codification of so elemen-
tary a precept of prudence. But the premise is incorrect.
The engineer could not have seen Miller, though he saw
Miller’s truck. Miller was in the driver’s seat of the truck,
and therefore on the left-hand side of the truck’s cab. Since
6                                      Nos. 06-1909, 06-1910

he was driving east and the train was traveling north,
the engineer, whose perch in his locomotive was higher
than the cab of the truck, could have seen only the passen-
ger’s seat. More to the point, since Miller was sitting in
the seat farther from the train, he may not have seen the
train until too late. A train’s whistle is deafening, so even
though his windows were closed and his truck was noisy,
it is likely that he heard it. But he may have heard it
too late to be able to stop—indeed, considering that the
train struck the rear of his truck, he may have sped up to
try to avoid the collision.
  What is critical, as far as the issue of Miller’s negligence
is concerned, is the distance that he had to traverse be-
tween the line of boxcars that blocked his view to the
south and the easternmost end of the crossing, where he
would clear the main line and be safe. The lawyers’
imprecision on this score is exasperating, as nothing could
be simpler than measuring the length of the crossing,
including the part of the crossing to the east of the siding.
All we have is testimony that the distance between the
tracks was about ten feet. The standard U.S. railroad gauge
is 4 feet 8.5 inches, and if “about ten feet” refers to the
distance between the east rail of one track and the west
rail of another, the total distance from the west rail of the
siding (the first track) to the east rail of the main line (the
third track) was almost 35 feet. In addition, the crossing
would have to continue for several feet beyond the east
rail of the main track, because the railroad cars overhang
the rails on each side; and since the chassis of the truck
extended several feet in front of the truck’s cab, to have
a clear view of the tracks he would have to stop and
look before the truck reached the first track. Pokora v.
Wabash Ry., 292 U.S. 98, 100 (1934) (Cardozo, J.).
Nos. 06-1909, 06-1910                                         7

  Thus, as Miller crept from behind the line of boxcars
toward the switching and main lines, he had a tricky
calculation to make: if he tried to cross both lines in one
movement, he risked being struck while he was still on the
main line, but if, therefore, he stopped before crossing
the main line, most of his truck would be sitting mo-
tionless on the switching line. (Miller was driving a one-
ton utility bed Ford pickup truck, the smallest exterior
length of which is approximately 16 feet, and there were
only 10 feet between tracks.) The middle track was “live”
too. It is used only occasionally and by a switching
engine that moves slowly; still, no one wants to be
stopped on a railroad track that is in use, even occasional
use, since if one stalled one could be in serious trouble.
“Stop, look, and listen” is not a reliable formula for cross-
ing a series of live railroad lines. See id. at 104. The average
person who crosses a series of parallel tracks looks up
and down before entering the crossing; he does not stop at
each track; and probably he is prudent not to.
  All this said, it is highly probable that Miller was negli-
gent in failing to see or hear the train before he reached
the main line. As he proceeded across the siding, he
should have looked up and down the two tracks in front
of him and had he done so he would have seen the
train—the tracks were straight and, except for the
siding, the view along them was unobstructed, the day
clear, the sun behind him. In all likelihood he was going
too fast when he crossed the siding to be able to stop before
he reached the main line, which may have been as near
as 25 feet. He had been working on the site for seven or
eight days and probably knew (because his coworkers
testified that they knew) that a train usually came along
the main line between about 5 and 5:30 p.m., so he should
8                                     Nos. 06-1909, 06-1910

have been particularly alert when he entered the crossing
at that time.
  Even if this is what happened, and so even if Miller
was indeed negligent, it would not follow that he was the
“sole proximate cause” of the accident, whatever exactly
that means. The judge thought Miller must have been the
“sole proximate cause” because the defendants had no
“duty” of care toward him since it was not “foreseeable”
that someone would cross at too high a speed to avoid
being hit by the train. Duty, proximate cause, and
foreseeability are of course common terms in the vocabu-
lary of tort lawyers, but like much legal jargon they can
obscure rather than illuminate a particular case. Some-
times it is sensible in a tort case to ask simply whether a
reasonable jury could have found that the defendants or
any of them behaved carelessly, and, if so, whether the
plaintiff’s conduct provides a complete defense. That is the
approach we’ll take here.
  We do not think a reasonable jury could find that either
STS or CSES was careless, because they did not control
the crossing or its use. The crossing was one way of
getting to the construction site, which was about 100 feet
west of the tracks, but there was at least one other way,
though the railroad crossing was more convenient. If
you have a highway accident while driving to a grocery
store, the store is not liable. It is not that it has no duty
of care to its customers; a customer who slipped and fell
in the store because of the negligence of an employee
would have a claim against the store. But the store
would not be responsible for accidents to customers that
occurred elsewhere, because those accidents would not
be caused by negligence by the store.
Nos. 06-1909, 06-1910                                        9

  We would have a different case if CSES or STS had
controlled the crossing, Kotecki v. Walsh Construction
Co., 776 N.E.2d 774, 777 (Ill. App. 2002), but there is no
evidence of that unless it is Miller’s statement in his
deposition that the crossing “was where you entered” and
left the construction site, and that is far short of signify-
ing control. Nor is it even remotely likely that the Illinois
Central would have ceded control of a crossing to a
company that was not in the railroad industry—that
would be a dangerous thing to do.
   We would also have a different case had CSES or STS
directed S&M Basements to use the crossing to get to the
work site. “One who entrusts work to an independent
contractor, but who retains the control of any part of the
work, is subject to liability for physical harm to others
for whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to exercise
his control with reasonable care.” Restatement (Second) of
Torts § 414 (1965). (The Illinois courts treat this provision
of the Restatement as a correct statement of Illinois com-
mon law. Kotecki v. Walsh Construction Co., supra, 776 N.E.
2d at 777; Bokodi v. Foster Wheeler Robbins, Inc., 728 N.E.2d
726, 731-32 (Ill App. 2000); McConnell v. Freeman United Coal
Co., 555 N.E.2d 993, 995 (Ill. App. 1990).) But there is no
evidence that either company had retained such a “right
of supervision that the contractor [S&M] [was] not entirely
free to do the work in his own way.” Restatement (Second)
of Torts, supra, § 414, comment c; see Bokodi v. Foster Wheeler
Robbins Inc., supra, 728 N.E.2d at 732-33. CSES could
assume that S&M would exercise due care in transporting
S&M’s workers to and from the work site.
  A reasonable jury could, however, find that the Illinois
Central was negligent. Although Miller was injured at a
“private” crossing, the workers who were working on the
10                                    Nos. 06-1909, 06-1910

fuel oil system for the railroad on the railroad’s property
were using the crossing at the railroad’s invitation, as it
was the most convenient way of getting to the site. LaFever
v. Kemlite Co., 706 N.E.2d 441, 448 (Ill. 1998); Restatement
(Second) of Torts § 332, comment e. Knowing that the
crossing was being used by a number of persons who
were not railroad workers alert to the dangers of a rail-
yard, the railroad welcomed their use of it. The crossing
road crossed several tracks—one a main line on which
trains ran at high speed—and yet lacked any safety precau-
tions. The two parallel live tracks made a safe passage
tricky as we explained, and by parking a line of boxcars
next to the westernmost crossing the railroad had made
it even trickier. So it was a dangerous crossing—or so a
jury could reasonably find—and a jury might also find
that the railroad could at a cost lower than the expected
accident cost have stationed a flagman at the crossing
when a passenger train was expected (for the engineer
was required to call a few minutes ahead to notify the
railyard that he was coming through), for that was only
once or twice a day. True, Amtrak trains are often delayed,
so the flagman might have had to wait around much of
the day waiting for the call, though a delay in the after-
noon train would be no problem if it lasted beyond the
time when all the workers would have gone home. It is
also true that there were freight trains running on the
main line throughout the day, but freight trains are less
dangerous because they’re slower. Anyway, these are
matters to be sorted out at a trial, along with considera-
tion of alternatives—maybe the railroad could at modest
cost have moved the boxcars to some other point on the
siding, unblocking the view to someone crossing from the
westernmost track.
Nos. 06-1909, 06-1910                                      11

  If the cost to the railroad of a precaution that would
have averted the accident would have been less than the
cost of an accident if it occurred discounted (multiplied)
by the probability (enhanced by the number of workers
using the crossing) that it would occur, the railroad was
negligent. See Brotherhood Shipping Co. v. St. Paul Fire &
Marine Ins. Co., 985 F.2d 323, 327 (7th Cir. 1993); Davis v.
Consolidated Rail Corp., 788 F.2d 1260, 1263-64 (7th Cir.
1986) (Illinois law); Ward v. K Mart Corp., 554 N.E.2d 223,
226-27 (Ill. 1990); Pageloff v. Gaumer, 849 N.E.2d 1086, 1088-
89 (Ill. App. 2006). That is for a jury to determine. Mention
of juries prompts us to interrupt our discussion to note
that because Amtrak is being dismissed from the case,
the question whether there is a right to a jury trial in a
damages suit against Amtrak is academic. That there is
such a right has been assumed, see, e.g., Aliotta v. National
R.R. Passenger Corp., supra; National R.R. Passenger Corp. v.
Rountree Transport & Rigging, Inc., 422 F.3d 1275 (11th Cir.
2005); National Passenger R.R. Corp. v. Maylie, 910 F.2d
1181 (3d Cir. 1990), but we cannot find a case on point. The
Supreme Court held in Lebron v. National R.R. Passenger
Corp., 513 U.S. 374 (1995), that Amtrak is to be deemed
a part of the U.S. government for purposes of the First
Amendment. But the Court added that the fact that Am-
trak’s organic statute says that Amtrak “is not a depart-
ment, agency, or instrumentality of the United States
Government,” 49 U.S.C. § 24301(a)(3), is a disclaimer of
sovereign immunity, Lebron v. National R.R. Passenger
Corp., supra, 513 U.S. at 392, and such a disclaimer
might seem to expose Amtrak to all the normal hazards
of litigation. Cf. Marcella v. Brandywine Hospital, 47 F.3d
618, 619-24 (3d Cir. 1995). But this we needn’t decide in
the present case.
12                                     Nos. 06-1909, 06-1910

  A jury that found that the Illinois Central was negligent
would doubtless find that Miller was negligent too. But
a victim’s negligence is no longer a complete defense to
a negligence suit, provided that the victim is not more
careless than the injurer. 735 ILCS 5/2-1116(c); Mrowca v.
Chicago Transit Authority, 740 N.E.2d 372, 374 (Ill. App.
2000). If Miller was suicidal or thought he was playing
chicken with the train’s engineer, he assumed the risk of
what happened and would be barred from all relief.
Bonavia v. Rockford Flotilla 6-1, Inc., 808 N.E.2d 1131, 1137-
38 (Ill. App. 2004). But neither possibility is suggested.
   We conclude that the district judge was right to grant
summary judgment for all the defendants except the
Illinois Central. The judgment is therefore affirmed in part
and reversed in part, and the case remanded for further
proceedings consistent with this opinion.
                                      AFFIRMED IN PART,
                       REVERSED IN PART, AND REMANDED.




  RIPPLE, Circuit Judge, dissenting. I would affirm the
judgment of the district court in all respects for the rea-
sons given by the district court.

A true Copy:
       Teste:

                          _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit
                    USCA-02-C-0072—1-25-07
