This section contains the nature of the case and procedural background.

P was employed as a brakeman/conductor for D. On August 15, 1997, P was working as a conductor. On August 15, 1997, at approximately 2:15 a.m., the crew became aware of a vehicle sitting on the tracks. Despite the sounding of the locomotive whistle, the car did not move off the tracks and was struck by the train. Efforts to stop the train began as soon as the car was spotted. The train did not come to complete halt until about ten railroad car lengths beyond the crossing. P and Norfolk (D) allege that Drewery (D) was intoxicated at the time his car was parked on the railroad tracks and that it had been there for some time. Drewery (D) denies these allegations. P exited the train and began walking back towards the crossing to inspect the train for damage or derailed cars, and to provide whatever assistance possible to the motorist. P couldn't walk on the area directly adjacent to the track because the grade was too steep and the large stones used in the ballast rolled under his feet. Only with a lantern to light his way P accidentally stepped into a hole the size of a basketball resulting in his injuries. P filed a complaint against Norfolk (D) based on the Federal Employer's Liability Act. P filed a separate claim against Drewery (D) under Indiana Common Law alleging negligence. Ds filed motions for summary judgment.

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