Garrison v. United States, 62 F.2d 41, 42 (4th Cir.1932). See also this court's opinion in Johnson v. Baltimore & Ohio Railroad, 65 F.R.D. 661, at 664 (N.D.Ind.1974), aff'd, 528 F.2d 1313 (7th Cir.1976). Although this question is to be determined by reference to federal procedural law, it is revealing to examine comparable concepts under the law of Indiana.
If a crossing is extra-hazardous, however, a railroad's duty to warn does not end with the installation of passive warnings that alert the public to the existence of a crossing. See Johnson v. Baltimore Ohio R.R. Co., 65 F.R.D. 661, 670-72 (N.D. Ind. 1974), aff'd, 528 F.2d 1313 (7th Cir. 1976). Rather, the conditions may require the installation of active warnings which alert the public to the existence of an oncoming train.
The question whether a deposition was necessarily obtained for use in a case has been the subject of considerable controversy. Despite some authority to the contrary, Johnson v. Baltimore O. Railroad, 65 F.R.D. 661, 674 (N.D.Ind. 1974), aff'd, 528 F.2d 1313 (7th Cir. 1976) (costs issue not raised on appeal), the generally accepted view, and the one adopted by this circuit, is that introduction of a deposition at trial is not a prerequisite for finding that it was necessary to take the deposition. State of Illinois v. Sangamo Construction Co., 657 F.2d 855, 867 (7th Cir. 1981); SCA Services, Inc. v. Lucky Stores, 599 F.2d at 180; Wahl v. Carrier Manufacturing Co., 511 F.2d at 217; Mashak v. Hacker, 303 F.2d 526, 527 (7th Cir. 1962) (per curiam) (affirming award of costs "incident to the taking of a deposition even though subsequent to the taking the case [was] dismissed for lack of jurisdiction").
For example, if federal juries are more impartial on average than state juries because drawn from a larger area, or if federal trial judges are more active in guiding the jury than their state counterparts are, there is an argument independent of the Seventh Amendment for placing tighter limits on the power of federal judges to set aside verdicts as excessive. But we need not try to resolve these interesting questions; here, as in most cases, see, e.g., Longenecker v. General Motors Corp., 594 F.2d 1283, 1285 (9th Cir. 1979), the state and federal standards for setting aside a verdict as excessive happen to be "virtually identical," as noted by a federal district judge who is a former Indiana appellate judge, Johnson v. Baltimore Ohio R.R., 65 F.R.D. 661, 666 (N.D. Ind. 1974). Both Indiana and the Seventh Circuit allow the trial judge to set aside the jury's verdict only if it is grossly excessive, and in both systems appellate review of his refusal to do so is extremely limited because of his superior ability, by virtue of having observed the jury at first hand, to assess its fairness and competence.
. . ." Freeman v. Franzen, 695 F.2d 485, 488 (7th Cir. 1982) (citation omitted), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983); Johnson v. Baltimore O.R. Co., 65 F.R.D. 661, 663 (N.D.Ind. 1974), aff'd, 528 F.2d 1313 (1976); see also Lippo v. Mobil Oil Corp., 776 F.2d 706, 716 (7th Cir. 1985) (witness credibility is for the jury's determination). The jury's verdict cannot be set aside "so long as it has a reasonable basis in the record."
In reviewing the evidence and ruling upon a Motion On The Evidence under Federal Rule of Civil Procedure 50, it is the law in the Seventh Circuit that the Court looks to the State law to determine the standard governing decisions on such motions. Kuziw v. Lake Engineering Co., 586 F.2d 33 (7th Cir. 1978); Kudelka v. American Hoist Derrick Co., 541 F.2d 651 (7th Cir. 1976); Lorance v. Marion Power Shovel Co., Inc. 520 F.2d 737 (7th Cir. 1975); Johnson v. Baltimore O.R. Co., (N.D.Ind. 1974), 65 F.R.D. 661, aff'd, 528 F.2d 1313 (7th Cir. 1976). The law in Indiana is that motions on the evidence may be granted only where there is a complete failure of proof, considering only the evidence and reasonable inferences therefrom favorable to the non-moving party.