Stephen E. Bebout and Stephen Bebout, Individually and as Father and Next Friend of John P. Bebout, a Minor v. Norfolk & Western Railway Company

I agree with Judge Coffey’s comment in his dissent in the first appeal questioning the futility of this case. Bebout v. Norfolk & Western Ry. Co., 982 F.2d 1178, 1186 (7th Cir.1993) (Coffey, J., dissenting). But on remand the jury was told to determine only whether the whistle was blown, not whether it was timely blown. One witness said the time between the whistle and the collision was 5-10 seconds. (Testimony from those who heard no whistle has no bearing on the question of timeliness.) That disputed fact coupled with the question of what is adequate warning is enough to give the plaintiffs…