Mittlieder v. CHICAGO AND NORTHWESTERN RAILWAY CO., 20458.

Decision Date16 April 1971
Docket NumberNo. 20458.,20458.
Citation441 F.2d 52
PartiesIsmay MITTLIEDER, Special Administratrix of the Estate of Elmer R. Ochsner, Deceased, Appellant, v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY, a Corporation, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Martin A. Cannon, of Matthews, Kelley, Cannon & Carpenter, Omaha, Neb., for appellant.

Harry B. Otis, of Gaines, Spittler, Neely, Otis & Moore, Omaha, Neb., for appellee.

Before MATTHES, Chief Judge, and VAN OOSTERHOUT and GIBSON, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by Mittlieder, Administratrix, from judgment based on a jury verdict dismissing her wrongful death action arising out of the death of her intestate, Elmer R. Ochsner, in a railroad crossing collision with defendant's freight train. The trial giving rise to this appeal occurred following our reversal of a judgment of dismissal based on a jury verdict for the defendant in Mittlieder v. Chicago and Northwestern Railway Co., 8 Cir., 413 F.2d 77.

Our reversal was based on the ground that the trial court committed prejudicial error in submitting the defense of contributory negligence on the part of the passenger decedent in the absence of any evidence to support such defense. In our present case, the contributory negligence defense was not submitted.

The facts so far as material are fully stated in our prior opinion and will not be repeated here in detail. Plaintiff's decedent was killed as a result of a collision of the automobile in which he was riding as a passenger with defendant's train at a railroad crossing in the outskirts of Omaha, Nebraska. The driver and all occupants of the car were killed.

The usual specifications of negligence are asserted, including excessive speed, lack of control, lack of proper lookout, improper headlight illumination, improper warning, failure to seasonably apply the brakes, the backwards operation of the train and the dangerous condition of the crossing. Defendant denied negligence and asserted the accident was proximately caused solely by the negligence of decedent's driver. The evidence of defendant's negligence is weak. The evidence of negligence on the part of the car's driver is quite strong. The crossing is protected by a cross buck warning sign and by an electric wigwag signaler with two-way lights that flash and a bell which signaling device was operating at the time of the accident. Two juries have returned verdicts against the plaintiff.

Plaintiff urges that she is entitled to a reversal on the following grounds:

I. Errors in ruling on admissibility of evidence.

II. Error in admitting stipulation made at former trial.

III. Error in instructing jury to disregard evidence of train speed limit imposed by company rule.

IV. Error in overruling plaintiff's motion for new trial on ground of newly discovered evidence.

We hold the court committed no prejudicial error and affirm the dismissal judgment for the reasons hereinafter set out.

I.

Plaintiff administratrix asserts the court erred in permitting the train engineer to testify as to the purpose of a light known as the Mars light and defendant's rules relating thereto. Plaintiff opened the subject by calling the engineer as a witness and enlisting the following testimony:

"Q. The purpose of that big red light is to attract the attention or to warn people of the fact that your train is coming, isn\'t it?
A. You mean the general public?
Q. Yes.
A. No, sir.
Q. You don\'t think so?
A. No, it isn\'t."

Defendant on cross-examination developed that the Mars light had been disconnected for some time and that under company rules the purpose of the light was to warn and give protection against another train in a breakdown situation. Plaintiff's objection to such testimony on best evidence grounds was overruled. The court found no one had a rule book in court. Defendant's counsel assured that a rule book would be available. The court directed defendant to provide plaintiff's counsel with the rules and suggested going on with the trial and that if plaintiff wanted to use the rules in connection with further examination of the witness, plaintiff could do so. The appendix shows no follow up on this. Plaintiff's brief sets out the rules. The rules appear to be consistent with the engineer's interpretation. In any event, no prejudice resulted.

In Lawson v. Union Pac. R. Co., 113 Neb. 745, 204 N.W. 791, 793, the pertinent Nebraska law is thus stated: "So far as the public is concerned, the measure of care to be exercised in the operation of a railroad is determined by law, not by the rules of the company." See Gagnier v. Bendixen, 8 Cir., 439 F.2d 57 (March 17, 1971).

Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 173 N.W.2d 881, relied upon by plaintiff, is distinguishable and in our view in no way impairs the Lawson rule.

Defendant later used the engineer as its own witness. When plaintiff sought to cross-examine on the Mars light, objection was sustained on the ground that the testimony was outside the scope of the direct examination and that the question had been explored thoroughly when the engineer testified as plaintiff's witness. The extent of cross-examination is largely discretionary. Guyette v. Schmer, 150 Neb. 659, 35 N.W.2d 689, 692-693.

No abuse of discretion is here shown, particularly in light of our holding that under Nebraska law violation of the company's rules standing alone does not establish a basis for liability.

Plaintiff's further contention that expert testimony of Semerad, Christensen, McGann and Steenblock should be excluded for lack of proper foundation is without merit. See Mittlieder v. Chicago and Northwestern Railway Co., 8 Cir., 413 F.2d 77, 83, and footnote 5.

The trial court did not abuse its discretion in receiving the testimony complained of. It was the right and the duty of the jury to determine the weight of the evidence.

II.

At the prior trial, the parties stipulated in open court that the blood sample taken from the driver of the accident car contained .22 per cent or 22/10,000ths in alcohol by weight. Defendant offered this stipulation in evidence at the present trial. Plaintiff's counsel objected, stating:

"The defendant has offered the stipulation entered into in the previous trial. I want the record to show that at an earlier date some months ago plaintiff advised defendant that he did not wish to renew the stipulation in this trial, and likewise so indicated in answers to the defendant\'s demands for admissions. The plaintiff has advised the Court that since the last trial he has come to the conclusion that the entry into the stipulation
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4 cases
  • United States v. Mayersohn
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 22, 1971
    ...Canon 5 (1967). 16 United States v. Johnson, 327 U.S. 106, 112-113, 66 S.Ct. 464, 90 L.Ed. 562 (1946); Mittlieder v. Chicago & Northwestern Ry. Co., 441 F.2d 52, 56 (8th Cir. 1971); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d ......
  • Continental Cas. Co. v. Canadian Universal Ins. Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 5, 1979
    ...to repudiate the stipulation nor shown any cause, good or otherwise, why it should not be admitted. Compare Mittlieder v. Chicago & Northwestern Railway Co., 8 Cir. 1971, 441 F.2d 52. There is no greater merit to the argument that summary judgment was improper because there were genuine dis......
  • Bail Bonds by Marvin Nelson, Inc. v. C.I.R.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 8, 1987
    ...Marino, 617 F.2d 76, 82 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980); Mittlieder v. Chicago & Northwestern Railway Co., 441 F.2d 52, 55 (8th Cir.1971); but cf. Meehan v. Central Railroad Co. of New Jersey, 181 F.Supp. 594, 628 n. 19 (S.D.N.Y.1960) (on retria......
  • Pace v. Jordan
    • United States
    • Alabama Court of Civil Appeals
    • June 8, 1977
    ...Cir. 1967). Motions to set aside judgments on the basis of newly discovered evidence are not favored. Mittlieder v. Chicago & Northwestern Railway Co., 441 F.2d 52 (8th Cir. 1971). The rationale underlying the stringent granting of relief pursuant to Rule 60(b) is clear eventually there mus......

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