Commercial Nat. Bank v. Missouri Pac. R. R.

• Decision Date: 10 September 1980
• Docket Number: No. 79-1989,79-1989
• Citation: 631 F.2d 563
• Parties: COMMERCIAL NATIONAL BANK as Administrator of the Estate of Claude V. Raines, III, deceased, Appellee, v. MISSOURI PACIFIC RAILROAD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 563

631 F.2d 563

COMMERCIAL NATIONAL BANK as Administrator of the Estate of Claude V. Raines, III, deceased, Appellee, v. MISSOURI PACIFIC RAILROAD, Appellant.

No. 79-1989.

United States Court of Appeals,

Eighth Circuit.

Submitted May 21, 1980.

Decided Sept. 10, 1980.

Donald H. Bacon, Friday, Eldredge & Clark, Little Rock, Ark. (argued), and William A. Eldredge, Jr., Little Rock, Ark., on brief, for appellant.

Sandy S. McMath, Little Rock, Ark. (argued), and McMath, Leatherman & Woods, Little Rock, Ark., on brief, for appellee.

Before GIBSON, Senior Circuit Judge, and HEANEY and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

Eight-year-old Claude Raines, III, was run over and killed by a railroad car on the tracks of the Missouri Pacific Railroad on March 1, 1974. Claude's father then commenced this diversity action against the Missouri Pacific on behalf of Claude's family and his estate. After trial, the jury returned a verdict in favor of the Railroad. The trial court ¹ subsequently set aside the initial judgment and granted a new trial. The second trial resulted in a jury verdict of $61,025.15 in favor of the plaintiff. The Railroad's motion for judgment notwithstanding the verdict was denied by the trial court. We affirm.

On the afternoon of March 1, 1974, Claude Raines was playing with friends in a neighbor's yard, a half block from his home in Wynne, Arkansas. Since Claude and his friend, John Taylor, were teasing the neighborhood girls with water pistols, they were told by John's parents to leave the girls Because no one witnessed the accident, the exact circumstances of Claude's death are unknown. It is known, however, that the tracks were being used that afternoon for assembling a train and that Claude was killed during this process.

alone and to go play in the backyard. Ten or fifteen minutes later, Claude was run over and killed by a railroad car on the switching tracks of the Missouri Pacific Railroad, a little over a block from his home.

On this appeal, the Missouri Pacific contends that it was an abuse of discretion to vacate the first verdict and that several errors were made in submitting the case to the second jury.

I GRANTING A NEW TRIAL

The grant or denial of a new trial is within the discretion of the trial court and should be upheld unless that discretion has been abused. Farmers Co-op. Elevator Ass'n Non-Stock v. Strand, 382 F.2d 224, 230-231 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). See also Dickerson Const. Co., Inc. v. Dozier, 584 S.W.2d 36, 42 (Ark.1979) ("(The trial court's) discretion will not be reversed in the absence of manifest abuse.").

Here, the trial court found that "substantial justice will best be served by a new trial" and cited, as reasons for its rulings, its failure to partially direct the verdict on the negligence issue, the diversion of the trial to irrelevant issues, the improper and highly prejudicial cross-examination of Claude's father, and an improper line of questioning used by defense counsel. The Missouri Pacific contends on this appeal that the trial court's grant of a new trial was an abuse of discretion because several of the reasons given by the trial court reflect errors of law.

Since the trial court's discretionary grant is adequately supported by some of its stated reasons, we need not decide whether each and every reason cited by the trial court supports the granting of a new trial. It is sufficient that we have examined all the reasons and the record as a whole and find no abuse. ²

One reason supporting the trial court's decision to grant a new trial was that the issue of contributory parental negligence was mishandled at the first trial. The facts are clear that Mrs. Raines was working away from home on March 1, 1974. Mr. Raines, who was looking for work, had been away from home during the day but returned in the afternoon because Claude was then out of school and at home. Claude returned from school and was soon playing with a neighbor, John Taylor, in the Taylor's yard. Claude often played at the Taylor home and there was an informal arrangement for Mrs. Taylor to take care of the Raines' children when Mr. and Mrs. Raines were not around. Mr. Raines left home later that afternoon for about half an hour to place another call about a job. It was while Mr. Raines was away making this call that the accident was discovered. There is no evidence that Mr. and Mrs. Raines specifically warned Claude not to play on the tracks or that they were aware that he had played there in the past.

We agree with the district court that these facts were insufficient to warrant putting the issue of the parents' negligence before the jury. This issue, like all others, need not go to the jury unless the record, when viewed in the light most favorable to the Railroad, contains some evidence from which a jury could conclude that the Raines were negligent. See Blythe v. Byrd, 251 Ark. 363, 472 S.W.2d 717, 720 At the first trial, however, the defense counsel injected the parental negligence issue into his closing argument and the trial court gave no curative instruction. The trial court's later decision that the jury should have been instructed that no issue of parental negligence existed was proper. At the second trial, the court gave such an instruction.

(1971); Paul Hardeman, Inc. v. J. I. Hass Co., 246 Ark. 559, 439 S.W.2d 281, 283 (1969). No negligence can be found in letting Claude go to the Taylor's yard, a half block away from home, to play with his friend. Mr. Raines knew that the adult Taylors were home and that Claude often played there. As Dean Prosser said, "(w)hile it is true that his parents or guardians are charged with the duty of looking out for (a child), it is obviously neither customary nor practicable for them to follow him around with a keeper, or chain him to the bedpost." W. Prosser, Law of Torts § 59 at 364 (4th ed. 1971). Here, even when the evidence is viewed in the light most favorable to the Railroad, there is nothing tending to establish that the duty of looking out for the child was breached by his parents.

Additional support for the decision to grant a new trial can be found in defense counsel's examination of the railroad conductor. Through his questioning, counsel for the Railroad attempted to suggest that Claude's father was trying to shift the blame for his son's death away from himself and on to the shoulders of the conductor. Counsel made this "attempt" appear unseemly by suggesting that the conductor had suffered enough already, having lost two sons of his own in tragic deaths. Since, by the thrust of his examination, counsel sought to elicit evidence that was of little or no relevance and was unfairly prejudicial, see Fed.R.Evid. 403, the district court could conclude, as it did, that the examination had made the first trial less than adequately fair. For this reason, as well as for the problem presented in the treatment of the parental negligence issue, we conclude that the district court's grant of a new trial was not an abuse of discretion.

II THE SECOND TRIAL

The Railroad's primary contention regarding the second trial is that the court erred in submitting the issues of negligent lookout and proximate cause to the jury, since there was insufficient evidence to sustain findings of either. A brief survey of the facts is necessary to understand this contention.

On the afternoon that Claude was killed, four railroad employees were assembling a train in the Wynne railroad yard. Of the four...