819 F.2d 1074 (11th Cir. 1987), 86-8298, Pate v. Seaboard R.R., Inc.

Docket Nº:86-8298.
Citation:819 F.2d 1074
Party Name:Lewis and Carolyn PATE, Velma Hinton, and John L. Killingsworth, Plaintiffs-Appellants, v. SEABOARD RAILROAD, INC., d/b/a Seaboard Systems, Defendant-Third Party Plaintiff-Appellee, Brian N. McTamney, Third Party Defendant-Appellant.
Case Date:June 23, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1074

819 F.2d 1074 (11th Cir. 1987)

Lewis and Carolyn PATE, Velma Hinton, and John L.

Killingsworth, Plaintiffs-Appellants,


SEABOARD RAILROAD, INC., d/b/a Seaboard Systems,

Defendant-Third Party Plaintiff-Appellee,

Brian N. McTamney, Third Party Defendant-Appellant.

No. 86-8298.

United States Court of Appeals, Eleventh Circuit

June 23, 1987

Page 1075

[Copyrighted Material Omitted]

Page 1076

John H. Ridley, Atlanta, Ga., for Pate.

Richard L. Mullins, Timothy N. Shepherd, Andrew J. Whalen, III, Griffin, Ga., for Hinton & Killingsworth.

Paul R. Bennett, Billy E. Moore, Columbus, Ga., Robert D. Stein, Hapeville, Ga., for McTamney.

Jack H. Senterfitt, Atlanta, Ga., for Seaboard R.R., Inc.

Appeals from the United States District Court for the Northern District of Georgia.

Before FAY and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

At about 11:00 on the night of April 13, 1983, in Haralson, Georgia, nineteen year old Brian McTamney was giving seventeen year old Bobby Pate and fifteen year old Nancy Killingsworth a ride home from an evening of fishing when McTamney's pickup truck was struck by a northbound Seaboard Railroad train. The train impacted the passenger side of McTamney's vehicle, pushing the truck approximately 2100 feet down the tracks before coming to a stop. Bobby Pate and Nancy Killingsworth were killed. Brian McTamney was seriously injured.

The parents of the deceased youths, Lewis and Carolyn Pate (Pate appellants) and Velma Hinton and John L. Killingsworth (Killingsworth appellants), brought wrongful death diversity actions in federal court against Seaboard System Railroad, Inc. (Seaboard). Seaboard filed third party complaints against appellant McTamney in each case, and McTamney counterclaimed against Seaboard. The cases were consolidated by agreement of the parties, and the consolidated action proceeded to jury trial with the Pate appellants, Killingsworth appellants, and McTamney all aligned as plaintiffs. 1

The jury returned a verdict in favor of Seaboard on all claims and counterclaims. 2 The primary issues at trial were: (1) whether railroad cars parked on a storage track had been parked too close to the grade crossing, thereby making it difficult for drivers attempting to cross the grade crossing to see northbound trains; (2) whether the operators of the Seaboard train on the night in question failed to keep an adequate lookout and to blow the train's whistle or sound its horn to warn drivers that the train was approaching; (3) whether Seaboard should have installed some type of lights or warning signals on the crossing, or required that trains slow down when passing through Haralson because of the dangerous nature of the crossing; and (4) whether McTamney exercised due care 3 in crossing the tracks.

Page 1077

Appellants moved for a new trial, alleging that the verdict was contrary to the evidence and the law and that the court erred in instructing the jury. The court denied the motions, because:

Although the Court might have reached a different verdict had it been the trier of fact, the Court finds no sufficient basis for granting a new trial. Even though there was ample evidence from which the jury could have found defendant negligent, the jury reasonably could have relied on Trooper Pollard's testimony and other credible evidence to find that the accident was caused solely by the negligence of third-party defendant. Moreover, after reviewing the jury instructions in light of the arguments now raised, the Court concludes that the charge as a whole fairly and adequately apprised the jury of the applicable law.

Appellant McTamney appealed from the denial of his motion for a new trial. 4 The Pate and Killingsworth appellants appealed from the judgment on the jury verdict and from the denial of their new trial motions.


We begin with appellants' argument that the court erred in denying their motions for a new trial on the basis of erroneous and prejudicial jury instructions. Motions for a new trial are committed to the discretion of the trial court, McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984); our review of the court's refusal to grant a new trial is limited to ascertaining whether there has been a clear abuse of discretion. Goldstein v. Manhatten Indus. Inc., 758 F.2d 1435, 1447-48 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985). In determining whether the district court abused its discretion we examine the challenged instructions as part of the entire charge, in light of the allegations of the complaint, the evidence presented, and the arguments of counsel, to determine whether the jury was misled and whether the jury understood the issues. 5 Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1413 (11th Cir.1986); Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir.1985).


The Pate and Killingsworth appellants allege that the district court erred in charging the jury that:

No passenger shall ride in a truck in such a position as to interfere with the driver's view to the sides nor shall any passenger ride in a truck in such a position to interfere with the driver's control over the driving mechanism of the truck.

See O.C.G.A. Sec. 40-6-242(b). The Pate and Killingsworth appellants objected to the

Page 1078

charge. We examine the allegations of the complaint, the arguments of counsel, and the evidence presented at trial to determine whether the charge was proper in this case.

McTamney testified that in attempting to cross the four rails at the Todd Road crossing, he stopped three times prior to the impact: once about a car length in front of the first rail on the storage track; once just after the front wheels of his truck crossed over the first rail of the storage track; and once just prior to crossing over the third rail (first rail of the main track). McTamney indicated that he did not shift out of first gear during this time and that he "leaned up and looked" both ways each time he stopped. According to McTamney, at the last stop immediately prior to the crash, "I saw my truck, and I saw Bobby [Pate] and Nancy [Killingsworth], but I looked over, and that's all I saw, just the window, and then it was just dark." McTamney denied having heard any horns or whistles or having seen an approaching train or any train lights.

Evidence at trial created an ambiguous suggestion that McTamney's passengers might have partially obstructed his view. McTamney's four-wheel drive pickup truck had bucket seats with a console between the seats and two gear shift levers on the floor. Brian McTamney testified that, on the night of the accident, Bobby Pate was seated in the passenger seat next to the door and Nancy Killingsworth was seated to Pate's left, half on the seat and half on the console. An accident reconstruction expert indicated that a passenger seated in the passenger seat would impair the driver's line of sight down the tracks due to the fact that a driver crossing the tracks from the west would have to look behind him somewhat when looking to his right for northbound trains because the tracks cross the road at an angle and curve away to the southwest. The driver would therefore have to lean forward or attempt to look out the rear window of the truck to see around both any passengers and the metal beam pillar between the passenger door window and the rear window of the truck's cab. This evidence created an arguable inference that the passengers in McTamney's vehicle, by both being seated in the passenger bucket seat with Nancy Killingsworth half on the seat and half on the console, negligently contributed to McTamney's failure to see the oncoming train.

Passenger contributory negligence was not, however, an issue in the case. No passenger contributory negligence defense was raised in appellee's answers, in the pretrial order, or in any of appellee's arguments to the jury. Appellee concedes in its arguments before this court that passenger contributory negligence was not at issue. The district court agreed that appellee had not raised a passenger contributory negligence issue, 6 but apparently viewed the challenged charge as allowing the jury to conclude that McTamney was negligent in allowing Nancy Killingsworth to sit partially on the console. 7

Page 1080

The challenged charge cannot fairly be read as bearing on possible driver negligence. First, the plain meaning of the language of the charge itself is that passengers have certain duties not to interfere with the operation of motor vehicles. The charge stated that no passenger is to ride in such a way as to interfere with the driver's view to the sides and that no passenger should ride in such a fashion as to interfere with the driver's control of the driving mechanism of the truck. Second, the statutory origin of the challenged charge supports our construction. A comparison of the statutory provision from which the charge was drawn, O.C.G.A. Sec. 40-6-242(b), to its companion statutory provision, O.C.G.A. Sec. 40-6-242(a), suggests that the charge is properly construed as imposing a duty on passengers. O.C.G.A. Sec. 40-6-242(a) provides that:

No person shall drive a vehicle when it is so loaded, or when there are in the front seat such a number of persons, exceeding three, as to obstruct the view of the driver to the front or sides of the vehicle or as to interfere with the driver's control over the driving mechanism of the vehicle.

(emphasis added). 8 If subsection (b) imposes a duty on drivers not to allow passengers to ride in such a position as to interfere with the driver's view to the front or to the sides and not to allow passengers...

To continue reading