Louisville & Nashville Railroad Company v. Williams, 22771.

• Citation: 370 F.2d 839
• Decision Date: 28 December 1966
• Docket Number: No. 22771.,22771.
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Howard WILLIAMS, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

370 F.2d 839 (1966)

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Howard WILLIAMS, Appellee.

No. 22771.

United States Court of Appeals Fifth Circuit.

December 28, 1966.

W. B. Hand, Mobile, Ala., for appellant, Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., of counsel.

Benjamin H. Kilborn, Kilborn, Darby & Kilborn, Mobile, Ala., for appellee.

Before RIVES, GEWIN and GODBOLD, Circuit Judges.

RIVES, Circuit Judge:

This appeal is from a judgment in favor of the plaintiff, Howard Williams, in a suit arising out of a collision between the plaintiff's automobile and a freight train at a railroad crossing. The collision occurred on April 16, 1962, at about 4 A.M., in rural Marengo County, Alabama, near the City of Thomaston. The freight train traveling in an easterly direction collided with the plaintiff's car which he was driving in a southerly direction along Alabama Highway No. 25. As a result of the collision, the plaintiff's wife and his three-year-old daughter were killed, the automobile was damaged, and the plaintiff was slightly injured.

Two suits were filed and consolidated for trial. In the case on appeal the plaintiff sought to recover damages for the death of his daughter, for damages to his automobile, and for his own personal injuries. This suit resulted in a general verdict for the plaintiff and judgment for damages in the amount of $11,165.00. The companion suit was by the plaintiff as administrator of the estate of his deceased wife for recovery for her death. It resulted in a verdict for the plaintiff and judgment for $10,000.00, from which no appeal was taken.

The collision occurred on a cold, clear night. The windows of the automobile were closed, except for the driver's which was open for only two or three inches. Immediately prior to the accident, the train came around a sharp curve approximately 500 feet west of the crossing. The engineer blew the whistle and rang the bell continuously for at least one quarter mile before reaching the crossing, as required by statute.¹ However, these warning signals were not heard by the plaintiff driver. The plaintiff's car was traveling at a speed of approximately 30 miles an hour and had reached a point approximately 60 to 70 feet north of the railroad track before the plaintiff simultaneously heard and saw the approaching train, applied his brakes and skidded to a stop but not until about four feet of the car had crossed over the track where it was struck by the train.

The plaintiff was unfamiliar with the railroad crossing. He had been north over the crossing one time about a year before the collision, but had never before traveled south on the highway. The railroad had erected a cross buck sign at the crossing in compliance with the Alabama statute.² In addition, the State Highway Department had erected a stop sign and a warning sign 223 feet north of the crossing as authorized by another Alabama statute.³ The evidence was in conflict as to how clearly visible were these signs. The railroad tracks were imbedded in the highway and were not readily visible. There were no painted markings on the highway warning of the railroad crossing. The plaintiff testified that he did not observe any signs of the railroad crossing prior to the accident.

At the northwest corner of the intersection of the highway and the railroad track was a bank described as varying in height from 10 to 12 feet. This bank was covered with underbrush and trees. According to a survey made by the State Highway Department a few days after the accident, a driver traveling from north to south could not see westwardly up the track until at a point 100 feet north of the intersection.

Before qualifying the jury, counsel for the defendant railroad made known to the court that State Farm Mutual Liability Insurance Co. was subrogated to the interest of the plaintiff, Howard Williams, in the recovery of damages to his automobile, and requested the court to qualify the jury as to whether any were agents, employees or policy-holders of that company, which request the court refused. There was no showing that counsel had any information that any member of the jury was so disqualified.⁴ The court had made general inquiry of the jurors: "Do you know any facts concerning this accident? Do you know any reason why you cannot give both the plaintiff and the defendant in each case a fair and impartial trial?" And to those inquiries the jurors had replied in the negative. The voir dire examination of jurors rests largely in the discretion of the trial court, subject to essential demands of fairness. Spells v. United States, 5 Cir., 1959, 263 F.2d 609, 612; Kiernan v. Van Schaik, 3 Cir., 1965, 347 F.2d 775; Goosman v. A. Duie Pyle, Inc., 4 Cir., 1963, 320 F.2d 45.

In Martin v. Burgess, 5 Cir., 1936, 82 F.2d 321, 324, Judge Sibley for this Circuit suggested the following as the proper procedure with respect to jury qualification where an insurance company will be affected by the case:

"Touching the defendant\'s insurance and the qualification of the jurors, the court should privately ascertain whether an insurance company is to be affected by the result of the trial, and if so, without needlessly publishing the fact of insurance, should on plaintiff\'s here defendant\'s request exclude jurors interested in behalf of the insurer."

Allowing voir dire examination to determine possible interest of jurors in the insurance company affected is a matter of balancing the interest of one party in having disinterested and unprejudiced jurors against possible prejudice to another party or parties (sometimes aligned on the other side from the party seeking the examination and sometimes aligned on the same side) by revealing the financial interest of the insurance company in the suit. Where the interest of the insurance company is as a sole (or substantial) indemnitor or claimant, the application of the rule expressed by Judge Sibley has presented no great difficulty. The problem is less simple when the interest of the insurance company is minor, in which case the relative possible prejudice to other parties may outweigh allowing the examination. Here the financial interest of the insurer by reason of its subrogation rights was relatively minor in comparison with the other claims of plaintiff for the two deaths and for personal injuries. Under these circumstances, we cannot hold that the ruling of the trial court was an abuse of discretion prejudicial to the defendant.⁵

From the outset the case has turned on two issues: simple negligence on the part of the railroad and contributory negligence on the part of the plaintiff driver. The plaintiff's theory of the case has been and is that the crossing was so unusually dangerous as to require the railroad to provide special warnings in addition to those required by statute.⁶ While the case is a close one, we are of the opinion that, under the facts and circumstances which have been stated, it was for the jury to decide whether the crossing was so unusually hazardous that reasonable prudence would require the railroad to provide special warnings.⁷

Ordinarily, in Alabama it is contributory negligence as a matter of law for a motorist to fail to stop, look and listen before crossing a railroad.⁸

However, under all of the facts and circumstances of this case, if the jury found that the crossing was an unusually dangerous one, it was for the jury to decide also whether the plaintiff driver was guilty of contributory negligence.⁹

Without objection the plaintiff was permitted to prove that since the accident the highway had been marked with warnings of the railroad crossing and the bank on the northwest corner had been shaved down. Later the plaintiff offered an engineer for the State Highway Department who testified over the defendant's objection that after the accident he had caused the bank on the northwest corner to be shaved back and cleared, and approach warnings to be painted on the highway, and still later had caused automatic signal crossing lights to be installed. The district court stated its reason for admitting the evidence of those subsequent changes as not to show any admission against interest on the part of the railroad but to show whether, in fact, this was such a dangerous crossing as to require special warnings.¹⁰

The rule is well settled that evidence of subsequent repairs or improvements by a defendant altering the scene of an accident may not be admitted in evidence to show negligence on the part of the defendant.¹¹ There was ample evidence in the present case of the condition of the crossing at the time of the collision, and we do not think that the evidence of subsequent repairs and improvements was admissible under the theory employed in City of Montgomery v. Quinn, 1944, 246 Ala. 154, 19 So.2d 529, 531-533, that is, to show the condition existing at the time of the accident. We have found only one precedent as to the admissibility of evidence of subsequent conduct by a person not a party to the suit, and that is the well-reasoned opinion of the Third Circuit in Steele v. Wiedemann Machine Co., 1960, 280 F.2d 380, 382, 383. There the court said in part:

"The general rule excluding evidence of repairs made after an accident is based on two grounds:

(1) Policy purposes because

"`* * * the admission of such acts * * * would be liable to over-emphasis by the jury, and that it would discourage all owners * * * from improving the place or thing that had caused the injury, because they would fear the evidential use of such acts to their disadvantage * * *.\'

"(2) Relevancy theory in that

"`To improve the condition of the injury-causing object is therefore to indicate a belief merely that it has been capable of causing such an injury, but indicates nothing more * * *.\' That therefore `The supposed inference (owner\'s belief that his negligence caused the injury) from the act is not the plain and most probable one * * *.\'

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