Albrecht v. Baltimore & Ohio R. Co.
| Decision Date | 05 January 1987 |
| Docket Number | No. 85-1789,85-1789 |
| Citation | 808 F.2d 329 |
| Parties | 22 Fed. R. Evid. Serv. 530, 1986-1987 O.S.H.D. ( 27,806 Charles A. ALBRECHT, Appellee, v. BALTIMORE & OHIO RAILROAD COMPANY, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Ransom J. Davis (H. Russell Smouse, Nancy S. Allen, Melnicove, Kaufman, Weiner & Smouse, C. Keith Meiser, Baltimore, Md., on brief), for appellant.
J.B. Blumenstiel (Grieser, Schafer, Blumenstiel & Slane Co., Columbus, Ohio, William P. Baker, Baker & Baker, Baltimore, Md., on brief), for appellee.
Before WIDENER, ERVIN and WILKINSON, Circuit Judges.
The defendant, Baltimore and Ohio Railroad Co., appeals from an adverse judgment under the Federal Employer's Liability Act (FELA) after a jury trial. The defendant was found, negligently, to have maintained working conditions causing the plaintiff's injury when plaintiff fell from a ladder at his work station.
On appeal, the B & O asserts that the court erroneously admitted into evidence three remedial measures which were taken by the employer after the plaintiff's accident. Since we conclude that two of these remedial measures were improperly admitted in violation of Rule 407 of the Federal Rules of Evidence, we vacate the judgment and remand for a new trial.
Charles A. Albrecht was employed by the B & O as a stationary engineer. His duties included monitoring and recording meter readings periodically from various meters and gauges in the boiler room of the railroad's Riverside Power Plant. While most of these meters were eye level, one of them was located on a wall some distance above the floor and behind a covered brine tank that was approximately four feet high and three feet in diameter. The stationary engineers, therefore, had to climb several feet and lean over the tank in order to read the meter.
The engineers first used an inverted five gallon plastic bucket to climb high enough to see the meter but abandoned it because it was hazardous. The railroad provided an aluminum A-frame ladder approximately 8 to 10 feet tall for the engineers' use, but they rarely used it, since, according to them, the concrete floor near the meter was elevated, creating a great risk of it tipping over.
One of the engineers placed a piece of wooden rung ladder against the side of the tank. Since the top of the ladder reached the top of the brine tank, the engineers could not hold onto the ladder as their feet neared the top of it. In addition, the top rung was often against the round surface of the tank causing the ladder to wobble. The ladder was nearly always left in position against the tank.
On March 1, 1982, Albrecht attempted to ascend the ladder to read the meter during his normal course of duty. With his pad and pen in hand, he climbed the first rung and was stepping on the second rung when his foot slipped from the first rung causing him to fall backwards. He was able to keep from falling to the floor by reaching behind and catching himself, but, in so doing, he wrenched his back, causing a severe injury.
Since his accident, Albrecht has twice undergone back surgery for his injury, and remains under treatment and on medication for his pain. Albrecht was 50 years old at the time of trial and was awarded a large verdict.
The railroad admittedly destroyed and discarded the wooden rung ladder immediately after Albrecht's accident, while he was at the hospital, allegedly to prevent a recurrence of the incident. It also constructed permanent metal steps to place in front of the tank within two days of the accident. Finally, a few months after the accident, the railroad moved the meter down to eye level and out from the wall so that the engineers could read it without climbing.
Although the trial court granted the railroad's pretrial motion to exclude corrective measures under Federal Rule of Evidence 407, all three were subsequently admitted at trial. The railroad now appeals from those rulings. It also appeals from the court's ruling allowing into evidence safety regulations under the Occupational Safety and Health Act (OSHA), asserts insufficient evidence of negligence by the railroad for a finding of negligence, challenges the jury award as excessive, and complains of certain incidents at trial. We conclude that the court erroneously admitted into evidence the construction of the metal steps and the moving of the meter to eye level.
Federal Rule of Evidence 407 enacted the common law rule excluding subsequent remedial measures to prove negligence, with certain exceptions. Werner v. UpJohn Co., Inc., 628 F.2d 848, 853 (4th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981). Rule 407 follows:
Rule 407. Subsequent Remedial Measures.
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
The plaintiff argues that testimony that the meter was subsequently moved was properly admitted to show the feasibility of safer measures the railroad could have taken.
Although the railroad expressly stipulated prior to trial that feasibility was not controverted, the plaintiff points to testimony by a railroad employee at trial that it says disputed the feasibility of moving the meter prior to the accident. He, therefore, argues that this put feasibility in issue at trial, and, under Rule 407's exception, the moving of the meter was properly admitted.
We find that the feasibility of moving the meter and constructing the metal stairs was not in issue at trial until the plaintiff began questioning the witness explicitly on these measures.
Evidence of subsequent remedial measures, however, may not be used to show negligence unless under an exception in Rule 407. UpJohn, 628 F.2d at 853-56. It is not for the plaintiff to put feasibility in issue, for feasibility is not in issue unless and until controverted by the defendant. UpJohn, 628 F.2d at 855. Here, the railroad not only did not affirmatively dispute feasibility, it conceded feasibility before the trial. The plaintiff's questioning, therefore, was improper, and the testimony with respect to moving the meter was erroneously admitted.
Following the accident, the railroad built some metal stairs for the employees to use to read the meter. One of the...
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...negligence per se; reduction of award because of four percent comparative fault affirmed without discussion); Albrecht v. Baltimore & Ohio R. Co., 808 F.2d 329 (4th Cir.1987) (FELA case; violation of OSHA regulation is not negligence per se; statement in dicta that issue of comparative negl......
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Employee safety and health
..., 32 F.3d 408, 409-11 (9th Cir. 1994); Ries v. AMTRAK , 960 F.2d 1156, 1160-65 (3d Cir. 1992); Albrecht v. Baltimore & Ohio R.R. Co. , 808 F.2d 329, 332-33 (4th Cir. 1987). Employers who have workers’ compensation insurance generally need not be concerned about the prejudicial impact of an ......
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Employee Safety and Health
..., 32 F.3d 408, 409-11 (9th Cir. 1994); Ries v. AMTRAK , 960 F.2d 1156, 1160-65 (3d Cir. 1992); Albrecht v. Baltimore & Ohio R.R. Co. , 808 F.2d 329, 332-33 (4th Cir. 1987). Employers who have workers’ compensation insurance generally need not be concerned about the prejudicial impact of an ......
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Table of cases
...758, 762 (9th Cir. 1998), §9:1.B Albert v. Runyon , 6 F. Supp. 2d 57 (D. Mass. 1998), §25:6.F.2 Albrecht v. Baltimore & Ohio R.R. Co. , 808 F.2d 329, 332-33 (4th Cir. 1987), §19:2 Alden v. Maine , 527 U.S. 706 (1999), §§9:1, 9:1.B Aldrup v. Caldera , 274 F.3d 282 (5th Cir. 2001), §21:4.B.4 ......
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Employee Safety and Health
..., 32 F.3d 408, 409-11 (9th Cir. 1994); Ries v. AMTRAK , 960 F.2d 1156, 1160-65 (3d Cir. 1992); Albrecht v. Baltimore & Ohio R.R. Co. , 808 F.2d 329, 332-33 (4th Cir. 1987). Employers who have workers’ compensation insurance generally need not be concerned about the prejudicial impact of an ......