Bach v. Penn Central Transp. Co.

• Decision Date: 23 August 1974
• Docket Number: No. 73-2123,73-2123
• Citation: 502 F.2d 1117
• Parties: Patricia BACH, Executrix, etc., Plaintiff-Appellant, v. PENN CENTRAL TRANSPORTATION CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1117

502 F.2d 1117

Patricia BACH, Executrix, etc., Plaintiff-Appellant, v. PENN CENTRAL TRANSPORTATION CO., Defendant-Appellee.

No. 73-2123.

United States Court of Appeals, Sixth Circuit.

Argued April 11, 1974.

Decided Aug. 23, 1974.

Richard M. Markus, Cleveland, Ohio, for plaintiff-appellant; Spangenberg, Shibley, Traci & Lancione, Cleveland Ohio, Donald S. McNamara, Columbus, Ohio, on brief.

Harrison W. Smith, Jr., Columbus. Ohio, for defendant-appellee.

Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit judges.

WILLIAM E. MILLER, Circuit Judge.

The appellant, executrix of her husband's estate, brought this action under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51 et seq., alleging that her husband's death was caused by appellee's negligence. She contends on appeal that erroneous instructions and rulings on evidence by the district court caused the jury mistakenly to find the decedent contributorily negligent to an excessive degree and also to return a damage award that did not fully reflect the decedent's future income. She therefore contends that she is entitled to a new trial.

James Bach, the decedent, was a railroad fireman for the appellee. On the day of his death he was a member of a five-man crew that picked up and dropped off cars at private commercial sidings in the Dayton, Ohio area. Approximately three hours after the fatal trip began, Bach left the train to use the restroom at a nearby service station. Rather than stop the train and wait for Bach to return, the conductor told him to wait for the train where he got off and that he would be picked up as the train returned over the same track on the way to the terminal. Witnesses who watched Bach return from the service station testified at trial that they saw him walk to the track, sit down on it and rest his head on his knees and arms. The train's whistle was sounded repeatedly as the engine approached, but Bach did not move from the track. He was struck by the train and killed.

The jury found that both the railroad and Bach were negligent but concluded that Bach was 80% At fault in causing the accident. As a consequence, the jury's award of $128,000 was reduced to $25,600.

A significant question on the present appeal is whether Section 4511.19 of the Ohio Revised Code should have been referred to by the court. This statute provides that in any criminal prosecution for driving while under the influence of alcohol, a court may admit evidence of blood alcohol concentration, provided that if the test is by blood analysis, rather than breath or urine, the blood must be withdrawn by a physician or registered nurse within two hours of the alleged violation. The sample must be analyzed by a person licensed by the Ohio Department of Health. The statute also provides that if the blood alcohol concentration is 10% Or more, there is a presumption that the defendant was under the influence of alcohol. If the concentration is less than .10%, no presumption exists. Montgomery County Coroner's office, testified for the appellee that as part of an autopsy on Bach, blood was withdrawn and analyzed for alcohol. The test showed that decedent's blood alcohol level was .135%. Appellant objected on the basis that the admissibility requirements of Section 4511.19 were not met: the sample was not withdrawn by a physician or registered nurse; it was withdrawn 17 hours after the accident rather than within the statutory two-hour period; nor was the sample analyzed by a person licensed by the Department of Health. The court overruled the objection and allowed the testimony.

The question of the applicability of Section 4511.19 again arose in the trial when the court without a request from either party gave the following instruction to the jury:

The Legislature of Ohio in a statute unrelated to this case has determined that a concentration of ten hundredths of one percent or more by weight of alcohol in the blood withdrawn within two hours creates a presumption that such person was under the influence of alcohol. This is only a presumption and it is not controlling upon you. It may be rebutted and you may also consider any other evidence presented to you such as the conduct, conversations or appearance of James Bach at or near the time of his death. The state of Mr. Bach's sobriety is a question of fact and like all questions of fact is within your exclusive province.

Appellant objected to the instruction, claiming that the presumption should not apply in civil cases.

We have been unable to find any Ohio case that discusses the applicability of Section 4511.19 to civil cases. Some other states have similar statutes which have been uniformly construed by the courts as having no application in civil cases. E.g. Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445 (1965); Mattingly v. Eisenberg, 79 Ariz. 135, 285 P.2d 174 (1955); ¹ Matthews v. All American Assurance Company, 226 So.2d 181 (La. App.1969); Carroll Houtz, 93 N.J. Super. 215, 225 A.2d 584 (1966). None of these decisions contains an extended analysis of the reasons the statute cannot be utilized in civil trials. Rather the courts have simply followed the literal wording of the statutes and have assumed that specific language would have been employed had the legislatures intended the statutes to apply in civil cases. Absent Ohio case law on the subject, we feel that a federal court sitting in that state should be governed by the wording of the statute without attempting a more expansive interpretation, thus limiting its reach to criminal proceedings.

Was the court's charge with respect to the Ohio statute reversible error? We think it was. Admittedly, there is some ambiguity in the instruction. The court stated that the statute was 'unrelated to this case.' The appellee stresses this language and argues that, whatever the reason the court had for giving the charge, it was clear from its wording that it did not apply in this case. To us, this argument is not persuasive. When the entire instruction is read, the words 'unrelated to this case' are hardly sufficient to remove from the minds of the jury that the Ohio legislature had adopted a statute predicated upon its conclusion that a concentration of ten hundredths of one per cent or more of alcohol in the blood of a person gives rise to a presumption that such person is under the influence of alcohol. The error was only compounded when the court proceeded to state that 'this is only a presumption and it is not controlling upon you. It may be rebutted and you may also consider any other evidence presented to you . . ..' If the statutory presumption was inapplicable the jury may well have wondered why the statute was referred to at all. If no statutory presumption existed, why was the jury advised that it was only a presumption which could be rebutted?

Appellee also points to the portion of the instruction that for the presumption to exist, the blood must have been withdrawn within two hours. Since in this case the blood was not withdrawn until 17 hours after Bach's death, it is surmised that the jury would not have applied the presumption and that the error was therefore harmless. Whether the jury did in fact construe the charge as stating that a rebuttable presumption existed in the case under Ohio law cannot of course be known to an absolute certainty. It can be said with considerable confidence, however, that the jury at least must have been confused. As it was error to give the charge and as it was at best confusing and misleading, we are not prepared to say that it was harmless. Where an erroneous instruction goes to the heart of an important issue in a case and is capable of leaving the jury with a false conception of the law, the risk of prejudice is unacceptably high.

As we have already said, the appellant argues that even though the presumption in Section 4511.19 does not apply in civil cases, the procedures contained in the statute for analyzing blood must be met before evidence of blood alcohol concentration may be introduced. This argument becomes irrelevant in view of our conclusion that the statute is inapplicable in civil actions. Aside from statute, evidence of blood alcohol concentration in appropriate cases should be received like any other expert testimony. The test procedures need not necessarily conform to those described in the statute, but they must accord with good practice in the field to assure reliable results. See Lawrence v. City of Los Angeles, 53 Cal.App.2d 6, 127 P.2d 931 (1942). Similarly, expert evidence would be admissible for interpreting the results-- for describing the physical and mental condition of a person with a given blood alcohol concentration. Lawrence v. City of Los Angeles,supra.

One more issue regarding Bach's alleged use of alcoholic beverages remains. Appellee read to the jury, over appellant's objection, portions of the deposition of the brakeman, one Mays, who stated that Bach had told him that he had gone on a drinking spree while in Cincinnati on Thursday evening. Also, Mays testified that on Saturday afternoon, the day of the accident, Bach had made some vague references to Wild Turkey bourbon-- references which fall short of establishing that Bach had had any contact with this brand of liquor. Appellant objected to the testimony regarding Bach's drinking in Cincinnati on Thursday because it was too remote in time to reflect his condition on Saturday. Similarly, appellant argues that since there was no evidence that Bach had been drinking the Wild Turkey...