Brown v. Cedar Rapids and Iowa City Ry. Co.

• Decision Date: 11 June 1981
• Docket Number: No. 80-1209,80-1209
• Citation: 650 F.2d 159
• Parties: 8 Fed. R. Evid. Serv. 445 Lester Gene BROWN, Appellee, v. CEDAR RAPIDS AND IOWA CITY RAILWAY COMPANY, a corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 159

650 F.2d 159

8 Fed. R. Evid. Serv. 445

Lester Gene BROWN, Appellee, v. CEDAR RAPIDS AND IOWA CITY RAILWAY COMPANY, a corporation, Appellant.

No. 80-1209.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 11, 1980.

Decided June 11, 1981.

William M. Dallas, Cedar Rapids, Iowa, for appellant.

William G. Jungbauer, Yaeger & Yaeger, Minneapolis, Minn., for appellee.

Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Cedar Rapids and Iowa City Railway Co. (the Railroad) appeals from a verdict and $92,500 judgment ¹ for Lester Gene Brown (Brown) in his action brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60.

The facts of the accident are not in dispute. Brown is a brakeman employed by the Railroad. On April 10, 1975, he was riding on the side of a moving boxcar, relaying signals from the conductor to the engineer. He was hit in the head by a metal derail switching stand located less than eight feet (8') from the center line of the adjacent track. He suffered a skull fracture and concussion, neck strain, shoulder strain, and knee strain.

Brown alleged that the Railroad was negligent in failing to provide him a reasonably safe place to work. The Railroad generally denied negligence on its part and alleged that Brown's injuries were caused by his contributory negligence in failing to keep a proper lookout. The jury found for Brown. This appeal followed.

I. Evidence of State Rules

Under the FELA, negligence must be determined by common law principles as established and applied in federal courts. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026, 93 L.Ed. 1282 (1949). The Railroad's duty to provide a safe place to work entails not only proper construction of structures but also a continuing duty to maintain the premises in safe condition. Lowden v. Hanson, 134 F.2d 348, 351 (8th Cir. 1943). In a FELA action, the employee must show by direct or circumstantial evidence that (1) an officer, employee or agent of the railroad was responsible, through negligence, for the presence of the unsafe condition; or (2) at least one of such persons had actual knowledge of its presence before the accident; or (3) the unsafe condition had continued for a sufficient length of time to justify the inference that failure to know about it and remove it was due to want of proper care. Barbour v. Baltimore & Ohio R.R., 105 Ohio App. 191, 152 N.E.2d 134, 139 (1957). See Harp v. Illinois Central Gulf R.R., 55 Ill.App.3d 822, 12 Ill.Dec. 915, 370 N.E.2d 826 (1977).

State railroad rules provided that switch stands shall have horizontal clearances of not less than eight feet from the center line of the adjacent track to the nearest part of the switch stand. The rule had originally been adopted by the Board of Railroad Commissioners of the State of Iowa, effective January 15, 1936. Apparently, however, the rules were not filed in the office of the Secretary of State until December 28, 1951. The 1951 filing states (emphasis added): "These rules apply to all new construction of tracks, bridges, building and other structures adjacent to the tracks of railroads, carried on after date on which these rules became effective."

The rules were revised in 1975 and became effective March 1, 1976, but the eight foot clearance remained unchanged. The 1975 booklet states (emphasis added) "These rules apply to all new construction of tracks, bridges, buildings and other structures and facilities adjacent to the tracks of railroads carried on after January 15, 1936."

Over the Railroad's objections, the court admitted the 1975 booklet as an exhibit, but did not allow it to go with the jury during deliberations. The 1951 rule was read to the jury.

The Railroad contends that it was error to admit the 1975 revision, which did not take effect until after the date of the accident. The booklet was admitted to rebut the Railroad's claim that Brown had not shown continuity of the rule since 1936. The standard actually had remained unchanged from 1936 to the present. But the Railroad claims it was prejudiced because the quoted language from the booklet provided a basis for an inference that the switch stand had been unlawfully built and maintained after 1936, when in fact the 1936 rule had not been officially filed until 1951. ² We will assume, without deciding, that it was error to admit the 1975 booklet. It was not reversible error, however, because, as discussed below, it was merely cumulative.

The Railroad also contends that it was error to admit the 1951 rule because the 1951 rule applied only to new construction and there was no evidence that the switch stand was constructed after 1951. Therefore, the Railroad claims that it is entitled to a presumption that the switch stand was lawfully built and maintained. ³ This contention lacks merit.

The jury was not required to draw any inference at all about when the switch stand was built. The case was not submitted on a negligence per se basis, but rather on common law negligence. The court assumed that the stand was constructed before the regulations took effect and, therefore, did not violate the regulations. Nevertheless, the court found, "This action of the responsible public authorities is relevant in determining the common law standard of care to be observed by defendant " Brown v. Cedar Rapids & Iowa City Ry., No. C 78-21 (N.D.Iowa Feb. 25, 1980) (order denying motion for new trial) (slip op. at 4), citing Curtis v. District of Columbia, 124 U.S.App.D.C. 241, 363 F.2d 973, 974-75 (1966) (subsequently enacted building code admitted). Cf. Hassan v. Stafford, 472 F.2d 88, 94 (3d Cir. 1973) (expert cross-examined about subsequently enacted fire safety code).

Instruction No. 12 defined the limited purpose for which the rules were admitted thusly:

There is evidence in this case of a state regulation regarding track clearances which provides that switch stands exceeding four feet in height shall have horizontal clearances of not less than eight feet from the center line of the track.

Evidence of this regulation is admissible as bearing on whether defendant used due care under the circumstances to provide plaintiff with a safe place to work. Failure to comply with the regulation, though not conclusive on the issue of negligence, is one of the factors along with all the other evidence which you may consider in determining whether defendant was negligent.

The trend in federal as well as state court is to allow admission of advisory safety codes promulgated by governmental authority as showing an acceptable standard of care. Riley, The Admissibility of Advisory Safety Codes in Iowa on the Issue of Negligence, 26 Drake L.Rev. 409 (1976-77). The trend also favors admission of industry or voluntary association codes and of private codes adopted by an employer. Riley, supra, at 411-17. See also Annot., 58 A.L.R.3d 148 (1974); Annot., 43 A.L.R.2d 618 (1955). Such codes do not have the force of law and do not establish negligence per se.

In a FELA case, the First Circuit affirmed admission of standards concerning the design of highway and railroad crossings against the defendant's contention that those standards were more stringent than the reasonably prudent person standard. Boston & Maine R.R. v. Talbert, 360 F.2d 286, 290 (1st Cir. 1966). In that case, as in this one, the court instructed the jury on the standard of care to be applied and also instructed the jury that the safety standards were "one more piece of evidence" to consider. Id. See also Quinn v. United States, 312 F.Supp. 999, 1005 (E.D.Ark.1970), aff'd, 439 F.2d 335 (8th Cir. 1971) (Army Corps of Engineers traffic control regulations); Northern Lights Motel, Inc. v. Sweaney, 561 P.2d 1176 (Alaska 1977) (Uniform Building Code); St. Louis-San Francisco Ry. v. White, 369 So.2d 1007 (Fla.App.) (American Association of Railroads rules), cert. denied, 378 So.2d 349 (Fla.1979); Davis v. Marathon Oil Co., 64 Ill.2d 380, 1 Ill.Dec. 93, 356 N.E.2d 93 (1976) (Division of Fire Prevention regulations); Huckleberry v. Missouri Pacific Ry., 324 Mo. 1025, 26 S.W.2d 980 (1930) (American Railway Association rules).

The "experience and expertise" of public authorities can provide valuable assistance to the trier of fact in determining what standard of care is effective and feasible. The jury was explicitly reminded by Instruction No. 12 of the limited purpose for which the clearance regulation was admitted. The instruction correctly stated the law. Further, in order to avoid prejudice, the court did not allow the regulations to go with the other exhibits to the jury room. There was no error in this regard.

Moreover, if the court had erred in admitting the eight-foot clearance standard, there was such strong other evidence of negligence by the Railroad that the clearance standard was merely cumulative evidence. Erroneous admission of cumulative evidence is harmless error. E. g., Coughlin v. Capitol Cement Co., 571 F.2d 290, 307 (5th Cir. 1978); see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2885 (1973). See Liepelt v. Norfolk & Western Ry., 62 Ill.App.3d 653, 19 Ill.Dec. 357, 378 N.E.2d 1232 (1978), rev'd on other grounds, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980) (FELA; admission of preempted statute).

Aside from whether the stand was negligently constructed, the facts show conclusively that the Railroad had actual knowledge of the dangerous condition. In 1974, the year before the accident involving Brown, another Railroad employee struck his head on this same switch stand while riding by on the side of a boxcar. That employee reported the accident to the Railroad dispatcher and warned that someone else would get hurt unless the stand was moved. The Railroad requires employees to ride on the side of the boxcars past this switch stand for a number of reasons. Thus, the Railroad had actual knowledge that an injury could occur to another...