Butler v. Southern Pacific Company, 28965.

• Decision Date: 26 October 1970
• Docket Number: No. 28965.,28965.
• Citation: 431 F.2d 77
• Parties: Allison BUTLER, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

431 F.2d 77 (1970)

Allison BUTLER, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellee.

No. 28965.

United States Court of Appeals, Fifth Circuit.

August 27, 1970.

Rehearing Denied October 26, 1970.

W. M. Stephenson, New Orleans, La., Joseph E. Defley, Port Sulphur, La., for plaintiff-appellant.

Harry McCall, Jr., Chaffe, McCall, Phillips, Burke, Toler & Sarpy, New Orleans, La., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, and GEWIN and THORNBERRY, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from a judgment in a Louisiana diversity action to recover damages for injuries suffered by appellant Butler while unloading plywood from a freight car operated by appellee Southern Pacific Company. The jury in the district court found that Southern Pacific was negligent but was relieved of its negligence because of the intervening negligence of Butler's employer, United States Plywood Corporation. The district court rendered judgment for the defendant. We remand the case for a new trial because of error in the exclusion of evidence.

In 1962 U.S. Plywood engaged Southern Pacific to transport a quantity of plywood from Samoa, California to New Orleans, Louisiana. While en route the boxcar containing the plywood was derailed in Tesnus, Texas. The plywood was taken to San Antonio, where it was reloaded by Southern Pacific. Although most of the plywood was stacked horizontally in the boxcar, two stacks were loaded vertically, purportedly to tighten the load by filling an empty space. The vertical filler stacks were placed side by side across the boxcar and strapped together near the top by a single band. After loading was completed the boxcar was dispatched on its southern journey, and, after partial unloading in Shreveport, Louisiana, it was delivered to U.S. Plywood in New Orleans for total unloading. Pursuant to the unloading task, Mr. Allison Butler and other U.S. Plywood employees removed several horizontal bundles that lay adjacent to the vertical stacks. Soon thereafter the boxcar was rocked by movement of a heavily loaded dolly across a steel bridge from the car into the warehouse, and the vertical stacks toppled, pinning Butler from the waist down. The jury in the district court found that Southern Pacific was negligent in vertically stacking the plywood but failed to find proximate cause because it found that the conduct of the unloaders was an intervening cause of the incident. In addition, the jury found Butler contributorily negligent.

This appeal raises three points. Appellant contends that the court erroneously excluded certain evidence he offered, that the manner in which the trial judge questioned one of his rebuttal witnesses was so prejudicial to appellant that he was deprived of a fair trial, and that the trial judge erred in his charge to the jury with respect to intervening cause. Since we agree with appellant's first argument and find the court's exclusion of evidence serious enough to necessitate a new trial, we do not reach appellant's other two points.

One of the items that appellant sought to introduce into evidence was a report by the Specialized Operations Department of Southern Pacific entitled "How to Load Plywood in Closed Cars." Appellant sought to show by this report, which tended to indicate that plywood should be stacked horizontally, that appellee was aware of proper procedures for loading the material and thus was negligent in inserting a vertical filler stack when it reloaded the shipment. In addition, the report could well have been of probative value to appellant in regard to the reasonableness of the unloaders' conduct, since it might have established that they were correct in believing that the vertical stacks would be secured to the sides of the boxcar and thus would not fall when the horizontal stacks were removed. The trial judge excluded the report after a long distance telephone call indicated it was published subsequent to the incident. We hold that this exclusion was error and that it necessitates a new trial.

The admissibility of evidence in federal courts is governed by Rule 43(a), Fed.R.Civ.P., which states in part as follows:

All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made.

Under Rule 43, then, there are three possible sources of authority for admissibility: Federal statutes, decisions of the original federal courts sitting in equity, and state laws. We are required, after examining the sources, to use the most liberal rule dealing with the subject offered. In this case we find that the evidence sought to be introduced was admissible under the second standard as an admission of Southern Pacific.

We begin consideration of the question of admissibility with the proposition that "the Federal Rules and practice favor admission of evidence rather than exclusion if the proferred evidence has any probative...