Cody v. Louisville & Nashville R. Co.

• Decision Date: 26 August 1988
• Citation: 535 So.2d 82
• Parties: William Frederick CODY v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, et al. 86-802.
• Court: Alabama Supreme Court

Page 82

535 So.2d 82

William Frederick CODY v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, et al.

86-802.

Supreme Court of Alabama.

Aug. 26, 1988.

Rehearing Denied Oct. 28, 1988.

Irvin J. Langford of Howell, Johnston, Langford and Watters, Mobile, for appellant.

Jerry A. McDowell and Walter T. Gilmer, Jr. of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Louisville & Nashville Railroad Co.

John N. Leach, Jr., and Duane A. Wilson of Coale, Helmsing, Lyons & Sims, Mobile, for appellees. Rowley, Bell and Campbell.

ALMON, Justice.

In this personal injury action, the jury returned a verdict for the defendants and the trial court entered judgment on the verdict. Plaintiff, William Frederick Cody, asserts error with regard to the court's instructions to the jury, rulings on objections to evidence, and submission of affirmative defenses to the jury.

Cody was injured when a boxcar door fell on him. He was employed by International Paper Company ("I.P."). He was injured while he and another I.P. employee, Walter Nettles, were attempting to close the boxcar door. There was evidence that the top track on which the door traveled was bent and that part of a safety clip was missing. Nettles was using a "come-along" to pull the door, and Cody had been prying the door with a crowbar just prior to the accident. The Louisville & Nashville Railroad Company ("L & N") owned the boxcar and provided it to I.P. The boxcar had been sent to L & N's shop for a repair on a defective latch two days before the accident.

Cody sued L & N for negligence and breach of the Alabama Extended Manufacturer's Liability Doctrine. He sued three of his co-employees at I.P., Jack Rowley, Larry Bell, and Beason Campbell, alleging negligence and failure to provide a safe place to work. All the defendants raised contributory negligence and assumption of risk as affirmative defenses.

Cody argues first that the trial court erred in reading L & N's requested charge number seven to the jury. Cody's attorney objected on the ground that the requested charge "abolishes proximate cause" by instructing that contributory negligence would bar a recovery, without mentioning proximate cause. After other objections, the following exchange occurred:

"The Court: Gentlemen, I think that the totality of the charge would be correct. If I were to bring them in and charge them on Charge Seven, I feel that that was sufficiently covered in the definition of contributory negligence in my oral charge. I think that would give undue influence to the case. And do you want to charge them on that?

"[Cody's attorney]: No, go ahead."

Defendants argue that Cody thus waived any objection to the court's giving charge number seven, citing Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala.1981); Record Data International, Inc. v. Nichols, 381 So.2d 1 (Ala.1979); Lollar v. Alabama Power Co., 371 So.2d 9 (Ala.1979); and Odom v. Linsey, 365 So.2d 664 (Ala.1978).

Those and similar cases apply the following provision of Rule 51, A.R.Civ.P.:

"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Submission of additional explanatory instructions shall not be required unless requested by the court."

The Court in Record Data, supra, 381 So.2d at 7, gave the following explanation of the purpose of this rule: "Rule 51 affords the trial court an opportunity to correct any error in its charge before it becomes error with injury to reversal." In a similar vein, see, e.g., Grayco Resources, Inc. v. Poole, 500 So.2d 1030 (Ala.1986). By declining the trial court's offer to reinstruct the jury on proximate cause, Cody prevented the trial court from curing any error in the instructions.

Cody's attorney responds to the waiver argument only by saying that he "merely stated that he did not want the court to ... 'give undue influence to the case.' " This argument cannot change the fact that Cody effectively withdrew his objection by declining the trial court's offer to give an explanatory instruction. Any time such an explanation is given, it has a tendency to bring the matter to prominence, and no more so here than in any other case. An explanatory charge is the proper way for a court to cure any error in the instructions; therefore, by declining such a charge, Cody withdrew his objection.

We note in passing the defendants' argument that the court's instructions as a whole repeatedly instructed the jury that proximate cause is necessary before contributory negligence bars recovery. Because Cody withdrew his objection, we do not reach the merits of this argument.

The second issue alleges error in the following exchange during questioning of Nettles:

"Q. Why do you have a come-along and a crowbar? Can't you just shut the door with your hands?

"A. No sir. In some you can, the majority of them, you cannot.

"Q. Why ... are the majority of them needing the come-along and a crowbar?

"A. Well, for one reason, I would say, it's giving something of my own--because of lack of maintenance.

"[Attorney for L & N]: Your Honor, please, I object to that and move to exclude it. There's no predicate laid for any such opinion as that.

"The Court: Sustain the objection.

"[Attorney for L & N]: Ask the jury to disregard his comments, please sir.

"The Court: Grant the motion. Ladies and gentlemen, please disregard the last statement made by the witness."

After stating this issue, Cody provides neither argument nor citation of authority, merely stating that the issue is "self-explanatory." We note generally that witnesses must testify to facts and cannot express "mere matters of opinion," Wright v. Rowland, 406 So.2d 830, 831 (Ala.1981), and that it is within the trial court's discretion whether to allow a witness to give an opinion as an expert. Record Data International, supra. The trial court did not err in sustaining the objection that no predicate had been laid for the opinion expressed and in instructing the jury to disregard the answer.

Cody next argues that the trial court erred in allowing L & N to admit into evidence two of its answers to interrogatories propounded by Cody. The defendants respond that, because Cody had previously introduced questions and answers from the same set of interrogatories, the trial court did not abuse its discretion in allowing L & N to introduce the answers at issue in explanation of the answers introduced by Cody. After Cody's attorney read to the jury 42 out of 55 questions and their answers, L & N offered two of the questions and answers that Cody had omitted. The two questions regarded previous incidences of boxcar doors falling. L & N responded, "We have history of industry personnel pulling or prying the doors off the track, causing them to fall," and "We cannot prevent people from pulling or prying the doors off the cars and the danger of pulling or prying them off should be apparent to the person doing the same. It is infrequent that this occurs."

Cody cites authorities generally stating that answers to interrogatories may not be introduced into evidence by the party giving the answers. See Rule 33, A.R.Civ.P.; Annot., 13 A.L.R.3d 1312 (1967). L & N responds by stating that there is an exception to this rule: that, where the party propounding the questions introduces some of them, the party giving the answers can introduce omitted answers in explanation of those introduced by the opposing party.

No case has been decided in Alabama on this point since the adoption of the Alabama Rules of Civil Procedure. Prior practice in Alabama held that the examining party had the option of introducing answers to interrogatories, but that, if he did so, "he [had to] offer the whole, and [could not] select the answers or parts of answers suited to his purpose." Alabama Power Co. v. Bodine, 213 Ala. 627, 629, 105 So. 869, 871 (1925); Pope v. Ryals, 232 Ala. 260, 167 So. 721 (1936).

Rule 32(a)(4), A.R.Civ.P., states a comparable rule with regard to depositions: "If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which ought in fairness be considered with the part introduced...." L & N cites a case from the Supreme Court of New Mexico that applies rules, like ours, adapted from the Federal Rules of Civil Procedure, and succinctly sets forth a holding on point:

"It should be observed that ... the evidentiary use of answers to interrogatories by the interrogee is more carefully circumscribed than the like use of a deposition by a deponent. Because answers to interrogatories are self-serving statements not subject to the safeguards of cross-examination, they are generally inadmissible on behalf of the interrogee for the purpose of establishing any affirmative claim or defense. ..."...

"In this case, appellee introduced into evidence a part of appellant's answers to interrogatories. Appellant attempted to introduce the remainder of those...