Collins By and Through Kay v. Seaboard Coast Line R. Co., 81-7408
| Decision Date | 10 May 1982 |
| Docket Number | No. 81-7408,81-7408 |
| Citation | 675 F.2d 1185 |
| Parties | 10 Fed. R. Evid. Serv. 813 Arthur COLLINS, By and Through J. Benjamin KAY, III, as guardian ad litem, Plaintiff-Appellee, v. SEABOARD COAST LINE RAILROAD COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Nixon, Yow, Waller & Capers, John B. Long, Roy D. Tritt, Charles C. Stebbins, III, Augusta, Ga., for defendant-appellant.
Thomas R. Burnside, Jr., James B. Wall, Augusta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before TUTTLE, HENDERSON and CLARK, Circuit Judges.
The Railroad appeals from a judgment against it, following a crossing accident, principally on alleged errors of the trial court in the admission and exclusion of evidence.
The facts as admitted by the trial court, would warrant a jury's findings to the following effect:
The accident occurred in an industrial area just west of the city limits of Augusta, Georgia, where a fairly busily used highway crossed the Seaboard's tracks. There were two tracks, one of which was for through trains and the other for storage of cars for switching. There were the standard crossarm stop signs, 15 yards and 50 yards respectively from the nearest track, as required by the Georgia statute. There were no "active" signals, such as flashing lights or a bar to stop automobile traffic on Claussen Road. The Railroad's speed limit for this crossing was 47 miles per hour; the train was traveling a short distance before crossing the road between 55 and 60 miles per hour. 1 The crossing was a dangerous one, so that any train speed in excess of 25 miles per hour would have created an unsafe condition. Arthur Collins, the plaintiff, stopped his truck at the first stop sign and he slowed down to two or three miles per hour at the second stop sign, he then rolled onto the tracks at which time his motor choked up and the train struck him on the right hand side of his cab. He did not see the train before it struck. The train continued for 40 car lengths, with all its emergency brakes operating, before it came to a stop. Collins was seriously injured, resulting in two periods of hospitalization and surgery during one of which he became mentally incompetent. A guardian ad litem was appointed for him by the district court. He was totally and permanently disabled. The jury could reasonably find in his favor the sum of $258,218.86 (reduced by the court by $5,000 representing benefits received by the plaintiff from his employer's personal injury protection insurance).
1. The trial court erred in admitting evidence of a racially derogatory and highly prejudicial remark allegedly made by one of Seaboard's employees after the accident, which was not relevant to any issue in the litigation.
2. The trial court erred in prohibiting Seaboard from referring in opening statement or cross-examination to Collins' damaging admissions and by refusing to allow Seaboard during its own case to recall Dr. Kmiecik to testify as to Collins' competency at the time of said admissions.
3. The trial court erred in admitting evidence of subsequent collisions at the scene of the accident, where no evidence was offered to show either that the crossing and scene were unchanged or that the subsequent collisions occurred under similar conditions, and where the "evidence" was pure hearsay.
4. The trial court erred in allowing a so-called "human factors" expert to testify on matters not properly the subjects of expert testimony.
5. The trial court erred in allowing Collins to read into evidence Requests for Admissions propounded by Seaboard to Collins, and Collins' responses thereto.
6. The trial court erred in admitting evidence of Collins' blood alcohol test when his sobriety was not in issue.
7. The trial court erred in denying Seaboard's Motion for New Trial since the verdict was against the great weight of the evidence and was the result of bias, prejudice or mistake.
The court heard an objection in limine to the admission of such part of the expected testimony of a witness named Boyd as would state that he heard a statement by a person he took to be a member of the train crew: "We were standing there, watching them put Arthur in the ambulance and watching the police and one of these fellows said, 'there goes one more damn driver who is not going to cross this track without looking.' " The trial court overruled the objection. Then, before the jury, the following testimony was given by Boyd:
When I jumped the track to go to the car there were a group of men, there were two or three men standing around and one of them had a radio on his hip, it was one of these two-way mobile radios.
What caught my attention was the radio, somebody was talking on the radio from down where the engine was, there was still some fire around the engine, where the truck had been dragged and they were saying they needed some help down there to put the fire out.
Subsequently, from testimony of the Railroad engineer and the conductor it was established that the conductor was in communication with the engineer about the possibility of the engine blowing up. It was also established by the engineer's testimony that at the time Collins was placed in the ambulance he did make a comment. He said: "I am sure I said something like 'I'm sorry to see the man hurt and I hope he lives.' " It is thus clear that the evidence is undisputed that Wilson, the conductor, was at the scene of placing Collins in the ambulance and that he there made a statement in connection with the accident. There was only a dispute as to what he said. This was an issue of credibility for the jury to resolve.
With respect to the racial identification of Collins, as is evidenced by the part of the transcript quoted above, the defendant made no objection, made no motion to exclude the statement and, of course, made no motion for a mistrial. It will be noted, of course, that this word was not used by the witness Boyd when he made his statement to the trial judge out of the presence of the jury. The objection then made by the defendant was solely on the basis of relevance and on the ground that the prejudicial effect of such a statement greatly outweighed its evidentiary value under F.R.Ev. 403. However, noting the defendant's ground of objection actually made in limine, the court charged the jury at that point that having heard the testimony from Mr. Boyd, offered by the plaintiff and having heard the testimony of Mr. Wilson, an employee of the defendant denying that he made such a statement, they should determine whether the statement was made by the conductor of the train, and if they held that it had been made, they could consider it on the issue of liability, but they should disregard the statement entirely and expunge it in every way possible from their minds, if either they should find that no such statement was made or if they should find that no such statement was made by a Railroad employee who was responsible for the movement of the train. The defendant requested no special instruction with respect to the derogatory racial remark, and none was given. As noted in Weinstein on Evidence:
Since the trial judge is granted such a powerful tool by Rule 403, he must take special care to use it sparingly. The trier must rely primarily on the lawyer for decisions on what evidence will be useful to him.... If there is doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, it is generally better practice to admit the evidence taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.
Weinstein's Evidence 403-7.
We believe that the defendant's contention that such a remark if made by the conductor, was irrelevant to the issue of negligence cannot be sustained. The engineer testified that he was in charge of the train. He testified that he was an expert on judging the speed of the train. He testified that the prescribed speed limit by the railroad at this site was 47 miles per hour. There was ample evidence from which the jury could have found that the train at the time of the accident was traveling at more than 55 miles per hour. Since, the jury could have found that it was the responsibility of the conductor to call the engineer on his radio and have him slow the train down if in fact it was violating its own speed limits, we think the jury could infer from such a statement, if made, negligent conduct on the part of the Railroad at such a time and place.
Whether the racial word used should have been excluded...
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