Consolidated Rail Corp. v. Thomas

• Decision Date: 16 May 1984
• Docket Number: No. 4-283A52,4-283A52
• Citation: 463 N.E.2d 315
• Parties: CONSOLIDATED RAIL CORPORATION, Appellant (Defendant Below), v. Henry L. THOMAS, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 315

463 N.E.2d 315

CONSOLIDATED RAIL CORPORATION, Appellant (Defendant Below), v. Henry L. THOMAS, Appellee (Plaintiff Below).

No. 4-283A52.

Court of Appeals of Indiana Fourth District.

May 16, 1984.

Cheryl B. Stephan, La Porte, for appellant.

Steven W. Handlon, Rice, Rice & Handlon, Portage, for appellee.

YOUNG, Judge.

Henry L. Thomas brought suit against Consolidated Rail Corporation (Conrail) for injuries he suffered in a collision between his automobile and a Conrail train. The jury returned a verdict for Thomas, awarding him damages in the amount of $150,000, and the court entered judgment against Conrail accordingly. Conrail appeals from this judgment.

We affirm.

The collision giving rise to this litigation occurred on April 9, 1978, at a railroad crossing on Fifth Avenue in Gary, Indiana. Fifth Avenue is a five lane road running east and west. The railroad tracks at the crossing run northwest and southeast, intersecting Fifth Avenue at roughly a forty-five degree angle. The crossing itself consists of four sets of tracks. The two easterly sets of tracks are owned and maintained by the Norfolk & Western Railroad (N & W), and the two westerly sets of track are owned by Conrail. Thus, one driving west on Fifth Avenue would cross the N & W tracks first and then the Conrail tracks. Between N & W's tracks and Conrail's is a space of 119 feet, measured along the road. N & W maintains warning signals on the east side of the crossing, including a crossing gate to stop traffic approaching from the east. Conrail has similar warning signals on the west side of the crossing. The crossing gates have signs that read "4 Tracks". Fifth Avenue is straight and level at the crossing.

Thomas approached this crossing from the east at 12:45 a.m. on April 9, 1978. He observed that the N & W signals were not flashing and that the gate was not down. He passed over the N & W tracks and drove toward the Conrail tracks at approximately 20 miles per hour. At this time, a Conrail train was approaching the crossing from the northwest on the westernmost Conrail track, traveling at ten to twelve miles per hour. The train thus came toward Thomas from his right, at a forty-five degree angle from his line of sight. Thomas testified that, because the N & W signal was not activated, he was not looking for a train. His car hit the front of Conrail's lead engine, and Thomas suffered severe injuries to his jaw and right leg.

At the time of the collision, the weather was clear and the road was dry. The crossing was not well lit, although there were streetlights nearby. There was no moon that night. As to the visibility of Conrail's train, several Conrail employees testified that the train's headlight was on bright and that the engineer repeatedly sounded the train's horn as he neared the crossing. Both Thomas and the engineer testified, however, that tall bushes near the crossing between N & W's tracks and Conrail's would have obstructed Thomas's view of the approaching train.

The N & W signals facing Thomas as he entered the crossing were not working. Conrail's employees testified, however, that the Conrail signals and gate on the west side of the crossing were working. These signals included flashers focused toward traffic coming toward the crossing both from the east and from the west. Thomas said he did not notice the Conrail gate on the far side of the crossing from him because it was far to his left, across four lanes. Thomas also said eastbound traffic was coming toward him as he entered the crossing. The warning bell on Conrail's signal was ringing, but Thomas said a nearby factory made the area a noisy one.

At trial, Thomas showed that Conrail employees had known for some time that the N & W gate was not working. Thomas accordingly argued that Conrail was negligent in failing to repair the gate, as a contract with N & W allegedly entitled it to do, and in failing to post a flagman to warn drivers approaching from the east. Conrail in turn argued that Thomas was contributorily negligent in failing to see the train coming in time to stop. The jury found for Thomas, and this appeal ensues.

On appeal, Conrail raises six issues:

1) whether the trial court erred in allowing Thomas's attorney to testify at trial;

2) whether the trial court erred in admitting a photograph of the collision scene taken at night;

4) whether the trial court erroneously admitted a written contract between Conrail and N & W;

4) whether the trial court erred in denying Conrail's motion for a directed verdict;

5) whether the trial court erred in refusing to give Conrail's tendered instructions on Thomas's alleged contributory negligence in failing to look or listen for approaching trains; and

6) whether the trial court erred in refusing to give Conrail's tendered instruction on the factors to be considered in assessing Thomas's alleged contributory negligence.

I.

Conrail first contends the trial court erred in allowing Thomas's attorney Donald Rice to testify at trial. Thomas's case depended in part on a 1950 agreement between the Pennsylvania Railroad and the Wabash Railroad--predecessors in interest to Conrail and N & W respectively. Under this agreement, if N & W's crossing gate malfunctioned and N & W failed to repair it within a reasonable time, Conrail had the right to make repairs. Rice testified that Conrail's attorney gave him a xerographic copy of this agreement, representing it to be authentic. Conrail objected to this testimony, arguing that Rice should be barred from taking the stand unless he withdrew as Thomas's attorney.

Conrail depends on Indiana's Code of Professional Responsibility, Disciplinary Rule 5-102(A).

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).

The "circumstances enumerated" in D.R. 5-101(B) include situations where "the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony." D.R. 5-101(B)(2).

We note that Conrail cites no authority for the proposition that it is reversible error to allow an attorney to testify in contravention of D.R. 5-102(A). Nor are we convinced that Rice violated the rule by testifying. Rice's testimony was intended to establish the authenticity of the tendered agreement, clearly "a matter of formality" bearing only tangentially on the merits of the case. Further, in light of the representations of Conrail's attorney, Rice had "no reason to believe that substantial evidence [would] be offered in opposition to the testimony." In fact, no such contrary evidence was offered. Thus, this case clearly falls under D.R. 5-101(B)(2), an exception to the requirements of D.R. 5-102(A), on which Conrail relies. The trial court properly allowed Thomas's attorney to testify.

II.

Conrail next claims the court erred in admitting plaintiff's exhibit nine, a night photograph of the intersection where Thomas struck the train. This photograph and plaintiff's exhibit eight, which was admitted without objection, were taken some time after the collision. They depict traffic stopped at the crossing at night as a train approaches. Both photographs were taken from the westbound side of the street, on which Thomas was traveling before the collision. Conrail challenges exhibit nine here on the grounds that it does not accurately depict the scene as it appeared on the night of the collision. Conrail points out that, in identifying the photograph, Thomas said "[it] looks like intersection at night. Only three things wrong." Conrail also notes that exhibit nine is darker than exhibit eight, so that only lights and signs are visible in it. Thus, Conrail argues, exhibit nine is inaccurate and should not have been admitted. Conrail also argues that exhibit nine is so dark and unclear that it had no probative value.

Generally, photographs introduced in conjunction with a witness's testimony are not admitted as direct evidence of the things depicted but only to help the jury visualize what the witness's testimony describes. In such cases, the photograph essentially becomes a part of the witnesses's testimony. See Haven v. Snyder, (1931) 93 Ind.App. 54, 176 N.E. 149. Accordingly, such photographs are admissible, within the limits of relevancy, upon a showing that they truly and accurately portray the things depicted. Bray v. State, (1982) Ind., 430 N.E.2d 1162. "However, not every discrepancy between a photograph and its subject warrants the photograph's exclusion; few photographs would ever be admitted under so stringent a requirement." Gill v. State, (1977) 267 Ind. 160, 166, 368 N.E.2d 1159, 1162. Rather, a photograph will be admissible so long as the discrepancies between it and its subject are not materially misleading either because they are minor or because the witness explains them "in such a way that the jury would not be misled." Id. Whether a photograph is admissible under this standard is a matter for the trial court's discretion. Thornton v. Pender, (1978) 268 Ind. 540, 377 N.E.2d 613.

Here, Thomas said exhibit eight reasonably depicted the intersection as it appeared on the night in question and that it would aid him in describing the scene to the jury. He then said that the same things would be true of exhibit nine, the photograph at issue here, except that there were "only three things wrong." Although Thomas should have given an explanation of these discrepancies before the photograph was admitted, he refrained from discussing any discrepancies in exhibits eight and nine upon the...