Erskine v. Consolidated Rail Corp.

• Decision Date: 17 March 1987
• Docket Number: No. 85-3478,85-3478
• Citation: 814 F.2d 266
• Parties: Max D. ERSKINE, Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 266

814 F.2d 266

Max D. ERSKINE, Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellee.

No. 85-3478.

United States Court of Appeals Sixth Circuit.

Argued Feb. 10, 1987.

Decided March 17, 1987.

Herbert L. Bernsteen, Deborah Purcell Goshien (argued), Cleveland, Ohio, for plaintiff-appellant.

Thomas R. Skulina (argued), Sheila A. McKeon, Skulina & McKeon, Cleveland, Ohio, for defendant-appellee.

Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge.

MILBURN, Circuit Judge.

Plaintiff Max Erskine appeals from the judgment of the district court denying his motion for a new trial. For the reasons set forth below, we affirm in part, reverse in part, and remand.

I.

Plaintiff Max Erskine was employed by defendant Conrail from 1941 until February 1982. On May 27, 1980, he was working on a caboose with an angle cock that was allegedly defective. Later that day, in preparation for a switching operation, plaintiff attempted to release the air in the brake system by turning the angle cock. He testified that, because the angle cock was stiff, he had to use excessive force to loosen it. Consequently, the air was released too quickly, and plaintiff could not control the air hose attached to the angle cock. The metal end of the hose hit him in the jaw, causing extensive injury. Although plaintiff subsequently returned to work, his injury was exacerbated by cold weather. He was forced to keep his head wrapped in order to keep it warm. Because this was a safety hazard, Erskine was advised to leave the railroad.

On February 24, 1982, plaintiff filed the present action for personal injuries resulting from the accident. He alleged violations of the Federal Safety Appliance Act, 45 U.S.C. Sec. 1 et seq., and the Federal Employer's Liability Act ("FELA"), 45 U.S.C. Sec. 51 et seq.

Plaintiff encountered tremendous difficulty in his efforts to conduct discovery. On February 24, 1982, he filed a request for production of documents including maintenance records on the caboose in question, witness statements, and plaintiff's personnel records.

On June 14, 1982, plaintiff filed interrogatories requesting information regarding reports prepared after the accident, records of disciplinary action taken against plaintiff, and "medical or other documents" regarding plaintiff. Plaintiff also filed a second request for production of documents, requesting plaintiff's medical records in the possession of defendant.

On October 12, 1982, defendant answered plaintiff's interrogatories. Defendant stated that the only inspection of the caboose occurred on May 30, 1980, and that plaintiff was verbally reprimanded as a result of his alleged negligence. Defendant stated that no departmental investigation was performed.

On November 3, 1982, plaintiff filed a motion to compel response to his request for production of documents and to complete answers to his interrogatories. The motion was granted on January 27, 1983 and defendant was given thirty days to comply.

However, defendant failed to comply despite plaintiff's attempts to arrange the requested discovery. At a pretrial conference on June 8, 1983, defendant was given until July 3, 1983, to respond. Defendant then requested an extra thirty days, and plaintiff waited. Finally, on August 11, 1983, plaintiff filed a motion for default judgment. The motion was withdrawn on August 16, because defendant's response to the discovery request crossed in the mail with plaintiff's motion. Plaintiff contends that these responses were incomplete.

On January 10, 1984, the court granted plaintiff thirty days in which to complete discovery. At that time, summary jury trial was set for March 14, 1984. At the summary jury trial, the jury rendered a verdict for the plaintiff on his claim under the Federal Safety Appliance Act.

On March 5, 1984, plaintiff filed a request for admissions. On April 6, 1984, having received no response, plaintiff filed a motion requesting that all matters contained in the March 5 request be deemed admitted. Plaintiff also filed a motion for special instructions to be given to the jury prior to closing arguments, and a "motion to strike; motion in limine; and motion for sanctions," requesting that Conrail be restricted from producing or commenting on any documents not produced during the course of discovery.

On December 13, 1984, the court entered an order requiring counsel to prepare a proposed pretrial order to be submitted thirty days before trial, which was originally scheduled for March 12, 1985. In response to this order, plaintiff submitted a proposed pretrial order on March 7, 1985, containing lists of proposed witnesses and exhibits. Defendant prepared a proposed pretrial order, which was mailed to plaintiff on March 19, 1985. ¹ Plaintiff's proposed order was amended on April 8, 1985. Trial was held April 9-11, 1985.

During trial, defendant introduced four documents which had not been provided to plaintiff during the course of discovery. Exhibits I and J are accident reports completed after the incident. Exhibit L is a committee report prepared by Thomas Huckabone, a Conrail trainmaster, after investigation of the incident. ² Although plaintiff objected to the introduction of these exhibits on the ground of surprise, the district court admitted them as business records.

Defendant moved for a directed verdict on plaintiff's claim under the Federal Safety Appliance Act. The district court granted the motion on the ground that plaintiff had failed to establish a violation of the Act. The court submitted plaintiff's claim of negligence to the jury, which found that the angle cock was not defective, that Conrail was not negligent, and that plaintiff's own negligence was the sole cause of his injury.

On April 22, 1985, plaintiff filed a motion for a new trial, alleging that he had been prejudiced by the introduction of materials not produced during the course of discovery and that the district court erred in directing a verdict on the issue of liability under the Federal Safety Appliance Act. The motion was denied by order dated May 23, 1985.

In this appeal plaintiff presents two issues for our consideration:

(1) whether the district court erred in failing to submit plaintiff's claim under the Federal Safety Appliance Act to the jury;

(2) whether the district court erred in refusing to grant a new trial on the basis of prejudice allegedly caused by the introduction of documents not provided in the course of discovery.

II.

A.

As indicated above, the district court refused to submit plaintiff's claim under the Federal Safety Appliance Act to the jury because it found that the type of accident in which plaintiff was injured is not encompassed by the Act. The standard utilized for determining whether a claim may be submitted to the jury is a familiar one:

For a case to be properly submitted to the jury, there must be "more than a scintilla" of evidence supporting the claim. Brady v. Southern Railway Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed.2d 239 (1943).

When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict the court should determine the proceeding by non-suit, directed verdict ... or by judgment notwithstanding the verdict. By such direction of the trial the result is saved from the mischance of speculation over legally unfounded claims.

Id. at 479-80, 64 S.Ct. at 234. See also Morelock v. NCR Corp., 586 F.2d 1096, 1104 & n. 10 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979); Kerwood v. Mortgage Bankers Ass'n of America, Inc., 494 F.Supp. 1298 (D.D.C.1980). In determining whether the evidence is sufficient to be sent to the jury or to support a jury verdict, the evidence, and reasonable inferences therefrom, is to be viewed in the light most favorable to the non-moving party and the court must not consider the credibility of witnesses nor weigh the evidence. Morelock, 586 F.2d at 1104. To do otherwise is to substitute the court's opinion for that of the jury. Id.

Wilkins v. Eaton Corp., 790 F.2d 515 (6th Cir.1986). See also Bellamy v. Bradley, 729 F.2d 416, 418 (6th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 579 (6th Cir.1979). The same standard is utilized by an appellate court reviewing the trial court's disposition on the motion. Milstead v. International Brotherhood of Teamsters, Local Union No. 957, 580 F.2d 232, 235 (6th Cir.1978).

Section 1 of the Federal Safety Appliance Act provides:

It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.

45 U.S.C. Sec. 1. Section 9 of the Act provides further guidelines with respect to air brakes, requiring every train to have power brakes on not less than fifty percent of the cars. 45 U.S.C. Sec. 9. The percentage has been increased to eighty-five percent. 49 C.F.R. Sec. 232.1.

Plaintiff attempts to prevail on his claim under the Federal Safety Appliance Act because injury caused by violation of the Act is actionable without proof of negligence. "[A] failure of equipment to perform as required by the Safety Appliance Act is in itself an actionable wrong, in no way dependent upon negligence and for the proximate results of which there is liability--a liability that cannot be escaped by proof of care or diligence." O'Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187 ...