Horace v. St. Louis Southwestern Railroad Company, 73-1396.

• Decision Date: 02 January 1974
• Docket Number: No. 73-1396.,73-1396.
• Citation: 489 F.2d 632
• Parties: Isaac HORACE, Administrator of Estate of Sadie Horace, Deceased, Appellant, v. ST. LOUIS SOUTHWESTERN RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

489 F.2d 632 (1974)

Isaac HORACE, Administrator of Estate of Sadie Horace, Deceased, Appellant, v. ST. LOUIS SOUTHWESTERN RAILROAD COMPANY, Appellee.

No. 73-1396.

United States Court of Appeals, Eighth Circuit.

Submitted November 16, 1973.

Decided January 2, 1974.

G. E. Snuggs, El Dorado, Ark., for appellant.

John G. Lile, Pine Bluff, Ark., for appellee.

Before VAN OOSTERHOUT and MOORE^*, Senior Circuit Judges, and WEBSTER, Circuit Judge.

WEBSTER, Circuit Judge.

In this appeal, appellant challenges the order of the District Court denying his motion pursuant to Fed.R.Civ.P. 60(b) for relief from an adverse final judgment. Appellant's wife, Sadie Horace, was fatally injured when the car she was driving was struck by a locomotive operated by appellee. As administrator of his wife's estate, appellant brought a wrongful death action against the railroad company in the United States District Court for the Western District of Arkansas, in which the accident occurred, alleging that the railroad was negligent in not maintaining its crossing warning device and in operating a fast train when such device was not in operation. Diversity jurisdiction was based upon 28 U.S.C. § 1332(a)(1). The case was tried to a jury which returned a verdict in favor of appellee.

No appeal was taken from the judgment entered April 20, 1972. The final order denying appellant's motion for a new trial was filed October 6, 1972. On March 5, 1973, appellant filed a motion for relief from judgment pursuant to Rule 60(b), Federal Rules of Civil Procedure, citing specifically subsections (1), (3) and (6). On May 7, 1973, Judge Harris denied the motion, and this appeal was timely taken from that order. We affirm.

Rule 60(b)¹ is addressed to the sound discretion of the trial judge and is not available as a substitute for appeal. Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir. 1969). It provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances. Id. at 835; Farmers Co-operative Elevator Association Non-stock of Big Springs, Neb. v. Strand, 382 F.2d 224, 232 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). The claim for extraordinary relief in this case is based upon the assertion that the charge to the jury contained fundamental error. Under the circumstances of this case, Rule 60(b) cannot properly be invoked for the purpose of extending the time for appeal which had already expired. Hoffman v. Celebrezze, supra, 405 F.2d at 837.

At the trial, appellee presented undisputed testimony that the train was proceeding at a speed of 25 miles per hour when the engineer observed Mrs. Horace approaching the crossing in her automobile at approximately 10 miles per hour. The train was then about 150 feet from the crossing. The engine bell was ringing. Mrs. Horace was observed at approximately the same time by the fireman and the brakeman, both of whom were in the cab with the engineer. When Mrs. Horace failed to stop at the intersection warning signal device, the engineer sounded his whistle and placed his brakes in emergency stop. Mrs. Horace was fatally injured in the resulting collision.

Appellee asserted the negligence of Mrs. Horace in failing to exercise ordinary care as an affirmative defense. Under Arkansas law, contributory negligence does not act as a total bar to recovery providing such contributory negligence is of less degree than the negligence charged to the railroad. This requires an assessment of the comparative negligence of the actors. Ark.Stat.Ann. § 73-1004. Appellant assigns as error the manner in which this task was explained to the jury.

In his charge, Judge Harris instructed the jury on the duty of the railroad to sound the locomotive bell as it approached an intersection; to provide warning signals at intersections and use ordinary care in their maintenance and operation. He also advised the jury that the driver of a motor vehicle had a duty to stop within 50 feet but not less than 15 feet from the nearest train rail whenever a clearly visible signal device warned of the approach of a train or when the train was plainly visible and in hazardous proximity to the crossing;² that such driver must use ordinary care to look and listen for trains, which may require stopping his vehicle; and that such driver must keep his vehicle under control.

These statements of the respective duties of ordinary care are not challenged by appellant. Rather, appellant contends that the court's failure to give an unrequested instruction on the railroad's statutory lookout duties³ constituted plain error in view of the court's further instruction to compare the negligence of the actors in arriving at a verdict. Stated another way, appellant contends that the jury could not assess the relative negligence of the actors without being instructed on the full extent of their respective duties.

The record does not disclose that appellant either asked for or objected to the failure of the court to instruct the jury on the lookout duties of the railroad company. In this appeal, he invokes the plain error doctrine to avoid the reach of Rule 51, Federal Rules of Civil Procedure:

No party may assign as error the giving

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