Panger v. DULUTH, WINNIPEG AND PACIFIC RAILWAY CO., 73-1398.

• Decision Date: 11 January 1974
• Docket Number: No. 73-1398.,73-1398.
• Citation: 490 F.2d 1112
• Parties: Robert PANGER, Appellee, v. DULUTH, WINNIPEG AND PACIFIC RAILWAY COMPANY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

490 F.2d 1112 (1974)

Robert PANGER, Appellee, v. DULUTH, WINNIPEG AND PACIFIC RAILWAY COMPANY, Appellant.

No. 73-1398.

United States Court of Appeals, Eighth Circuit.

Submitted December 10, 1973.

Decided January 11, 1974.

COPYRIGHT MATERIAL OMITTED

Tyrone P. Bujold, Duluth, Minn., for appellant.

John C. Boylan, Minneapolis, Minn., for appellee.

Before GIBSON and ROSS, Circuit Judges, and SMITH, Senior District Judge.^*

GIBSON, Circuit Judge.

Defendant, Duluth, Winnipeg & Pacific Railway Co. (DW&P), appeals an $85,000 judgment entered on a jury verdict rendered in favor of its employee, Robert Panger, in this Federal Employers' Liability Act¹ action for injuries sustained by Panger during the course of his employment.

The plaintiff was employed as a bridge carpenter by DW&P, his job involving the building and repairing of railway bridges. On September 16, 1971, and since September 1, 1971, he was serving as a temporary lead hand due to the vacation of the regular lead hand, Mr. Tappa. The duties of a lead hand are similar to those of a sub-foreman and include the supervision of the activities of a work crew. The accident occurred September 16, 1971. Panger suffered a dislocated left shoulder and a fractured right shoulder.

On that date, Panger and the other members of the work crew arrived at Whiteface, a station on DW&P's tracks north of Duluth, Minnesota, at approximately 7:15 a. m. Panger, in accordance with his instructions, obtained a line-up which listed the movements of trains in the vicinity from a DW&P dispatcher at approximately 7:30 a. m. This line-up disclosed a southbound freight that left Virginia, Minnesota, north of Whiteface, at 6:40 a. m., a northbound freight which left Duluth at 5:10 a. m., and a work train somewhere on the line between Virginia and Harney, Minnesota, which is south of Whiteface.

Panger's work crew had been assigned to install culvert ends on a section of track north of Whiteface. On the two previous days the crew had remained at Whiteface painting boxcars due to heavy rail traffic and the presence of the work train. They could only reach their job site by use of a gasoline-powered motorcar which operated upon the railroad tracks. It was necessary before putting the motorcar upon the tracks to know what trains were on the single track between Duluth and Virginia in order to avoid a collision. The line-up procedure was used by the DW&P for this purpose. After receiving the line-up on the 16th, the crew decided that they would wait until the northbound freight from Duluth passed the station and then proceed behind it to their job site, thus gaining its interference against any southbound traffic. The testimony of Mr. Tack, the foreman of the work crew, indicated that although he felt this was an unsafe practice, he had engaged in it himself.

The crew observed the southbound freight pass Whiteface; they then waited for the northbound freight from Duluth. After it passed, they placed the motorcar upon the tracks; this took approximately five minutes and by this time the northbound train was out of sight. They then proceeded some three miles north of Whiteface and were on a sharp curve when they spotted the engine of the work train coming in their direction. Panger and other members of the crew jumped from the motorcar and in so doing Mr. Panger suffered the injuries involved in this suit. Mr. Seehus, the motorcar operator, remained on the motorcar until he brought it to a stop and then jumped. The motorcar was struck by the work train and driven some 300 feet down the tracks from the point of impact.

DW&P contends that all the negligence involved in the accident, if any, should be imputed to Panger since he was acting in a supervisory capacity. Further, the negligence causing the accident was either Panger's decision to place the motorcar on the tracks, knowing that a work train was in the vicinity, or in Panger permitting his crew to place the motorcar on the tracks under the circumstances. DW&P asserts that it should have been granted a directed verdict or a judgment N.O.V. At trial, there was a factual dispute between the parties as to whether it was one of Panger's duties to decide when the motorcar should be used. Further, if the railroad was negligent in not including the direction of movement of the work train in the line-up or equipping motorcars with radios as argued, this negligence would not be imputed to Mr. Panger even if he were acting in a supervisory capacity. These questions were properly left to the jury to determine.

Under this statute FELA the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.

Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957), and

For practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of this suit.

Rogers, supra at 508, 77 S.Ct. at 449.

We think there was evidence before the jury which would justify with reason a conclusion that there was at least some employer negligence involved in the accident, and thus defendant was not entitled to a directed verdict or judgment N.O.V.

The defendant presents several challenges to the trial court's actions in admitting and excluding evidence. It argues that it was error: (1) to allow plaintiff to testify as to how the accident might have been avoided, (2) to refuse to allow proof that the line-up procedure employed was an accepted practice in the railway industry, and (3) to admit evidence of railway disciplinary proceedings. Defendant also claims prejudice in an instruction and in argument of plaintiff's counsel.

The trial court allowed Panger to testify as to how the accident might have been avoided. Defendant objected, claiming that it was an "expert" opinion and that Panger lacked the requisite qualifications. Although the decision as to the admission and exclusion of testimony generally lies within the discretion of the trial court, Skogen v. Dow Chemical Co., 375 F.2d 692, 704 (8th Cir.1967); Cotton v. United States, 361 F.2d 673, 676 (8th Cir. 1966), there should be basic guidelines applicable to opinion and conclusionary type evidence, such as that admitted here. What should have been done to avoid the type of accident in question? We do not think, nor did the District Court, that Panger's testimony was subject to the qualifications placed upon expert testimony. He definitely was not proposed as an expert in this field. The trial court, upon timely objection, merely ruled that he was a competent witness. Being a lay witness, he could not give an expert opinion but he should be permitted to give his opinion, for whatever weight the jury may care to give it, based upon his own personal knowledge of the facts, so long as those facts appear in the record. See, Boehm v. Fox, 473 F.2d 445, 448 (10th Cir. 1973); Gray v. Shell Oil Co., 469 F.2d 742, 750 (9th Cir. 1972).

The Opinion Rule has been a source of confusion in the law of evidence, one which conveniently at times has been resolved by merely saying that the admission of opinion testimony is a matter within the trial court's discretion. The Advisory Committee's Note to the Proposed Federal Rules of Evidence, Rule 701,² states that "necessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration." 51 F.R.D. 315, 402 (1971). Wigmore has called for its total abolition, reasoning:

The Opinion rule day by day exhibits its unpractical subtlety and its useless refinement of logic. Under this rule we accomplish little by enforcing it, and we should do no harm if we dispensed with it. * * * We should do no harm, because, even when the final opinion or inference is admitted, the inference amounts in force usually to nothing unless it appears to be solidly based on satisfactory data, the existence and quality of which we can always bring out, if desirable, on cross-examination.

VII Wigmore, Evidence, § 1929 (3d ed. 1940).

It is unnecessary to adopt Wigmore's position in upholding the action of the trial court in this case. An employee injured in an industrial accident is not the ordinary lay witness having no greater experience with the methods of operation in an industry than the average juror. In the performance of his duties he will become more intimately acquainted with the methods of operation of the business than the average juror. His opinion as to how the accident...