Rush v. Illinois Cent. R. Co.

• Decision Date: 04 March 2005
• Docket Number: No. 02-5118.,02-5118.
• Citation: 399 F.3d 705
• Parties: Annette RUSH, as natural mother of Johnathan Rush, a minor, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, aka Canadian National-Illinois Central Railroad, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

399 F.3d 705

Annette RUSH, as natural mother of Johnathan Rush, a minor, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, aka Canadian National-Illinois Central Railroad, Defendant-Appellee.

No. 02-5118.

United States Court of Appeals, Sixth Circuit.

Argued: March 17, 2004.

Decided and Filed: March 4, 2005.

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ARGUED: Daniel Alan Seward, Memphis, Tennessee, for Appellant. Harold W. McLeary, Jr., Smith, Sabbatini & McLeary, Memphis, Tennessee, for Appellee. ON BRIEF: Daniel Alan Seward, Memphis, Tennessee, for Appellant. Harold W. McLeary, Jr., W. Bradley Gilmer, Smith, Sabbatini & McLeary, Memphis, Tennessee, for Appellee.

Before: NORRIS and COLE, Circuit Judges; ECONOMUS, District Judge.^*

OPINION

ECONOMUS, District Judge.

I. OVERVIEW

This appeal arises from a diversity action brought by the plaintiff-appellant, Annette Rush, following her nine-year-old son's fall from a railcar owned and operated by the defendant-appellee, Illinois Central Railroad Company ("CN-IC"). The plaintiff-appellant challenges the district court's denial of her motion for new trial following a jury verdict awarded in favor of CN-IC. She advances four arguments on appeal: (1) the district court erroneously admitted into evidence at trial the prior statements of two witnesses and audio recordings of those statements; (2) the jury erred in not finding CN-IC liable under Tennessee's "Lookout Statute"; (3) the jury disregarded the trial court's instruction to presume the nine-years-old child incapable of negligence as required under Tennessee law; and (4) the district court erred in denying the motion for new trial because the verdict was against the clear weight of the evidence.

For the reasons that follow, we AFFIRM the judgment of the district court.

II. BACKGROUND

CN-IC's switching operation

CN-IC conducts a switching operation in Memphis, Tennessee. During the switching operation, CN-IC employees hook and unhook railcars (a process know as "coupling") to a locomotive engine. The locomotive engine then delivers the railcars to nearby destinations.

A three person crew performs the switching operation. An employee referred to as a "brakeman" physically couples and uncouples the railcars at each stopping point. The "locomotive engineer" operates the engine along the rail line. The "conductor" oversees the entire switching operation. All three CN-IC employees are responsible for the safety of the crew and passersby. See (Trial Transcript, Volume I at 102-04, 132-33, 152, 211-14, 221-22, 232); (Trial Transcript, Volume II at 17, 34-35, 54); (Trial Exhibits 3, 9).¹

Johnathan Rush's Fall and the CN-IC Investigation

Nine-years-old Johnathan Rush ("Rush") and several friends — Quan Reed ("Reed") (age 11), Doyle Lockett ("Lockett") (age 10), Darrell Moore ("D.Moore") (age 9), and Justin Moore ("Moore") (age 8),² — encountered the switching operation on November 10, 1996. While the subsequent events are in dispute, it is uncontroverted that Rush, D. Moore and Reed began playing near a CN-IC train. At some point during these activities, Rush fell under the train and sustained injuries that ultimately required a below-the-knee amputation of his left leg.

Within several hours of the accident, Tom Martin ("Martin"), a Risk Manager and Railroad Police Officer for CN-IC, interviewed Lockett, D. Moore and Moore as to the earlier day's events. Each interviewee purportedly informed Martin that Rush fell while attempting to jump onto a moving train. Martin audio-recorded these statements and later transcribed the interviews (hereinafter the "interview transcript"). See (Tr., Vol I. at 338); (Tr. Exs. 1 & 2).

The Underlying Action

Annette Rush, as the natural mother and next of kin of Johnathan Rush, filed a diversity action against CN-IC in the United States District Court for the Western District of Tennessee alleging common law negligence and violations of Tennessee's "Lookout Statute," TENN. CODE ANN. § 65-12-108. The matter proceeded to trial whereby the parties presented widely divergent accounts of the events giving rise to the accident. As the issues raised in this appeal turn on an examination of the conflicting evidence presented to the jury, we shall recount that evidence in detail.

The Plaintiff-Appellant's Witnesses

The plaintiff-appellant called Lockett as her first witness. Lockett testified on direct examination that he and a group of friends encountered an "abandoned," (Tr., Vol. I at 38), and "parked,"(Tr., Vol. I at 41), train while walking from the home of his grandfather. He further testified that Rush and two other young men climbed the side ladder of the train's railcar. See (Tr., Vol. I at 39). According to Lockett, the train began to move without warning and two of the young men jumped off of the railcar. See (Tr., Vol. I at 41-42). Rush, however, appeared too "scared to jump off," (Tr., Vol. I at 42), and soon fell from the ladder.

On cross-examination, the following colloquy occurred between counsel for CN-IC and Lockett:

Q. Do you remember after this accident that a police officer, a female police officer, Sergeant Halfacre, came to your home along with Mr. Martin over there?

A. Not that I recall.

Q. You don't recall that?

A. I recall a police officer bringing me home, not no woman though.

Q. Do you remember that Sergeant Halfacre and Mr. Martin talked to you with your aunt present?

A. No sir.

Q. Okay. Do you remember that you told, in the presence of your aunt, that you told Mr. Martin and Sergeant Halfacre of the Memphis Police Department that you were playing around the train yard when Johnathan got hurt, and that you saw Johnathan running alongside the train to get on, do you remember telling them that?

A. No, sir.

(Tr., Vol. I at 46-47.) Counsel for CN-IC immediately attempted to play the audio recording of Lockett's post-accident statement. The district judge, however, interrupted the cross-examination and instructed defense counsel to first confront Lockett with the interview transcript.³

Counsel for CN-IC handed the interview transcript to Lockett. After Lockett silently read the writing, counsel for CN-IC enquired, "Is that correct what you said on the afternoon of this accident, November the 10th of 1996, is that correct?" (Tr., Vol. I at 52.) Lockett responded, "Yes, sir." (Tr., Vol. I at 52.)

Lockett then read the transcript aloud whereby the jury heard his prior statement that "Johnathan [was] running alongside the train."⁴ (Tr., Vol. I at 52-53); (Tr. Ex. # 1). Lockett further testified, however, that Rush was not "running along side the train, the train wasn't moving." (Tr., Vol. I at 54.) Counsel for CN-IC re-read Lockett's prior statement from the interview transcript and enquired "Why did you tell Mr. Martin on the afternoon of the accident that Johnathan was trying to run alongside the train?" (Tr., Vol. I at 55.) Lockett responded, "I just misunderstood the question, I guess." (Tr., Vol. I at 55.)

On re-direct examination, counsel for the plaintiff-appellant queried whether Lockett observed Rush running alongside the train trying to jump on. See (Tr., Vol. I at 58). Lockett again responded in the negative and repeated his testimony that the train was stopped when Rush began playing on the railcar. See (Tr., Vol. I at 59).

The plaintiff-appellant called Moore as her next witness. Moore echoed Lockett's testimony that the train was "parked" and "stopped" when Rush began playing on the railcar. (Tr., Vol. I at 65-66.) Moore further testified that he never observed Rush running alongside the train. See (Tr., Vol. I at 70).

On cross-examination, Moore denied any memory of meeting with Martin and a Memphis Police Department Officer. See (Tr., Vol. I at 74). Counsel for CN-IC handed Moore the interview transcript; however, the writing did not refresh Moore's recollection of the post-accident interview. See (Tr., Vol. I at 75-76). Counsel for CN-IC did not pose any further questions to Moore.

The plaintiff-appellant successively called as witnesses each member of CN-IC switching crew. The locomotive engineer, William Knight ("Knight"), and the brakeman, Basil White ("White"), each testified that they did not observe any persons near the CN-IC railroad tracks on the date of Rush's accident.⁵ See (Tr., Vol. I at 134-148, 270). Knight additionally testified that it was his practice to sound the train's bells and horn prior to initiating any movement of engine; although, he did not recall his specific behavior on the date of Rush's fall. See (Tr., Vol. I at 147). The train's conductor, Christopher Giannini ("Giannini"), likewise testified that it was the switching crew's practice to sound the bells and horn before moving along the rail line. See (Tr., Vol. II at 44). Giannini could not remember, however, whether the bells and horn sounded prior to Rush's fall. See (Tr., Vol. II at 44). Giannini went on to testify that on the date of the accident he observed two males, between the ages of eight to eleven years old, standing approximately fifteen feet away from the moving locomotive engine. See (Tr., Vol. II at 38-45). Giannini expressed his belief that the young males "were standing at the side, far enough that they didn't pose any hazard to us." (Tr., Vol. II at 45.)

Jimmy Calvin Scott ("Scott"), testifying as an expert in the area of railroad operations and safety,⁶ opined that when Giannini observed two young males near the railroad tracks, the CN-IC switching crew should have stopped the train and attempted to remove the children from the tracks. See (Tr., Vol. I at 386). Scott further opined that there lacked any evidence that the CN-IC switching crew sounded the bells or horn prior to Rush's accident.⁷ See (Tr., Vol. I at 387-88). Scott concluded that these omissions constituted violations of CN-IC's internal safety regulations. See (Tr., Vol. I at 384, 387-88).

The plaintiff-appellant...