Sanchez v. Denver & Rio Grande Western R. Co., No. 74-1847
| Decision Date | 22 July 1976 |
| Docket Number | No. 74-1847 |
| Citation | 538 F.2d 304 |
| Parties | Joseph B. SANCHEZ, Plaintiff-Appellant, v. The DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John A. Criswell and John N. McNamara, Jr., Criswell, Patterson & Ballantine, Englewood, Colo. (Morrisard & Rossi, Aurora, Colo., with him on the brief), for plaintiff-appellant.
Charles W. Johnson, Denver, Colo., for defendant-appellee.
Before LEWIS, Chief Judge and BREITENSTEIN and McWILLIAMS, Circuit judges.
This is an action brought by plaintiff under the Federal Employer's Liability Act against the defendant railroad for personal injuries sustained by him during the course of his employment. The accident occurred when a 1000-pound door being removed from the interior of a railroad boxcar by Sanchez and two other employees fell on Sanchez. The case was presented to a jury and resulted in a judgment favoring plaintiff in the amount of.$93,750 reflecting a jury assessment of plaintiff's total damage at $125,000 reduced by a finding that plaintiff was comparatively negligent to the extent of 25 percent. Plaintiff appeals, alleging two prejudicial rulings by the trial court affecting the element of damages. Each such ruling was made early in the proceedings in anticipation of later evidentiary problems and was inflexibly adhered to during the course of the trial.
The first ruling subject to appellate complaint pertains to expert testimony regarding the present worth of Sanchez' loss of anticipated earnings during his work life. The trial court indicated that plaintiff's expert economist must either consider the impact of federal and state income taxes on net loss of earnings in his direct testimony or be prepared to consider such impact on cross-examination. Plaintiff's expert witness accordingly testified on direct examination that the present worth of plaintiff's loss of earnings was $400,000 and when reduced by probable tax impact was $320,000. This testimony was the only evidence probing this aspect of the case.
In the present posture of the case the defendant does not complain of the many assumptions made by the expert witness in arriving at his conclusions and the plaintiff cannot so complain except as to the consideration of tax impact. The many complexities noted by Judge Friendly's opinion in McWeeney v. New York, N.H. & H.R.R., 2 Cir., 282 F.2d 34, cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93, and further complicated and confounded by a multitude of subsequent cases within the circuits, although argued and presented to us in briefs, are not here pertinent. The single issue is whether the court erred in insisting that the tax impact be considered by the expert, not the broad question of the acceptability of the expert's total approach.
The trial court premised its ruling and its firmness, and properly so, on United States v. Sommers, 10 Cir., 351 F.2d 354, in which this court approved consideration of future tax impact in a wrongful death case stating:
Undoubtedly situations may arise in which the failure to take into account income tax liability would produce an unconscionable result, and conversely a similar result could be obtained if too great a deduction were applied. When dealing with such an imprecise and speculative subject, the best that can be hoped for is reasonableness. It is a determination best left to the exercise of sound discretion of the trial Judge, whether with or without a jury.
Id. at 360. Sommers and the case at bar have several parallels for the facts in both cases clearly indicate a probable tax impact but are highly uncertain as to the amount of such impact. This uncertainty is compounded in the present case since plaintiff was 19, unmarried, and...
To continue reading
Request your trial
-
Medite of New Mexico, Inc. v. N.L.R.B., 94-9575
...of accuracy and fairness.' " Bannister v. Town of Noble, 812 F.2d 1265, 1269 (10th Cir.1987) (quoting Sanchez v. Denver & Rio Grande W R.R. Co., 538 F.2d 304, 306 n. 1 (10th Cir.1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977)). Medite does not dispute the Board's fin......
-
Petty v. Ideco, Div. of Dresser Industries, Inc.
...was admissible to show physical possibility of decedent's car being diverted onto railroad track); Sanchez v. Denver & Rio Grande Western Railroad Co., 538 F.2d 304, 305-06 (10th Cir.1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977) (motion picture admissible to depict......
-
Harris v. Poppell
...Co., 16 F.3d 1083, 1088 (10th Cir.1994) (quoting 2 MCCORMICK ON EVIDENCE, § 19 (4th ed.1992)); see also Sanchez v. Denver and Rio Grande W. R.Co., 538 F.2d 304, 306 n. 1 (10th Cir.1976) (instructing trial courts to "scrutinize the foundation with great care as to detail" when admitting moti......
-
Young v. Illinois Cent. Gulf R. Co.
...was properly authenticated and should have been admitted for the purpose for which it was offered. See Sanchez v. Denver and Rio Grande Western Railroad, 538 F.2d 304 (10th Cir. 1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 The trial court also excluded nighttime photogra......
-
Table of Cases
...Sanchez v. City of Santa Ana , 915 F.2d 424 (9th Cir. 1990), cert. denied, 502 U.S. 815 (1991), §2:30 Sanchez v. Denver & R.G.W.R.R. Co. , 538 F.2d 304 (10th Cir. 1976), §9:35 Sanders v. Union Pacific R.R., 154 F.3d 1307 (9th Cir. 1999), rehearing en banc granted and opinion withdrawn, 179 ......
-
Authentication
...steering defects held inadmissible for lack of similarity to accident situation. Sanchez v. Denver & Rio Grand Western Railroad , 538 F.2d 304 (10th Cir. 1976), cert. denied , 429 U.S. 1042 (1977). The court must scrutinize motion pictures or videotapes which show a reenactment of human con......
-
Authentication
...steering defects held inadmissible for lack of similarity to accident situation. Sanchez v. Denver & Rio Grand Western Railroad , 538 F.2d 304 (10th Cir. 1976), cert. denied , 429 U.S. 1042 (1977). The court must scrutinize motion pictures or videotapes which show a reenactment of human con......
-
Real & Demonstrative Evidence
...child molestation prosecution solely based on the mother’s testimonial identification of the child. Sanchez v. Denver & R.G.W.R.R. Co. , 538 F.2d 304 (10th Cir. 1976), cert. denied , 429 U.S. 1042 (1977). A motion picture reenactment was held admissible as demonstrative evidence . The court......