Shell v. Missouri Pacific R. Co.

• Decision Date: 04 August 1982
• Docket Number: No. 81-2062,81-2062
• Citation: 684 F.2d 537
• Parties: 10 Fed. R. Evid. Serv. 1373 Linda SHELL, Individually and as Next Friend of Lezlie Shell, Her Minor Daughter, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, v. Robert M. SHELL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 537

684 F.2d 537

10 Fed. R. Evid. Serv. 1373

Linda SHELL, Individually and as Next Friend of Lezlie

Shell, Her Minor Daughter, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee, v. Robert M. SHELL, Appellant.

No. 81-2062.

United States Court of Appeals,

Eighth Circuit.

Submitted March 10, 1982.

Decided July 2, 1982.

Rehearing and Rehearing En Banc Denied Aug. 4, 1982.

Wilson & Engstrom, Little Rock, Ark., Holloway & Bridewell, Lake Village, Ark., Laser, Sharp, Haley, Young & Huckabay, Little Rock, Ark., for appellants.

Robert V. Light, Little Rock, Ark., for appellee; Herschel H. Friday, Barry E. Coplin, Little Rock, Ark., of counsel.

Before ROSS, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Linda Shell, individually and as next friend of Lezlie Shell, her minor daughter, ¹ appeals from a final judgment entered in the District Court ² for the Eastern District of Arkansas upon a jury verdict in favor of the Missouri Pacific Railroad Co. (MoPac) following a collision between a MoPac freight train and a car driven by Robert Shell in which Lezlie Shell was a passenger. For reversal Lezlie Shell argues that (1) there was insufficient evidence to support the verdict; (2) the district court erroneously admitted into evidence testimony as to the Congressional intent with regard to safety duties at grade crossings; and (3) comments made by MoPac's counsel during summation prejudiced a fair trial. Robert Shell, third party defendant, joins in this appeal and argues that the district court erred in failing to grant his motion for a directed verdict on MoPac's third party complaint against him. For the reasons discussed below, we affirm the district court.

The collision occurred at approximately 3:30 p. m. on September 23, 1979, at a grade crossing located in Portland, Arkansas. The crossing runs in an east-west direction across three parallel tracks which run in a north-south direction. On the east side of the crossing there is an intersection of streets; one street runs parallel to the tracks and the other street runs through the crossing. The crossing was equipped with an automatic flasher light warning installation with eight red lights mounted on standards on each side of the tracks as well as stop signs. In addition, there was a warning bell mounted on top of the installation located on the west side of the crossing.

Robert Shell, the driver of the car, and Lezlie Shell, his minor daughter ³ and only passenger, approached the crossing from the north on the street running parallel and east of the tracks. Shell made a right angle turn at the intersection to complete the crossing. It is undisputed that Shell stopped at the stop sign before entering the crossing and then proceeded over two tracks before reaching the third track on which the train was approaching from the north. The train collided with the right rear door of the car. Robert Shell received injuries from which he fully recovered but Lezlie Shell sustained serious and permanent injuries.

Lezlie Shell brought suit by her mother, as next friend, against MoPac alleging that the collision was proximately caused by the combined negligence of the railroad in failing to provide adequate safety devices to warn motorists of oncoming trains, obstructing motorists' views of train traffic by parking a rail tamping machine ⁴ on a side track near the crossing, and maintaining an abnormally dangerous crossing.

By way of answer MoPac filed a third party complaint alleging that the collision was proximately caused by Robert Shell's wanton and wilful negligence and seeking contribution in the event MoPac was found liable. The complaint was based on statements made by Robert Shell to four individuals who went to the scene to render aid immediately after the collision. The statements were to the effect that Robert Shell had seen the oncoming train but thought that he could "beat it" and that it was "a stupid trick that he had pulled, trying to get across the track." Robert Shell did not deny making the statements but testified that he did not remember making them and that he thought he had been unconscious from the time of the collision until he woke up in the hospital a week later. ⁵

At trial it was established that at the time of the collision the flasher lights had been working but that the warning bell had not. ⁶ It was also established that a tamper had been parked on a side track near the crossing but its location on the track was disputed. ⁷ It was further established that the train had been travelling within the speed limit and that the train crew had sounded the whistle at least once before entering the crossing.

At trial Lezlie Shell attempted to establish that the crossing was abnormally dangerous and should have been equipped with an automatic short-arm gate. In support of this theory she called Mike Selig, the official of the Arkansas Highway Department responsible for the railroad grade crossing safety activities of the Department. Selig testified that the Department had adopted a formula by which desirable protective devices for crossings were identified. It was developed at trial that application of the formula to this crossing produced a "hazard rating" of 14.8 which called for flashing lights and bell but did not necessarily require a short-arm gate. ⁸ Selig also testified about his participation as the Department representative on "diagnostic teams" organized as a part of the governmental scheme for administering federal appropriations for construction of warning devices at crossings, and explained the appropriation formula by which federal funds paid for ninety percent of the cost of constructing such warning installations, the local government agency paid the remaining ten percent and the railroad assumed the cost of perpetual maintenance.

Lezlie Shell then introduced two experts, Frank Fowler and John Baerwold, who testified that, in their opinion, the crossing at issue was abnormally dangerous. The experts based their conclusions on criteria published in various government documents including the Railroad-Highway Crossing Handbook (Handbook) which is published by the Department of Transportation and was referred to by the experts as the "Bible" for the railroad industry in this area. Fowler reviewed criteria from this publication and described the federal Department of Transportation's guidelines for gates at crossings. More than ten pages of the publication were introduced through the testimony of the two experts.

On cross-examination MoPac's attorney read an additional paragraph from the Handbook to Baerwold who testified that, "in a sense, he agreed with it." The paragraph stated in pertinent part: "At the state level there also has been significant changes in the old concept of total railroad responsibility. The present trend is toward public highway agency assumption of greater responsibility for improvement of grade crossings ...." Lezlie's counsel objected on the basis that the paragraph was "a statement intended to impress upon the jury that that is the law." The objection was overruled.

Subsequently, MoPac introduced its expert, Thomas Bryant, who testified that, in his opinion, the crossing at issue was not abnormally dangerous. MoPac's counsel read the same Handbook paragraph to Bryant who testified that he agreed with it. Bryant was then permitted to read the following sentence from the Regulations of the Federal Highway Administration published in the Federal Register, "(P)rojects for grade crossing improvements are deemed to be of no ascertainable benefit to the railroads and there shall be no required railroad share of the costs." Lezlie's counsel objected on the grounds of relevancy, but the objection was overruled. MoPac later argued in summation, without objection, that the governmental "input" in the decision as to appropriate grade crossing protection should be given some weight by the jury.

At the end of MoPac's evidence, Robert Shell made a motion for a directed verdict on MoPac's claim against him on the basis that there was no evidence of wilful and wanton conduct on his part. ⁹ The district court denied the motion on the basis that rulings for directed verdicts should be delayed until after the verdict. Therefore the court included among the seven interrogatories submitted to the jury one for a finding on the issue of Robert Shell's alleged wilful and wanton negligence. The court, however, expressed reservations as to whether the proof would support an affirmative finding. The jury did not reach this issue, however, because, in answering the first interrogatory, it found that MoPac was guilty of no negligence which was a proximate cause of the occurrence.

On appeal Lezlie Shell first argues that the evidence was insufficient to support the verdict. In support Lezlie reasons that any negligence on the part of MoPac would entitle her to be compensated for the measure of her damages because it is undisputed that she was not negligent and that, under Arkansas law, the alleged negligence of Robert Shell cannot be imputed to her. Lezlie asserts that the evidence establishes that MoPac was negligent in some degree and therefore she is entitled to recover as a matter of law.

Similarly, Robert Shell argues that the evidence was insufficient to submit the issue of his alleged wilful and wanton negligence to the jury. Shell reasons that even though the jury did not reach this issue, its presence clouded the central issue of whether MoPac was guilty of any degree of negligence to Lezlie.

We note that Lezlie Shell did not move for a directed verdict on her claim and that neither Robert nor Lezlie moved for judgment notwithstanding the verdict. See Fed.R.Civ.P. 50(b). Under such circumstances our review is strictly limited. See Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 157 (8th Cir. 1975), citing Johnson v. New York, New...