Zens v. Chicago, Milwaukee, St. Paul and Pacific R. Co., 17349

CourtSupreme Court of South Dakota
Citation479 N.W.2d 155
Docket NumberNo. 17349,17349
PartiesJames R. ZENS and Darlene K. Zens, Plaintiffs and Appellants, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, and Aberdeen Township, Defendants/Appellees & Third-Party Plaintiffs, v. MAJESTIC CONTRACTORS LTD., formerly Majestic Wiley Contractors, Ltd., a corporation, Third-Party Defendants. . Considered on Briefs
Decision Date09 September 1991

James M. Cremer, Bantz, Gosch, Cremer, Peterson & Oliver, Aberdeen, for plaintiffs and appellants.

Chester A. Groseclose, Jr., Richardson, Groseclose, Kornmann & Wyly, Aberdeen, for defendant and appellee, Chicago, Milwaukee, St. Paul and Pacific R. Co.

Jeffrey T. Sveen, Siegel, Barnett & Schutz, Aberdeen, for defendant and appellee Aberdeen Tp.

WUEST, Justice.

This is an appeal by plaintiffs, a husband and wife (hereinafter Zenses) from a jury verdict and judgment in favor of defendants, Chicago, Milwaukee, St. Paul & Pacific Railroad and Aberdeen Township (hereinafter Railroad & Township) in a personal injury action. This is the second appeal of this proceeding. The first appeal, reversing a summary judgment in favor of the defendants, remanded the matter for a jury trial. Zens v. Chicago, Milwaukee, St. Paul & Pac. R., 386 N.W.2d 475 (S.D.1986) (Zens I ). We affirm the trial court.

In the summer of 1981, Mr. Zens was employed by Majestic Contractors, Ltd. (Majestic). On August 26, 1981, Zens was a passenger in a bus operated by Majestic, driven by James Lancaster (Lancaster) another Majestic employee. As the bus drove along a gravel township road (Country Club Road), one tire left the roadway. The cause of this was disputed at trial. 1 In any event, after leaving the roadway, Lancaster testified that he was unable to steer back onto the roadway. The bus then partially overturned in the ditch. As a result, Zens was injured.

The ditch lies between Country Club Road and Railroad's tracks. Originally, the ditch was eighteen to twenty feet further away from the roadway and was on railroad property. In 1973, Railroad, with Township's knowledge, moved the ditch immediately adjacent to the southern border of Country Club Road. Railroad took this action to facilitate the addition of a second set of tracks. Railroad's plans indicated the slope of the new ditch would be at a 2:1 ratio, 2 steeper than it was before. Testimony at trial established that, in fact, the slope varied in different locations. Township erected caution signs along the roadway to call attention to the ditch.

By 1978, the ditch had become partially filled with silt. Township hired a contractor, Marvin Lout (Lout), to retrench the ditch. Lout testified that he did not intentionally alter the contours of the ditch during the retrenching operation, but was unable to testify whether the bottom of the ditch or the contours of the slope may have been altered. We will develop the facts further as we discuss the issues raised.

The jury returned a verdict for both defendants. Zenses moved for a new trial. The court denied that motion. Zenses appeal raising three issues. We will discuss the three issues seriatim.

I. Whether the trial court committed reversible error in admitting 1984 A.A.S.H.T.O. revised guidelines published three years after the accident occurred.

II. Whether the trial court erred in restricting Zenses from introducing evidence concerning Township's ability to condemn railroad property to insure construction of a ditch consistent with A.A.S.H.T.O. standards.

III. Whether the jury's verdict was supported by sufficient evidence.


Road building standards used in South Dakota for the construction of local and township roads are promulgated by the American Association of State Highway Transportation Officials (A.A.S.H.T.O.). A.A.S.H.T.O. formulates guidelines after national meetings, involving engineers from each state, where policies and recommendations are formulated. In 1970, A.A.S.H.T.O. recommended ditches adjacent to local township roads be constructed with in-slopes of "no greater steepness than 4:1." 3 In 1982, the South Dakota Department of Transportation (D.O.T.) published its own Road Design Manual which adopted the 4:1 slope standard. At that time, the A.A.S.H.T.O. guidelines were in the process of being revised, and in 1984, A.A.S.H.T.O. changed its recommendation for ditch slopes stating 2:1 in-slopes were acceptable for local roads with a relatively low volume of traffic. This change was not adopted by D.O.T. In 1989, the A.A.S.H.T.O. guidelines were amended once again--reinstating less steep in-slope recommendations.

The 1984 A.A.S.H.T.O. guidelines were admitted over objection during cross-examination of Zenses' expert witness, Clint Gregory. Gregory had previously testified regarding the 2:1 in-slope recommendations adopted in 1970. The statute that permits the introduction of such guidelines is SDCL 19-16-22 (1987) (Fed.R.Evid. 803(18)):

To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice are not excluded by § 19-16-4, even though the declarant is available as a witness. If admitted, the statements may be read into evidence but may not be received as exhibits. 4

Prior to admitting the 1984 revisions, the following colloquy took place during Railroad's offer of proof:

Q. "You've been carrying that manual around since you've been here in Aberdeen prepared to testify on Mr. Cremer's [Zenses' attorney] behalf, I'm talking about the '84 manual?"

A. "Yes. That's right."

Q. "And apparently you brought it with you because you thought it had some application to this case?"

A. "It's part of the material I was using to prepare for this case, yes."

Gregory admitted he relied on the 1984 manual in formulating his opinion the Country Club Road was unsafe. In addition, Gregory recognized the 1984 manual was reliable and authoritative. Thus, the elements of admission required by SDCL 19-16-22 were satisfied. 5

However, Zenses contend the 1984 guidelines were irrelevant since the ditch was constructed in 1973 and the accident occurred in 1981.

The extent to which a witness may be cross-examined as to facts which are otherwise immaterial for the purpose of testing his reliability ... is ordinarily within the discretion of the trial court and much latitude is to be allowed in this line, and unless an abuse of discretion is clearly shown either in allowing or restricting such cross-examination, this court will not interfere with the ruling of the court below.

Plank v. Heirigs, 83 S.D. 173, 179, 156 N.W.2d 193, 197 (1968).

We recognize the general rule that guidelines adopted after the accident in question generally have no tendency to prove what the proper standard of care was when the accident occurred. 6 Nonetheless, "[t]here is general agreement that where expert witnesses have specifically relied on a treatise or text as supporting their opinions given on direct examination, they may be cross-examined from the treatise for the purpose of showing that it does not in fact support their position." 31A Am.Jur.2d Expert and Opinion Evidence § 125, at 132 (1989). See also Hercules Powder Co. v. DiSabatino, 55 Del. 516, 188 A.2d 529, 533 (1963). Thus, we cannot say admitting the 1984 revised standards on cross-examination of Zenses' expert was a clear abuse of discretion.

We do point out, however, since such evidence is admitted pursuant to the learned treatise exception to the rule against hearsay, it is improper to admit such evidence as an exhibit to accompany the jury in its deliberations. SDCL 19-16-22. Accord Garbincius v. Boston Edison Co., 621 F.2d 1171, 1175 (1st Cir.1980); Gordy v. City of Canton, Mississippi, 543 F.2d 558, 564 (5th Cir.1976). The proper method is to read the information to the jury. The rationale for this rule is to avoid the danger that the jury might read admitted materials without an expert's guidance thereby becoming confused by technical language. United States v. Mangan, 575 F.2d 32, 48 n. 19 (2nd Cir.), cert. denied, 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2d 324 (1978). The exhibits admitted here were short excerpts from the 1984 manual, were relatively straightforward and only the portions discussed by Gregory (three pages) were submitted to the jury.

To succeed on appeal, "[n]ot only must error be demonstrated, but it must also be shown to be prejudicial error." Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976). Prejudicial error is "that which in all probability must have produced some effect upon the final result and affected rights of the party assigning it." K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983). It is error "without which the jury would have probably returned a different verdict." Shaull v. Hart, 327 N.W.2d 50, 53 (S.D.1982) (citing Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114 (S.D.1977)). On this record, the admission of excerpts from the 1984 manual as exhibits was not prejudicial error. See Garbincius, 621 F.2d at 1175; Mangan, 575 F.2d at 48; Gordy, 543 F.2d at 564.


The trial court, via a pretrial motion in limine, prohibited Zenses from introducing evidence concerning Township's ability to condemn railroad property to insure adequate space to construct a ditch with a slope no steeper than 4:1. Zenses contend the trial court erred. The only authority Zenses cite are two cases, which state that an incorporated town may condemn railroad property: Town of Emery v. Chicago, M. & St. P. Ry. Co., 35 S.D. 583, 153 N.W. 655 (1915); Town of Andover v. Cooper, 37 S.D. 258, 157 N.W. 1053 (1916) (dicta). These cases have nothing to do with defective highway conditions or admission...

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