# United States Court of Appeals

F OR T HE E IGHTH C IRCUIT

___________ No. 96-3934

___________ Scott Manatt, Sr., individually and as, * father of Scott Manatt, Jr., now * deceased, and separately in his * capacity as personal representative * of the estate of Scott Manatt, Jr., now * deceased; Sharon Manatt, individually * and as mother of Scott Manatt, Jr., now * deceased; Mitzi Manatt, individually * and as surviving sister of Scott Manatt, * Jr., now deceased; Yvette Manatt, * Appeal from the United State s individuallyand as surviving sister of * District Court for the Scott Manatt, Jr., now deceased, * Eastern District of Arkansas. * Appellants, * *
v. * * Union Pacific Railroad Company, a, * foreign corporation; National Railroad * Passenger Corporation, a corporation * created and doing business under the * Rail Passenger Service Act of 1970, * also known as Amtrak National * Railroad Passenger Corporation, * * Appellees. *

___________

## The H onorable Robert R. Beezer, United States Senior Circuit Judge for th e 1 

## Ninth Circuit, sitting by designation.
The Honorable James Moody, United States District Judge for the Easter n 2 

## District of Arkansas.

-2- Submitted: June 11, 1997 Filed: August 5, 199 7

___________ Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEEZER, Senior Circuit Judge. 1

___________
HENLEY, Senior Circuit Judge.

On Oct ober 5, 1993 at about 4:30 a.m., nineteen-year old Scot t Manatt, Jr. (Scott) was killed when he was hit by an Amtrak train while he

was on railroad tracks near a crossing in Corning Arkansas. His father, Scott Manatt, Sr., and other family members (collectively referred to as Manat ts) appeal from a judgment of the district court entered on a jur y 2 verdict in their wrongful death action in favor of Amtrak and Union Pacifi c Railroad Company (UP), the lessor of the railroad tracks. We affirm.

The evide nce viewed in a light most favorable to the jury's verdict reveals the following . Around 9:00 or 10:00 p.m. on the night before the accident, Scott and Angel Lane went to Mark Gearhart's house. According to Gearhart, Scott ha d been taking drugs and had been depressed for about two weeks and was "messed up pretty good" that evening. Nonetheless , Gearhart and his wife rode around town with Scott and Angel. During the evening, Scott drank two or three beers and took some pills. In the

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early morning hours, the car veered off the road and got stuck in a ditch about a mile from a rail crossing. The women we nt for help, but Scott and Mark dec ided to walk down the tracks to the crossing. As they walked , Scott talked about co mmitting suicide. Scott then sat on the side of the tracks and covered hi mself with a sheet. Gearhart saw a train coming and told Scott to get up. Gearhart walked off the t racks, but Scott continued sitting on the side of the tracks. As the train approached, the train's engineer, B. D. Wilder, saw what appeared to be a plastic or paper wrappin g
on the tracks, which was about ten to twenty feet south of the crossing. When Wilde r got closer, he saw a hand reach out from underneath th e wrapping and immediat ely put on the emergency brake, but it was too late. As Gearhart looked back, he saw the train hit Scott. An autopsy toxicolog y report indicated that Scott had taken Valium and methamphetamine, which, in the opinion of a toxicologist, would have impaired a person's ability to recognize and avoid danger. In suppor t of the wrongful death action, Manatt, Sr. testified that

a wee k after the accident, he went to the rail crossing and found a ga p between the crosstie and the rail. Because Scott's pant leg had a creosot e mark on it and his le g had been broken, Manatt believed that Scott's foot must have gotten caught in the gap, thus preventing escape from th e
onc oming train. Two other witnesses testified about the gap. Be n Williams , owner of the land at the crossing and a friend of the Manat t family, testified that Manatt, Sr. had taken him to the crossing several times and that his foot had gotten caught in a gap between the crosstie and the rail. Richard Emert, manager of a funeral home and deputy coroner , testified that in Oct ober or November of 1993 he went to the crossing and his foot also got cau ght in a gap. Because of the mark on the pants, the broken leg, and the l ocation of the body after the accident, Emert agreed with Manatt that Scott's foot must have gotten caught in the gap. O n cross-examination, Emert stated that except for a six-hour seminar, he had no education, trainin g or experience in accident reconstruction, that the state police had investigated the accident, that this was the first time he had investigated an accident scene in connect ion with a civil suit, and that he had not consulted any written material or physicians in arriving at his

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conclusion. Emert al so stated that he was unaware of the size or type of Scott's shoes, but was aware that both of Scott's shoes were on his feet after the accident and there was no trauma to the ankles. In addition, Dr

. Michael Lack, Scott's physician, testified that the toxicology repor t indicated that Scott had taken certain drugs, but believed that the drugs could have been prescription drugs, such as painor cold medications. Dr. Lack testified it was difficult to determine whether the drugs had impaire d Scott's mental status.

On appeal , the Manatts first argue that the district court erred in denying their motion to treat a request for admission as admitted because Amtrak filed its answer beyond the thirty days p rovided by Fed. R. Civ. P. 36(a). The request read as follows: "The Amtrak engineer saw Scott Manatt , Jr. with h is hands on the rail trying to extricate his foot from it s entrapped position with the rail immediately prior to impact." They are correct in asserting that Rule 36(a) provides that "each matter requested is deemed admitted un less the responding party serves a written answer or objection within 30 days." Gutting v. Falstaff Brewing Corp. , 710 F.2 d 1309, 1312 (8th Cir. 1983). However, "[b]ecause the district court has the power to allow a longer time, . . . the court, in its discretion, may permit th e filing of an answer that would be otherwise untimely." Id. Therefore, contrary to their argument, "the fail ure to respond in a timely fash ion does not require the court automatically to deem all matter s admitted." Id.

In reviewing for an abuse of discretion, we consider "the effec t upon the litigation and prejudice to the resisting party." Federal Deposi t Ins. Corp. v. Prusia , 18 F.3d 637, 640 (8th Cir. 1994) (internal quotation omitted). Here, the district court did not abuse its discretion. Refusin g the late answer wouldnot have "subserved the presentation of the merits" of Amtrak's defense. Cf. id. (amendment of admi ssion permitted "[b]ecause allowing the erroneous admission to stand might have barred [] claim"). In the circumstances of this case, "[t]he prospect of deeming [the ] controverted fact[] . . . as having been admitted seems . . . to b e anathema to the

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ascertainment of the truth." White Consol. Indus., Inc. v. Waterhouse , 15 8 F.R.D. 42 9, 433 (D. Minn. 1994). In addition, the Manatts have no t established prejudice, which in this context means " 'the difficulty a party m ay face in proving its case because of the sudden need to obtai n evidence.' " Prusia , 18 F.3d at 640 (quoting Fa lstaff , 710 F.2d at 1314). In fact, they do not even allege prejudice and "[t]he necessity of having to con vince the trier of fact of the truth of the matter erroneousl y admitted is not sufficient." Id.

The Manatts also argue that the dist rict court abused its discretion by allowing testimony concerning Scott's drug use and depression, assertin g that the evidence was inadmissible under Fed. R. Evid. 404(b). The rule provides that "[e]vidence of other crimes, wrongs or acts is not admissibl e to prove the character of a person in order to show action in conformity therewi th[,]" but "is admissible for other purposes, such as proof o f motiv e, opportunity, intent, preparation, plan, knowledge, identity, o r absence of mistake or accident." Although we believe that the evidenc e would have been admis sible under Rule 404(b), we agree with Amtrak and UP that the court did no t admit the evidence under Rule 404(b), but properly admitted it as releva nt evidence under Fed. R. Evid. 401 and 402. "[T]he

cause of the initial accident [wa]s directly in issue, and the extent of [Scott 's impairment] is evidence that clearly bears on the accident' s cause." Swajian v. General Motors Corp. , 916 F. 2d 31, 35 (1st Cir. 1990).

The Manatts go on to argue that eve n if the evidence was admissible under Rules 401, 402, or 404(b), the district court should have excluded it under Fed. R. Evid . 403, which provides that relevant evidence "may be excluded if its proba tive value is substantially outweighed by the danger of unfair prejudice." Their argument is without merit. Although th e
ev idence of Scott's drug use and suicidal thoughts "was no doub t preju dicial," it is well settled that "Rule 403 is concerned only wit h 'unfair prejudice,' t hat is, 'an undue tendency to suggest decision on an improper basis.' " U nited States v. Yellow , 18 F.3d 1438, 1442 (8th Cir. 1994) (quoting Rule 403, Adv. Comm. Note). In t his case, the evidence did not " 'divert the jury's attention from the

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material issues in the trial.' " Id. (quoting United States v. Fawbush , 900 F.2d 150, 152 (8th Cir. 1990)). Moreover, the district court wa s careful to confine the testimony to general questions concerning the two weeks preceding the accident. See id. Nor, as the Manatts argue, did the district court err in admitting the autopsy blood test results. See , e.g. , McVay v. State , 847 S.W.2d 28, 32 (Ark. 1993) ("a blood test result [i]s not to be considered a confidential communication").

In addition, the district court did not err in refusing the Manatts' proffered jury instructions. The court correctly refused to submit a n instruc tion for an abnormally dangerous crossing in that there was n o evidence that the cro ssing was "dangerous because of some physical hazard

or vi sual obstruction" or that the "volume of both train and vehicula r traffic render[ed] the [crossing] abnormally dan gerous." Missouri Pacific R.R. Co. v. Biddle , 732 S.W.2d 473, 475 (Ark.), modified on other grounds , 737 S.W.2d 625 (1987); see also Shibley v. St. Louis-San Francisco Ry. , 53 3 F.2d 1057, 1063-64 (8th Cir. 1976). The district court also properl y ref used to instruct the jury that Scott "had a right to be on a publi c crossin g . . . whatever his purpose." As the court noted, the propose d ins truction in effect required the jury to find that Scott was on th e crossing, but the evidence was in dispute as to whether he was on th e crossing or ten to twenty feet south of the crossing.

The Manatts also argue that the district court erred in denying their motion for a new trial, asserting primarily that the verdict was against the weight of the evidence. "The authority to grant or deny a new trial is a matt er within the district court's discretion and is not to b e reversed absent a cle ar abuse of discretion." Wood v. Minnesota Mining & Mfg. Co. , 112 F.3d 30 6, 311 (8th Cir. 1997). "Where, as here, the 'basis of th e motion for a new trial is that the jury's verdict is against th e wei ght of the evidence, the district court's denial of the motion i s virtual lyunassailable on appeal.' " Id. (quoting Keenan v. Compute r Assoc. Int'l, Inc. , 13 F.3d 1266, 1269 (8th Cir. 1994)). Although th e Manatts contend that Gearhart was not a credible witness, it was up to the jury to assess his credibility. The jury was fully aware that he had

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taken drugs the night of the accident and had pleaded no contest to robbin g Scott's body after the accident. Indeed, Amtrak and UP told the jury in opening statement tha t Gearhart was a "distasteful individual." However, Gearhar t's "distastefulness" did not make him unworthy of belief. A s Amtrak and UP note, among other things, Gearhart's testimony concernin g Scott's drug use was corroborated by the toxicology report, and hi s tes timonythat Scott was sitting on the tracks covered by a sheet wa s corroborated by Wilder's testimony.

The Manatts raise various other arguments. We have reviewed th em and they are without merit.

Accordingly, we affirm the district court's judgment.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.