*Senior District Judge of the Northern District of

California sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 90-4909

 

SHAWNYA JONES,

Plaintiff-Appellant,

versus

SOUTHERN PACIFIC RAILROAD,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Eastern District of Texas

 

 ( May 27, 1992)

Before JOLLY and HIGGINBOTHAM, Circuit Judges, and WILLIAMS,

District Judge.*

HIGGINBOTHAM, Circuit Judge:

Shawnya Jones appeals a jury verdict in favor of Southern

Pacific Railroad in this diversity action. She argues that the

district court erred in excluding evidence and in failing to

provide her with a written copy of the jury instructions. We

affirm.

I.

One evening in March of 1988, a train collided with a pick up

truck at a railroad crossing in Mount Pleasant, Texas. The driver

of the truck, Sammy Eason, was killed. Eason's girlfriend Shawnya
2

Jones was thrown free of the truck and suffered a concussion,

bruises and contusions, and a broken toe. Jones sued Southern

Pacific Railroad for damages, alleging that it was negligent both

in the maintenance of the railway crossing gate and in the conduct

of the train. She contended that the crossing gate was not down

when they approached the tracks and that the train was going too

fast, failed to brake properly, and neglected to blow its whistle.

She sought damages for her injuries and for mental and physical

pain and suffering.

 At trial, Southern Pacific introduced testimony of two

witnesses indicating that the crossing gate was down when they

arrived at the scene of the accident, and that its lights were

blinking and its bells were ringing. It also introduced the

testimony of the train's engineer, Holiday H. Haley, that he was

going 35 miles an hour at the time of the wreck--the speed limit on

this stretch of track--and that he blew the train's whistle as he

proceeded through the town. He saw the pick up truck go around the

crossing gate, and he immediately put on his brakes when he saw

that the train was going to collide with the truck. A signal

maintainer employed by Southern Pacific testified that he checked

the gate the morning after the accident and found it to be in good

working condition. He had also checked the gate eight days before

and had found it in good working condition. Jones herself conceded

that she observed blinking lights and heard bells ringing as they

approached the railroad crossing. She testified, however, that the

crossing gate was not down at the time of the accident and that
3

they did not go around it. She also said that she did not hear the

train blow its whistle. Another witness also testified that the

crossing gate did not come down until after the accident took

place.

 Jones sought to introduce evidence at trial that Haley had

been ticketed in the past for speeding and improper use of brakes.

Her counsel asked Haley whether he had ever been ticketed for these

offenses, and he said no. As this line of questioning continued,

defense counsel objected. The district court sustained the

objection, found these questions irrelevant to the merits of the

case, and instructed counsel to move on. Later, plaintiff's

counsel made a formal request to introduce Haley's employment

record and cross examine him about it, and the court denied this

request, standing by its earlier ruling. The court thus excluded

evidence in Haley's personnel file that indicated that he had been

cited, although perhaps not formally ticketed, for various safety

infractions in the course of his career, including speeding and

failure to brake properly.

At the close of the evidence, the district court told the

parties that it would have a charge conference in which it would

review the jury instructions. The court explained the issues and

contents of the instructions to be given and informed the parties

that its intention was to follow the instructions presented by

Jones, with a few modifications. Jones requested, but was denied,

a written copy of the instructions. The parties delivered their

closing arguments, and the court then instructed the jury on the
4

issues before them. The jury returned a verdict in favor of

Southern Pacific. Jones appeals.

II.

Jones argues that the district court erred in excluding

evidence of Haley's prior safety infractions. We disagree. Rule

404(b) of the Federal Rules of Evidence says that "[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity

therewith." The reason for the rule is that such character

evidence is of slight probative value and tends to distract the

trier of fact from the main question of what actually happened on

a particular occasion. Reyes v. Missouri Pacific Railroad Co., 589

F.2d 791, 793 & n.6 (5th Cir. 1979). As the district court

recognized, Haley's prior safety infractions had little to do with

what actually happened on the day of the wreck. Such evidence was

not admissible to show that Haley was negligent in conducting the

train. See Moorhead v. Mitsubishi Aircraft Int'l, Inc., 828 F.2d

278, 287 (5th Cir. 1987) (pilot's training records not admissible

to show that he was negligent in crashing plane); American

Airlines, Inc. v. United States, 418 F.2d 180, 197 (5th Cir. 1969)

("[E]vidence of a similar act of negligence is not admissible to

prove negligence in the performance of the same act later.").

Jones urges that the evidence was admissible under Rule 406 to

show that Haley had a habit of operating trains negligently. Habit

evidence is superior to character evidence because the uniformity

of one's response to habit is far greater than the consistency with
5

which one's conduct conforms to character. Reyes, 589 F.2d at 794.

Evidence of habit is not lightly established, however. To offer

evidence of a habit, a party must at least demonstrate a "regular

practice of meeting a particular kind of situation with a specific

type of conduct." Id. In Reyes, we held that four prior

convictions for public intoxication spanning a three and one-half

year period were of insufficient regularity to rise to the level of

habit evidence. Haley was cited for nine violations in the course

of a twenty-nine year career. These infractions were varied:

speeding, failure to make a full service brake application after

stopping, failure to properly identify himself on the radio,

failure to display headlights, and the like. Several such

incidents over the course of a long career are not much evidence

that Haley was generally a careless engineer. They can hardly be

characterized as a habit. 

Alternatively, Jones contends that evidence of Haley's safety

infractions was admissible to impeach his testimony that he had not

been ticketed for speeding or improper braking. Litigants are of

course entitled to introduce extrinsic evidence to contradict a

witness' testimony on matters that are material to the merits of

the case. See, e.g., United States v. Blake, 941 F.2d 334, 338-39

(5th Cir. 1991); Carson v. Polley, 689 F.2d 562, 574 (5th Cir.

1982). There is no right to impeach a witness with respect to

collateral or irrelevant matters, however. United States v.

Hawkins, 661 F.2d 436, 444 (5th Cir. 1981); Globe Life and Accident

Insurance Co. v. Still, 376 F.2d 611, 614 (5th Cir. 1967). "Not
6

only may the interjection of extraneous issues confuse the jury,

but if the error concerns events that have moral implications, the

contradiction may prejudice a jury into finding against the

witness' side." See J. Weinstein & M. Berger, Weinstein's Evidence

§ 607[05] (1991).

Of course, if the opposing party places a matter at issue on

direct examination, fairness mandates that the other party can

offer contradictory evidence even if the matter is collateral.

See, e.g., Moorhead, 828 F.2d at 287 (evidence of pilot's low

ratings in the past would be admissible to rebut evidence of good

record as a pilot offered in his defense); Croce v. Bromley Corp.,

623 F.2d 1084, 1092 & n.24 (5th Cir. 1980) (because defendants

placed the reputation of the pilot at issue, plaintiffs were

allowed to offer contradictory evidence on his prior record). But

a party cannot delve into collateral matters on its own initiative

and then claim a right to impeach that testimony with contradictory

evidence. This would be "'a mere subterfuge to get before the jury

evidence not otherwise admissible.'" Taylor v. National Railroad

Passenger Corp., 920 F.2d 1372, 1376 (7th Cir. 1990) (quoting

United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984)). 

Haley's prior safety infractions, nearly all of which occurred

several years before the accident took place, were collateral to

the issues involved in this case. They were not admissible to show

that Haley was negligent on the day of the accident, or that he had

a habit of conducting trains negligently. On this record, they

could not have been introduced into evidence for any purpose other
 

1Jones did not argue that Southern Pacific was negligent in

allowing Haley to continue to serve as an engineer. See In Re

Air Crash in Bali, Indonesia, 684 F.2d 1301, 1315 (9th Cir. 1982)

(finding pilot's training records admissible when plaintiff

alleged negligent entrustment).

7

than contradiction. See Taylor, 920 F.2d at 1375.1 Southern

Pacific did not elicit testimony or introduce extrinsic evidence

indicating that Haley had a good safety record as an engineer.

Indeed, Jones sought to introduce Haley's safety infractions on

direct examination, before Southern Pacific had put on any evidence

at all regarding Haley. Under these circumstances, Jones was not

entitled to impeach Haley's testimony with evidence of his past

safety infractions. The district court properly excluded this

evidence. 

III.

Jones also argues that the district court violated Federal

Rule of Civil Procedure 51 by failing to give her a written copy of

the jury instructions in advance so that she could prepare her

closing argument and make objections. This rule says that

[a]t the close of the evidence or at such earlier time

during the trial as the court reasonably directs, any

party may file written requests that the court instruct

the jury on the law as set forth in the requests. The

court shall inform counsel of its proposed action upon

the requests prior to their arguments to the jury. The

court, at its election, may instruct the jury before or

after argument, or both. No party may assign as error

the giving or the failure to give an instruction unless

that party objects thereto before the jury retires to

consider its verdict, stating distinctly the matter

objected to and the grounds of the objection.

Opportunity shall be given to make the objection out of

the hearing of the jury. 
8

The purpose of this rule is to permit counsel to argue effectively

on the evidence and to know in advance the guiding principles under

which closing argument should be made. Ebanks v. Southern Railroad

Co., 640 F.2d 675 (5th Cir. 1981). It does not require that the

court inform the parties of the precise jury instructions in

advance, nor that it provide counsel with an advance copy of the

instructions. See Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19,

22-23 (3d Cir. 1984); Beimert v. Burlington Northern, Inc., 726

F.2d 412, 414 (8th Cir. 1984). It is enough that counsel be

apprised of the substance of the instructions so that they can make

effective closing arguments and tender any objection.

There is ample evidence that Jones was adequately informed of

the jury instructions before closing argument. Counsel referred to

the charge at length in closing and advised the jurors as to how

they should consider the legal issues. Jones argues that she was

unaware that the court would tell the jury that Eason was

contributorily negligent as a matter of law. But the record

reflects that the district court told counsel that it considered

Eason's negligence beyond dispute, but that it would submit to the

jury the issue of whether his negligence was the sole cause of the

accident. In any event, Jones has failed to show material

prejudice from any error. If it appears that a party suffered no

harm from a technical violation of Rule 51, we will not reverse.

Kestenbaum v. Falstaff Brewing Co., 575 F.2d 564, 574-75 (5th Cir.

1978); Siddiqui v. Leak, 880 F.2d 904, 911 (7th Cir. 1989).

AFFIRMED.