No. 95-3116

 

Bobby R. Butler, *

*

 Appellant, * Appeal from the United States

* District Court for the Eastern

 v. * District of Arkansas.

 *

Darce French, d/b/a *

Darce French Trucking Company, *

and Don C. French, *

*

 Appellees. *

 

Submitted: March 15, 1996

Filed: April 25, 1996

 

Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Don French was driving a tractor-trailer truck when it collided with

the train in which Bobby Butler was working. Alleging Mr. French's

negligence and personal injury to himself, Mr. Butler sued the railroad,

Mr. French, and the trucking company for which Mr. French worked.

Mr. Butler settled with the railroad, and, after a three-day trial, a jury

found Mr. French and the trucking company not liable to Mr. Butler. The

trial court denied Mr. Butler's subsequent motion for judgment as a matter

of law or, in the alternative, for a new trial.

Mr. Butler appeals, arguing that the evidence was insufficient to

sustain the verdict; in the alternative, that the trial court improperly

denied him a new trial; that the trial court abused its
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discretion in admitting evidence regarding Mr. Butler's past problems with

alcohol abuse; and that the trial court wrongly precluded him from

introducing into evidence some photographs taken of the train and the truck

at the site after the accident. We affirm the judgment of the trial court.

I.

Mr. Butler first argues that the trial court should have granted his

motion for judgment as a matter of law. See Fed. R. Civ. P. 50(a)(1), Fed.

R. Civ. P. 50(b)(1)(A). Because such a motion deals with a "question

[that] is a legal one, whether there is sufficient evidence to support a

jury verdict," White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992), our

review of the trial court's action is de novo. See, e.g., Rockport

Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th Cir.

1995).

Mr. Butler acknowledges the holdings of this court that, in ruling

on such a motion, a court "must analyze the evidence in the light most

favorable to the prevailing party [in this case, the defendants] and must

not engage in a weighing or evaluation of the evidence or consider

questions of credibility," and that for such a motion to be granted, "all

the evidence must point one way and be susceptible of no reasonable

inference sustaining the position of the nonmoving party [in this case, the

defendants]." White, 961 F.2d at 779; see also 9A C. Wright and A. Miller,

Federal Practice and Procedure: Civil 2d § 2524 at 255-59 (1995).

Mr. Butler contends, however, that we should consider as well certain

uncontradicted evidence favorable to him. See, e.g., Frieze v. Boatmen's

Bank of Belton, 950 F.2d 538, 540 (8th Cir. 1991), and Caudill v. Farmland

Industries, Inc., 919 F.2d 83, 86 (8th Cir. 1990); see also Dace v. ACF

Industries, Inc., 722 F.2d 374, 377 n.6 (8th Cir. 1983), supplemented on

petition for rehearing, 728 F.2d 976 (8th Cir. 1984) (per curiam).

Assuming,
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without holding, that that approach is an appropriate one, see, e.g., 9A

Wright and Miller, Federal Practice § 2529 at 299-300, 

we are satisfied that Mr. Butler was not entitled to judgment as a matter

of law.

In fact, the evidence that Mr. Butler points to is not only

uncontradicted, it came from the defendant himself. Mr. Butler directs

attention to the fact, which Mr. French admitted at trial, that Mr. French

pleaded guilty to a charge of failure to yield as evidence of negligence

that must be credited in determining whether Mr. French made out a

submissible case on his lack of negligence. But Mr. French testified that

he simply felt that it was easier to pay than to contest the ticket.

Mr. French's excuse for colliding with the train, moreover, was that he was

blinded by glare from the sun and could not see the train in time to stop,

and a state trooper testified that Mr. French told him the same thing at

the scene of the accident. The jury was free to accept Mr. French's

explanations. Mr. Butler also relies on the fact that while on the witness

stand Mr. French acknowledged his duty to be careful when approaching a

railroad crossing and to stop if a train was coming. But this is not

evidence of any relevant fact. If it is anything, it is a concession as

to what the law is. In any case, it is nothing but argument. The same can

be said of Mr. French's admission that a crossing with a flashing light (as

in this case) requires more caution than one with a gate.

Finally, Mr. Butler points to Mr. French's admission that he was

familiar with the railroad crossing and his concession that a slower

approach would have given him a longer time to see the train coming. But

Mr. Butler fails to connect the first of these admissions to any negligence

on Mr. French's part. The second admission is, on one level, a statement

of incontrovertible scientific fact and, on another, simply a matter of

common sense. It is not evidence of anything. On either level, it cannot

serve
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to take the case from the jury in the face of Mr. French's testimony that

glare from the sun blinded him. There was no evidence that would require

the jury to find that the glare or its effects were avoidable through the

exercise of ordinary care. In other words, if the jury believed all of the

evidence that we have recounted, it could have concluded that Mr. French

was not negligent. We therefore hold that the trial court was correct in

denying Mr. Butler's motion for judgment as a matter of law. See, e.g.,

White, 961 F.2d at 779, and Dace, 722 F.2d at 375.

II.

In the alternative, Mr. Butler argues that in denying a new trial,

see Fed. R. Civ. P. 50(b)(1)(A), Fed. R. Civ. P. 59(a)(1), the trial court

incorrectly looked only at whether there was a miscarriage of justice and

did not consider whether the verdict was against the great weight of the

evidence. We review the trial court's action for an abuse of discretion.

See, e.g., Smith v. World Insurance Co., 38 F.3d 1456, 1460 (8th Cir.

1994), quoting Lowe v. E. I. DuPont de Nemours and Co., 802 F.2d 310,

310-11 (8th Cir. 1986). 

It is true that some cases from this court have described the

criteria for deciding a motion for new trial in what may have been the

disjunctive -- i.e., "that the verdict is against the clear weight of the

evidence or that the granting of a new trial is necessary to prevent

injustice" (emphasis supplied). Crowley Beverage Company, Inc. v. Miller

Brewing Co., 862 F.2d 688, 690 (8th Cir. 1988). Later cases make plain,

however, that, as a matter of law, these formulations are identical. See,

e.g., Shaffer v. Wilkes, 65 F.3d 115, 117 (8th Cir. 1995) (court may grant

new trial "on the basis that the verdict is against the weight of evidence,

if the first trial results in a miscarriage of justice"); Jacobs

Manufacturing Co. v. Sam Brown Co., 19 F.3d 1259, 1266 (8th Cir. 1994),

cert. denied, 115 S. Ct. 487 (1994),
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115 S. Ct. 1251 (1995) (court may grant new trial "if the verdict was

against the 'great weight' of the evidence, so that granting a new trial

would prevent a miscarriage of justice"); and White v. Pence, 961 F.2d 776,

780 (8th Cir. 1992) (although we have used "'clear weight,' 'overwhelming

weight,' or 'great weight,' ... the ultimate test was whether there had

been a miscarriage of justice") (emphasis supplied in all examples); see

also Beckman v. Mayo Foundation, 804 F.2d 435, 439 (8th Cir. 1986).

Mr. Butler further asserts that since the trial court stated that "if

I were on the jury, I would definitely find [Mr. French] negligent," it was

an abuse of discretion for the trial court then to deny the motion for new

trial. We disagree. In the first place, this remark was made during a

jury instructions conference, not after the verdict was in, and not during

the course of a consideration of the motion for new trial. But secondly,

and more importantly, a trial court may not grant a new trial simply

because the trial court would have found a verdict different from the one

the jury found. This is certainly a necessary condition to granting a

motion for new trial, but it is not a sufficient one. Rather, the trial

court must believe, as we have already said, that the verdict was so

contrary to the evidence as to amount to a miscarriage of justice. In

refusing to come to that conclusion, the trial court certainly did not

abuse its discretion, given the substantiality of the evidence supporting

the jury's verdict.

III.

The trial court allowed the defendants to introduce evidence of

Mr. Butler's past problems with alcohol abuse -- that he had been fired for

a year because of it in 1976, that he had received treatment for it in 1983

and early 1987, and that he had been off the job for inpatient treatment

in late 1987. The defendants also introduced evidence that in 1987 the

railroad had required Mr. Butler to attend meetings of Alcoholics Anonymous

for two years
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and that one of the treating hospitals had recommended that he undergo

treatment for life. Finally, while cross-examining Mr. Butler, the

defendants referred to medical records not in evidence that quoted

Mr. Butler as saying that "the only time [he had] been sober in the last

20 years was [a] five month period" in 1987; the defendants subsequently

questioned Mr. Butler about whether his drinking might be one of the

reasons that his income dropped in 1987.

Mr. Butler asserts that the last incident in evidence took place in

1987 and argues that allowing the admission of all of that evidence was

therefore an abuse of discretion under Fed. R. Ev. 403. See, e.g., United

States v. Rabins, 63 F.3d 721, 726 (8th Cir. 1995), cert. denied, 64

U.S.L.W. 3575 (U.S. Feb. 26, 1996). Mr. Butler cites cases dealing with

evidence of insanity and illegal drug use but none on evidence of alcohol

abuse. 

The defendants, on the other hand, maintain that the evidence was

relevant to damages for future lost income. We agree. See, e.g., Haney

v. Mizell Memorial Hospital, 744 F.2d 1467, 1475 (11th Cir. 1984)

(admission of evidence on plaintiff's past history of alcohol problems

relevant to issue of future loss of earnings). We note, moreover, that

Mr. Butler failed to object when the evidence was admitted (although he had

previously moved in limine to exclude it, a motion that the trial court

denied). The admission of that evidence was certainly not plain error.

See, e.g., Cook v. American Steamship Co., 53 F.3d 733, 743 (6th Cir. 1995)

(admission of evidence on plaintiff's past history of alcohol problems not

plain error, where defendant alleged that plaintiff had shorter life

expectancy because of alcoholism).

IV.

The railroad took photographs of the train and the truck at the site

after the accident. The railroad had the photographs in
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its possession until a week before trial, when the railroad turned them

over to Mr. Butler, who then listed them as trial exhibits. Just before

trial, the defendants moved to exclude the photographs, arguing that they

had not received the photographs. The trial court granted the motion. We

review the exclusion of evidence as a sanction for disobeying a pretrial

order for an abuse of discretion. See, e.g., Mawby v. United States, 999

F.2d 1252, 1253-54 (8th Cir. 1993).

On appeal, Mr. Butler contends that because the railroad disclosed

the photographs as early as mid-1993 (before it settled), the defendants

had access to them; that the trial court's ruling was apparently a

discovery sanction against Mr. Butler but that he was not responsible for

the defendants' failure to obtain the photographs; and, therefore, that the

trial court's exclusion of the photographs was an abuse of discretion.

The defendants respond that they did not know until the day of trial

that the photographs would be introduced and did not receive the

photographs until that day. The defendants also argue that the exclusion

was a sanction for not complying with the trial court's order to "list and

exchange all exhibits prior to trial," not a discovery sanction, and that,

in any event, Mr. Butler suffered no prejudice from the exclusion of the

photographs. Mr. Butler replies that he included the photographs on his

exhibit list as required but acknowledges that he did not actually provide

the photographs until the first day of trial.

The real difficulty here, we think, is that although the pretrial

order requires exhibits to be listed and the lists to be given to the court

(and presumably to all parties) "no later than 5 days before trial," the

order sets no deadline for when the exhibits themselves are to be

exchanged, other than "prior to trial." Mr. Butler was technically in

compliance with the trial
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court's order, since he gave the defendants his exhibit list at least five

days before trial and offered to give the exhibits themselves to the

defendants "prior to trial," that is, on the day that the trial was to

begin but before it did begin. Under these circumstances, it may have been

an abuse of discretion not to allow Mr. Butler to use the photographs. We

do not believe, however, that the error affected Mr. Butler's "substantial

rights." See Fed. R. Civ. P. 61; see also Fed. R. Ev. 103(a). In other

words, the error, if any, was harmless at most, because the photographs

would have added nothing substantial to Mr. Butler's case.

V.

For the reasons stated, we affirm the judgment of the trial court.

A true copy.

Attest:

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