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-tra iler 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. F rench, 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 motio n for judgment as a matter of law or, in the alternative, for a new trial.

Mr. Butler appeals, arguing that the evidence was insufficient t o 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. B utler's past problems with alcohol abuse; and that the trial court wrongly precluded him fro m introducing into evidence some photographs taken of the train and the truc k at the site after the accident. We affirm the judgment of the trial court

.

I. Mr. Butler first argues that the tri al 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 "questio n [that] is a legal one, whether there is sufficient evidence to support a jur y verdict," White v. Pence , 961 F.2d 776, 779 (8th Cir. 1992), ou r review of the trial court's action is de novo . See , e.g. , Rockpor t Pharmacy, Inc. v. Digital Simplistics, Inc. , 53 F.3d 195, 197 (8th Cir

. 1995).

Mr. Butl er acknowledges the holdings of this court that, in rulin g
on such a motion, a court "must analyze the evidence in the light mos t favorable to the prev ailing party [in this case, the defendants] and must not engage in a weighing or evaluation of the evidence or conside r questions of credibil ity," and that for such a motion to be granted, "all the evide nce must point one way and be susceptible of no reasonabl e inference sustaining the position of the nonmoving party [in this case, th e defendants]." White , 961 F.2d at 779; see also 9A C. Wright and A. Miller , Fed eral Practice and Procedure: Civil 2d § 2524 at 255-59 (1995)

. Mr. But ler contends, however, that we should consider as well certai n uncontradicted eviden ce 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 Industr ies, Inc. , 919 F.2d 83, 86 (8th Cir. 1990); see also Dace v. AC F 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 onl y
unc ontradicted, it came from the defendant himself. Mr. Butler direct s 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 tha t 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 wa s 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 witnes s stand Mr. French acknowledged his duty to be careful when approaching a rai lroad crossing and to stop if a train was coming. But this is no t 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 ca n be said of Mr. French's admission that a crossing with a flashing light (a s in this case) requires more caution than one with a gate.

Fi nally, Mr. Butler points to Mr. French's admission that he wa s fami liar with the railroad crossing and his concession that a slowe r approach would have g iven him a longer time to see the train coming. But Mr. Butler fails to connect the first of these admissions to any negligenc e on Mr. French's part. The second admission is, on one level, a statement of incontrovertible scientific fact and, on another, simply a matter o f 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 bl inded 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 th e evidence that we have recounted, it could have concluded that Mr. French was not negligent. W e 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 on ly 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), qu oting 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 th e criteria for deciding a motion for new trial in what may have been th e disjunctive -- i.e. , "that the verdict is against the clear weight of the eviden ce or that the granting of a new trial is necessary to preven t 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 formula tions are identical. See , e.g. , Shaffer v. Wilkes , 65 F.3d 115, 117 (8th C ir. 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"); Jacob s Manufactu ring 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 wa s 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 ha d 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 th at "if I were on the jury, I would definitely find [Mr. French] negligent," it wa s 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 verd ict was in, and not during the course of a consi deration of the motion for new trial. But secondly, and mo re importantly, a trial court may not grant a new trial simpl y because the trial cou rt 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 s o contrary to the evidence as to amount to a miscarriage of justice. I n refus ing to come to that conclusion, the trial court certainly did no t abuse its discretion, given the substantiality of the evidence supporting the jury's verdict.

III. The trial court allowed the defendants to introduce evidence o f Mr. Butler's past problems with alcohol abuse -- that he had been fired fo r
a year because of it in 1976, that he had received treatment for it in 198 3 and early 1987, and that he had been off the job for inpatient treatment in late 1 987. The defendants also introduced evidence that in 1987 th e railroad had required Mr. Butler to attend meetings of Alcoholics Anonymou s for two years

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and t hat one of the treating hospitals had recommended that he underg o treatm ent for life. Finally, while cross-examining Mr. Butler, th e defend ants referred to medical records not in evidence that quote d 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 ques tioned Mr. Butler about whether his drinking might be one of th e reasons that his income dropped in 1987.

Mr. Butle r asserts that the last incident in evidence took place in 1987 and argues that allowing the admission of all of that evidence wa s therefore an abuse of discretion under Fed. R. E v. 403. See , e.g. , United States v. Rabins , 63 F.3d 721, 726 (8th Cir. 1995), cert. denied , 6 4 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 d efendants, on the other hand, maintain that the evidence wa s relevant to damages for future lost income. We agree. See , e.g. , Haney
v. Mi zell Memorial Hospital , 744 F.2d 1467, 1475 (11th Cir. 1984 ) (admis sion of evidence on plaintiff's past history of alcohol problem s relevant to issue of future loss of earnings). We note, moreover, tha t Mr. Butler failed to object when the evidence was admitted (although he ha d previousl y moved in limine to exclude it, a motion that the trial cour t 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 histo ry of alcohol problems not plain error, where defendant alleged that plaintiff had shorter lif e 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 the m
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 cou rt 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 disclose d 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 ag ainst Mr. Butler but that he was not responsible for the defendants' failure to obtain the photographs; and, therefore, that th e 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 th at the photographs would be introduced and did not receive th e photographs until tha t 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 dis covery 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 h e did not actually provide the photographs until the first day of trial.

The r eal difficulty here, we think, is that although the pretria l order requires exhibits to be listed and the lists to be given to the cour t (and presumably to all parties) "no later than 5 days before trial," the order se ts no deadline for when the exhibits themselves are to b e excha nged, other than "prior to trial." Mr. Butler was technically i n 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 th e defendan ts "prior to trial," that is, on the day that the trial was t o begin but before it did begin. Under these circumstances, it may have bee n an abuse of discretion not to allow Mr. Butler t o 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 photograph s 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.