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
* Senior District Judge of the Northern District of California sitting by designation. 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
2 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
3 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
4 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
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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
* Senior District Judge of the Northern District of California sitting by designation. 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
2 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
3 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
4 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
5 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
6 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.
1 Jones 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 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.