Woods v. Kansas City So Rwy

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 1, 2000
• Docket: 99-31065
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-31065 Summary Calendar _____________________

DOUGLAS G. WOODS,

Plaintiff-Appellee,

versus

KANSAS CITY SOUTHERN RAILWAY CO.,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-672 _________________________________________________________________ September 1, 2000

Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

A jury awarded Douglas G. Woods $455,000 on his Federal

Employers’ Liability Act suit against his employer, Kansas City

Southern Railway Co. (“KCS”). KCS appeals the district court’s

denial of a motion for judgment as a matter of law or, in the

alternative, for a new trial.

KCS argues that the district court erred in admitting ten

photographs depicting a right-of-way other than the one where

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Woods’s on-the-job accident occurred. KCS principally argues that

the photographs should not have been admitted because they were not

properly authenticated pursuant to Fed. R. Evid. 901. Because KCS

made no Rule 901 objection in the district court, review is for

plain error only. See Russell v. Plano Bank & Trust, 130 F.3d 715,

721 (5th Cir. 1997) (defining plain-error standard). We find no

plain error under Rule 901. See United States v. Jimenez Lopez,

873 F.2d 769, 772 (5th Cir. 1989). KCS renews its arguments that

the admission of the photographs was improper because they were

irrelevant and unduly prejudicial. Having reviewed the record, we

hold that the district court did not abuse its discretion in

rejecting these arguments. See United States v. Opager, 589 F.2d

799, 803 (5th Cir. 1979) (Rule 401); United States v. Richards, 204

F.3d 177, 196 (5th Cir. 2000) (Rule 403), petition for cert. filed,

68 U.S.L.W. 3002 (U.S. June 20, 2000) (No. 99-2049).

KCS argues that after the district court granted its motion in

limine and forbade Woods from making any claims relating to the

Federal Safety Appliance Act, it improperly allowed the jury to

hear evidence about a bent ladder rung. Because KCS has provided

us with no citations to the record or to case law in regard to this

issue, it is considered abandoned. See American States Ins. Co. v.

Bailey, 133 F.3d 363, 372 (5th Cir. 1998) (“[f]ailure to provide

any legal or factual analysis results in waiver”). Regardless, we

2 note that KCS did not object to the testimony about the bent rung,

and we see no plain error in allowing the testimony. See Russell,

130 F.3d at 721.

KCS argues that the district court erred by permitting Woods

to pursue his claim that the railroad violated 49 C.F.R.

§ 213.103(c); it contends that the track in question was “excepted”

from that regulation by virtue of § 213.4. Having reviewed the

record, we conclude that § 213.4, if applicable, stated an

affirmative defense to Woods’s claim. Because KCS did not raise

this defense before trial and because the issue was not tried by

consent, it could not be argued by KCS for the first time in its

posttrial motion. See Allied Bank-West, N.A. v. Stein, 996 F.2d

111, 115 (5th Cir. 1993). We also reject the contention that the

district court committed plain error when, on the basis of a stray

remark by a single witness, it failed to itself raise the

possibility of a § 213.4 defense. See Glass Containers Corp. v.

Miller Brewing Co., 643 F.2d 308, 312 (5th Cir. Unit A Apr. 1981).

Finally, KCS argues that the district court erred in failing

to give its Proposed Jury Instruction No. 10. Because KCS did not

object after the jury charge to the district court’s failure to

give this particular instruction, it has arguably waived the issue.

Cf. Crist v. Dickson Welding, Inc., 957 F.2d 1281, 1286 (5th Cir.

1992). Assuming that the issue was not waived, we agree with the

3 district court that the jury charge as a whole properly guided the

jury in its deliberations. See Russell, 130 F.3d at 719.

A F F I R M E D.