Train conductor's injury claim arising out of grade crossing collision is dismissed

Damon Hubbard sued his employer, the Norfolk Southern Railway under the Federal Employers' Liability Act, after he was injured at a private train crossing (the law holds a railroad employer responsible for injuries resulting "in any part" from its negligence).  Hubbard presented proof that the crossing had limited visibility and that his car was struck by an Amtrak train because the crossing lacked adequate line of sight visibility, warnings, and gates.  He presented testimony confirming his allegations and the Railroad presented contradictory testimony.  The jury found in favor of the railroad and Hubbard appealed, arguing that the trial judge's rulings prevented a fair trial.

The Court of Appeals ruled that a responding police officer could testify as a "lay witness" that the crossing was "reasonably safe," even though he had not been listed as a potential expert witness and held no qualifications pertinent to railroad grade crossing safety. 

The Court also allowed the Railroad to put into evidence a claimed history of no prior accidents at the subject crossing, even though the Court agreed that a lack of serious accidents is generally unreliable evidentiary proof of lack of negligence.  It noted that longstanding Michigan law holds that "the absence of previous accidents should not be admitted to prove lack of negligence." Nevertheless, the Court held that the admission of this evidence was not error in Hubbard's case because it was relevant to foreseeability. 

The Court of Appeals also held that the trial judge did not err in prohiting Hubbard's attorneys from introducing or referring to state and federal regulations and safety standards because the instant collision occurred at a "privately-owned" crossing. For reasons we don't comprehend, the Court suggested that safety standards compiled by governmental entities to render public crossings safe are "irrelevant" to whether a private crossing is "reasonably safe."

The Plaintiff also objected to the fact that defense attorneys were allowed to violate a prior court order by suggesting that one-half of grade crossing accidents occur in the presence of gates and flashing warning lights.  The Court said the attorneys' wrongful conduct could be overlooked because it was "passing, brief, not repeated" and could have been cured by an appropriate instruction if requested. The Court also held that it was not error for the trial judge to exclude evidence showing that public crossings near the accident site were protected by gates and warning lights.

Lastly, the plaintiff objected to the court's dismissal of one of the jurors.  The juror had complained by a note to the court that one of the railroad's expert witnesses had attempted to influence jurors by displaying in open sight a book entitled Without Conscience--the Disturbing World of the Psychopaths Among Us during a bench conference with counsel.  In response, the Court dismissed the juror but took no action to discipline the witness, "Dr. Manfred Greiffenstein>"  Talk about shooting the messenger.