     Case: 09-60534     Document: 00511092033          Page: 1    Date Filed: 04/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            April 26, 2010

                                       No. 09-60534                         Lyle W. Cayce
                                                                                 Clerk

DAVID COLLEY,

                                                   Plaintiff — Appellant
v.

CSX TRANSPORTATION, INC.

                                                   Defendant — Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:07-CV-1175


Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Appellant David Colley appeals the jury verdict against him and in favor
of Appellee CSX Transportation, Inc. on the ground that the district court
committed error by not permitting the jury to find that CSX was vicariously
liable for its contractor’s failure to cut vegetation at a private railroad crossing.
Because we find that Colley did not properly preserve his objection and does not
satisfy plain error review, we affirm.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
  Case: 09-60534    Document: 00511092033     Page: 2   Date Filed: 04/26/2010

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                       FACTS AND PROCEEDINGS
      Colley allegedly suffered injuries on November 2, 2004, when a concrete
truck he was driving was struck by a train while crossing a private railroad
crossing in Jackson County, Mississippi. Colley claimed that a 14-foot wall of
vegetation blocked his view of the oncoming train. The crossing was a private
crossing not accessible to the public, was built and maintained under contract
by Colley’s employer, Bayou Concrete, and served as a means of egress from
Bayou’s plant. Bayou was immune from suit because Colley collected worker’s
compensation benefits, but he sued CSX for negligence in failing to maintain the
crossing. The district judge ruled on summary judgment and reiterated at trial
that CSX had a non-delegable common law duty to maintain the crossing in
question.
      At the jury charge conference Colley objected to Instruction No. 16,
concerning apportionment of fault, and to the jury verdict form “to the extent
that it permits apportionment of fault.” Instruction No. 16 read:
      It is the law that one is not liable for damage which was not
      proximately caused by him or her. Hence, if there is evidence on
      which you find it clearly possible to conclude that the damage
      resulting from the acts of CSX Transportation, Incorporated, can
      be separated from that resulting from the acts of other persons or
      entities that were not parties to this lawsuit, you may apportion
      fault or liability for those damages accordingly.

The special verdict form had one question on CSX’s negligence—to which the
jury answered “no”—and then questions on damages and apportionment of fault.
These included Question Nos. 4 and 5, which asked:
      Question Number Four: Do you find by a preponderance of the
      evidence that the negligence of Bayou Concrete with respect to
      maintenance of the vegetation, if any, proximately caused or
      contributed to cause the locomotive/motor vehicle collision in this
      case? . . .



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       Question Number Five: . . . [W]hat percentage of fault do you
       attribute to the negligence of each responsible party and/or non-
       party?

Both questions would only be answered if the jury answered “yes” to the first
question, on CSX’s negligence. The district court overruled Colley’s objections
and the jury later found that CSX was not negligent.
      Colley argues that the district court erred when it permitted the jury,
through its instructions and its jury verdict form, to apportion fault to Bayou
Concrete, because CSX’s duty to maintain the crossing was non-delegable. Colley
claims that this error of law “deprived the jury of a certain means, under the
Special Verdict Form, of determining whether Bayou Concrete was directly
negligent and then imputing any liability thereby determined to CSX.”
                           STANDARD OF REVIEW
      We review challenges to jury instructions for an abuse of discretion and
will reverse the judgment only if the charge as a whole creates a substantial
doubt as to whether the jury has been properly guided in its deliberations. See
Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 494 (5th Cir. 2002). “Perfection is not
required as long as the instructions were generally correct and any error was
harmless. This standard provides the district court with great latitude
concerning the charge.” Taita Chem. Co. v. Westlake Styrene, LP, 351 F.3d 663,
667 (5th Cir. 2003) (footnote omitted).
                                  DISCUSSION
      Colley argues that the jury instructions given by the district court
misstated the law and confused the jury. “A party who objects to an instruction
or the failure to give an instruction must do so on the record, stating distinctly
the matter objected to and the grounds for the objection.” F ED. R. C IV. P. 51(c)(1).
“Failure to present a specific written instruction to the trial court bars an [sic]
subsequent complaint on appeal that the instruction was not given.” Kanida v.


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Gulf Coast Med. Personnel LP, 363 F.3d 568, 580 (5th Cir. 2004). To preserve an
objection to jury instructions for review by this court, a party must bring the
objection to the attention of the district court. See Russell v. Plano Bank & Trust,
130 F.3d 715, 719-20 (5th Cir. 1997) (citing 9A W RIGHT & M ILLER, F EDERAL
P RACTICE & P ROCEDURE § 2553 (2d ed. 1995)). A general objection to the
instructions is not enough. Russell, 130 F.3d at 720. “Only when the appellate
court is sure that the trial court was adequately informed as to a litigant’s
contentions may the appellate court reverse on the basis of jury instructions to
which there was no formal objection.” Id. (quoting Industrial Dev. Bd. of the
Town of Section, Ala. v. Fuqua Indus., Inc., 523 F.2d 1226, 1238 (5th Cir. 1975)).
“Examples of this exception involve clear cases where the exception is justified:
a litigant who fails to object when invited to do so but who had previously filed
sufficient objections; a litigant who fails to object after the court intimated that
no more objections would be heard; and a previous ‘emphatic’ ruling by a judge
made later objections futile.” Taita Chem., 351 F.3d at 667-68 (footnotes
omitted).
      In a letter brief submitted to the court, Colley admitted that he did not
propose a jury instruction as to CSX’s vicarious liability, and that his only
objections to the district court’s negligence instructions were on grounds not
relevant to this appeal. Since Colley did not preserve his objection, our review
of the jury instructions is for plain error. See Taita Chem., 351 F.3d at 668.
Under this standard a party must show: (1) error (2) that is plain, (3) that affects
substantial rights, and (4) that if left uncorrected would seriously affect the
fairness, integrity, or public reputation of judicial proceedings. Id. “The plain
error exception is designed to prevent a miscarriage of justice where the error
is clear under current law.” Id. The Mississippi Supreme Court has never ruled
on whether a railroad is vicariously liable for its contractor’s failure to maintain
a private crossing, and accordingly it cannot be said that even if in error, the

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district court’s instructions were plainly so. Further, there was ample evidence
to support the jury’s finding of no negligence, so there is no miscarriage of justice
in this case. While Colley did present evidence that the vegetation blocked his
view, there was evidence cutting the other way. A defense expert, reviewing
photographs of the crossing, testified that there was no vegetation blocking
Colley’s view and that Colley had a 480-foot line of sight as he approached the
tracks. The police officer who investigated the crash could not say that
vegetation contributed to the accident, “because if it had, I would have noted it
in my report, especially if the driver would have told me that.” A witness to the
accident testified that he never saw Colley look to the right, in the direction of
the oncoming train, as he approached the tracks. Another Bayou driver who
crossed the tracks that day testified that his view was not obstructed. And a CSX
track inspector testified that the track in question was inspected twice a month
and sprayed for vegetation control once a year. There was no plain error and no
miscarriage of justice.1
       Finally, we must determine whether the district judge’s apportionment
instructions—to which Colley undisputedly preserved an objection—themselves


       1
          Nor is it the case that Colley’s objection to the apportionment instructions was
sufficient to preserve his appeal as to the district court’s failure to give a vicarious liability
instruction. The gravamen of Colley’s complaint on appeal is that the instructions “deprived
the jury of a certain means, under the Special Verdict Form, of determining whether Bayou
Concrete was directly negligent and then imputing any liability thereby determined to CSX.”
If the district court had granted Colley’s objection and struck the apportionment instructions
and questions, would that have satisfied his complaint?
        The answer, clearly, is no. To get what he wanted, Colley needed to ask the district
court to take another step: either to add a line to Question No. 1 of the verdict form that
permitted the jury to find that Bayou failed to maintain the crossing, or to give an additional
instruction to the jury that “such negligence [of CSX]” as used in Question No. 1 was a term
of art that included Bayou’s failure to maintain the crossing. While we do not hold that such
an instruction would have correctly stated the law, it is clear from the record that Colley never
requested the district court to take these additional steps or objected to the district court’s
failure to do so. Objecting to the apportionment instructions was not sufficient to apprise the
district court of his contentions; Colley needed to make a positive objection to the negligence
instructions or offer his own instruction on vicarious liability.

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require remand for a new trial. In a diversity case, “the substance of jury charges
is governed by state law, but the form or manner of giving the instruction is
controlled by federal law.” Broad. Satellite Int’l, Inc. v. Nat’l Digital Television
Ctr., Inc., 323 F.3d 339, 347 (5th Cir. 2003). Even if the jury instructions were
erroneous, we will not reverse if we determine that the challenged instruction
could not have affected the outcome of the case. Hartsell, 207 F.3d at 272.
      Assuming arguendo that the district court misstated the law as regards
apportionment of fault, this error did not affect the outcome of the case in light
of the jury verdict of no negligence, which left no fault to apportion. A jury
instruction, even if erroneous, is harmless if it is apparent in light of the verdict
that the jury did not consider the erroneous instruction. See Martin v. MBank
El Paso, N.A., 947 F.2d 1278, 1281 (5th Cir. 1991) (error in instruction on
reasonable reliance was harmless when a jury found that defendant was not
negligent as to representation); Perry v. Chevron U.S.A., Inc., 887 F.2d 624, 628
(5th Cir. 1989) (error in instruction on contributory negligence was harmless
when a jury found that complained-of condition was not cause of injury);
Sulmeyer v. Coca Cola Co., 515 F.2d 835, 852 (5th Cir. 1975) (erroneous
instruction on treble damages in antitrust case was harmless when a jury found
no antitrust violation); Wallace v. Ener, 521 F.2d 215, 222 (5th Cir. 1975) (error
in instruction on damages was harmless when a jury found for defendant on
liability). See also 11 W RIGHT & M ILLER, F EDERAL P RACTICE & P ROCEDURE § 2886
(2d ed. 1995) (“Errors in instructions routinely are ignored . . . if the erroneous
instruction went to an issue that is immaterial in light of the jury’s verdict.”).
Any error in the apportionment instructions was immaterial in light of the
finding of no negligence.
                                 CONCLUSION
      The judgment of the district court is AFFIRMED.



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