
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2366                                   THOMAS KELLIHER,                                Plaintiff, Appellant,                                          v.                        GENERAL TRANSPORTATION SERVICES, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ____________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Michael Avery  with whom Jennifer  Meyerhardt, Francis Marini  and            _____________            ____________________  ______________        Marini & Turner were on brief for appellant.        _______________            John  D. Boyle,  with whom  Boyle  &  Morrissey was  on brief  for            ______________              ___________________        appellee.                                 ____________________                                    July 20, 1994                                 ____________________                      CAMPBELL, Senior Circuit  Judge.  Thomas  Kelliher,                                _____________________            plaintiff-appellant, brought a diversity action in negligence            against  General  Transportation  Services, Inc.,  defendant-            appellee,  in  the  United  States  District  Court  for  the            District of Massachusetts.  A jury trial began on October 13,            1993.   Two days later, answering  special verdict questions,            the  jury found  for  General Transportation.   After  having            moved unsuccessfully for a  new trial, Kelliher appealed from            the  judgment and from  the denial  of his  motion for  a new            trial.  We affirm.                                          I.                         On  the afternoon  of March  26,  1988, fifteen-            year-old Thomas Kelliher  of Hanson, Massachusetts,  borrowed            his older brother's "ten-speed" bicycle so that he could ride            to Del's High  Street Salon to  get a haircut.   This journey            required Kelliher to ride in the streets of Hanson.  Kelliher            testified  that  it  was  his usual  practice  when  riding a            bicycle in  the street  to stay about  a foot  away from  the            shoulder of the road.                      On  his way  to Del's,  Kelliher headed  south down            High  Street, which  has  two lanes,  running northbound  and            southbound, divided by a center line.   In the area where the            accident  occurred, High  Street is  approximately twenty-two            feet wide, with each lane measuring roughly eleven  feet from            the edge of  the pavement to the opposite edge  of the center                                         -2-            line.   At  trial, there  was evidence  that High  Street has            "soft" shoulders,  with broken  pavement, and that  sand runs            along the side of the street.                        While riding on High Street, Kelliher looked back            over his left  shoulder and saw a  Mercedes-Benz truck, owned            by General Transportation, coming up in his lane  from behind            him.  He then turned back, looked forward, and proceeded down            High Street.  The next thing Kelliher recalled was falling to            his left and feeling pain  in his left elbow.  Kelliher  then            looked up and saw the Mercedes-Benz truck about ten feet away            continuing south on High Street in  the same lane in which he            had been riding.                      Robert O'Brien,  along with his wife  and children,            was  driving in his pick-up  truck about 150  feet behind the            Mercedes-Benz truck when the  accident occurred.  He observed            the  truck pass  near Kelliher     but  not touch him  or his            bicycle    traveling at a speed of about ten to fifteen miles            per hour.  Then,  as the truck was passing  Kelliher, O'Brien            saw  Kelliher fall back to his left  towards the road.  After            Kelliher fell, O'Brien pulled up to where Kelliher was lying,            and  went to see how  he was.   He saw a pool  of blood and a            bone coming through Kelliher's left arm.  When O'Brien  asked            whether  the truck had hit him, Kelliher said, "No."  O'Brien            observed  the bicycle's  tires  in the  sand  that lined  the            section of High Street where Kelliher fell.                                           -3-                      Jeffrey  Baenziger, the driver of the Mercedes-Benz            truck, was  an employee  of General Transportation.   At  the            time of the  accident, Baenziger was purportedly  headed to a            house  on High  Street to deliver  merchandise sold  by Sears            Roebuck.   As  Baenziger approached  his destination,  he saw            Kelliher riding  his  bicycle  near  the edge  of  the  road.            Baenziger  testified that he knew there was sand just off the            shoulder of High Street  and that a bicycle might fall if its            tires  went into  the sand.   With this  knowledge, Baenziger            told the jury that  he gave Kelliher five to  seven feet when            he passed him, putting the center  of his truck in the middle            of  High  Street  so  that  half  of  his  truck was  in  the            southbound  lane  and  half   was  in  the  northbound  lane.            Baenziger  further claimed  that  he kept  his  truck in  the            center of High Street until he reached the house where he was            to make the delivery.  Then, he stopped the truck, and backed            into the driveway.   When Baenziger got out of his  truck, he            saw a group of about five  people gathered in the street.  He            approached  the gathering  to  find out  what was  happening.            Baenziger saw Kelliher lying on the ground, and observed that            his left arm  was injured.  He waited at  the scene until the            police arrived.                       Officer  Eugene Andrews of  the Hanson Police, who            arrived  on  the  scene  shortly  after  the  accident,  gave            testimony  that differed  from Baenziger's explanation  as to                                         -4-            why he stopped  his truck.   According to Andrews,  Baenziger            told  him that he stopped his truck when somebody flagged him            down.  As to Baenziger's testimony that half of his truck was            in  the  northbound  lane  of  High  Street  when  he  passed            Kelliher, Robert O'Brien testified that, after Kelliher fell,            he  saw the  truck continue  in the  southbound lane  of High            Street.   Mrs. O'Brien testified that she never saw the truck            drive into the other lane when it passed Kelliher.                      Officer Andrews testified that, when he  arrived at            the accident scene, he approached Kelliher  and saw him lying            four  or five feet  from the paved  edge of High  Street.  He            observed  that   Kelliher's  left   arm  was  "crushed"   and            "essentially  stuck to the road surface."  His left elbow was            about five feet from the edge of the road.                      After conducting an investigation,  Officer Andrews            concluded that Kelliher  had ridden his bicycle into the sand            that lined High Street, and that this  had caused him to fall            over  into the street, where  he was run  over by Baenziger's            truck approximately five feet  from the edge of  the roadway.            There  was no  evidence, according  to Officer  Andrews, that            Kelliher  had been forced off  the road by  the truck or that            the truck had hit him prior to running over his arm.   It was            Officer  Andrew's  further  conclusion  that   Baenziger  had            committed no violation and that no citation should issue.                                         -5-                                         II.                      Kelliher maintains on appeal that the "essence"  or            "theory" of  his case  was  that, regardless  of whether  the            truck Baenziger  was driving caused  his fall, it  passed too            closely to him, so as to run over his arm after he fell.   He            assigns as error  the court's failure  to give his  requested            jury instruction No. 9:                           Plaintiff is not  required to  prove                      that  there  was   an  actual   collision                      between  the  defendant's  truck and  the                      bicycle  or  between  the truck  and  the                      plaintiff himself, in  order to  recover.                      It is sufficient  for plaintiff to  prove                      that  his  injuries   resulted  from   an                      accident   that   was   caused   by   the                      negligence of the defendant or its agent.            The  district  court  declined   to  give  this  instruction,            although, as later  discussed, its instruction on  negligence            and causation was  not inconsistent  and did not  in any  way            limit plaintiff to recovering only if the truck collided with            him.                        Kelliher  further complains  that the  court unduly            limited  the jury  when,  at the  outset  of its  charge,  it            described the plaintiff's contentions as follows:                           In this case, the plaintiff contends                      that he was injured when a truck owned by                      the   defendant,   and   driven  by   the                      defendant's employee, Jeffrey  Baenziger,                      either  knocked  or forced  the plaintiff                      __________________________                      off  of  his  bicycle.     The  plaintiff                      contends that Mr. Baenziger was negligent                      in  driving   the  truck  and   that  his                                         -6-                      negligence    caused    the   plaintiff's                      injuries.  [Emphasis supplied.]            Kelliher maintains that  by so describing his claim the court            led the jury to think  he could not recover unless he  proved            that the truck knocked or forced  him off of his bicycle.  We            disagree.                      In reviewing jury instructions, our principal focus            "`is to determine  whether they tended to  confuse or mislead            the jury on the  controlling issues.'"  Brown v.  Trustees of                                                    _____     ___________            Boston  Univ., 891  F.2d 337,  353 (1st  Cir. 1989)  (quoting            _____________            Service Merchandise Co. v. Boyd Corp., 722 F.2d 945, 950 (1st            _______________________    __________            Cir. 1983)), cert. denied, 496 U.S. 937, 110 S. Ct. 3217, 110                         ____________            L. Ed. 2d 664 (1990); e.g., Davet v. Maccarone, 973 F.2d  22,                                  ____  _____    _________            26 (1st Cir.  1992).   "`[T]he charge must  be examined as  a            whole; portions of it  are not to be treated  in isolation.'"            Brown, 891 F.2d at 353 (quoting Service Merchandise, 722 F.2d            _____                           ___________________            at  950).    "An  error in  jury  instructions  will  warrant            reversal of a  judgment only  if the error  is determined  to            have  been prejudicial, based on  a review of  the record [in            its entirety]."   Davet, 973  F.2d at 26  (citing Connors  v.                              _____                           _______            McNulty, 697 F.2d 18, 21 (1st Cir. 1983)).            _______                      To begin,  we  are  not  convinced  that  plaintiff            indicated    as he now contends     that the "essence" of his            case was that Baenziger was negligent simply because he drove            his truck so closely  to Kelliher that if the latter fell for            some unrelated reason, his arm could be injured by the truck.                                         -7-            This was definitely not the theory  of negligence asserted in            Kelliher's complaint     and no amendment  was ever proposed.            Rather  the  complaint  alleged  that  "defendant's  employee            Baenziger [negligently] struck  the plaintiff with  the truck            he was driving  . . . ."   Nor was it  the theory  Kelliher's            attorney stated  to the jury  at opening  argument.   Counsel            asserted  then that  even if  Baenziger's truck  had  not hit            Kelliher, Baenziger  was driving  so perilously close  to him            "that he caused the  accident, caused [him] to fall  from his            bicycle and caused him to be injured."                        At   closing   argument  Kelliher   reiterated  the            foregoing theme,  contending that "what  we know for  sure is            that [Baenziger] was not  driving in the middle of  that road            and that he gave [Kelliher] only about this much clearance of            that side  of the road,  and that as  a result, as  a result,                                              ____________  ____________            [Kelliher] fell and the truck drove over his arm."  [Emphasis            supplied.]   To be  sure, counsel  also suggested  in closing            argument,  as another  ground of  negligence, that  the truck            driver should have foreseen that plaintiff might fall off his            bicycle for reasons  unrelated to operation of the  truck, so            that his arm would go under  the wheels.  But this theory was            interwoven with the earlier ones, which were not abandoned.                      In  these   circumstances,   it  is   perhaps   not            surprising that the district court should have  characterized            the plaintiff's  contentions as being that  the truck "either                                         -8-            knocked  or  forced  the   plaintiff  off  of  his  bicycle."            Plaintiff  did not, thereafter,  ask the court  to rescind or            revise  this description  of what  he contended.   After  the            charge, however, plaintiff did  object to the court's failure            to  give his proposed instruction No. 9, telling the court in            this connection that  "[i]t is also a  part of our theory  of            the case" that plaintiff might recover "if [he] fell and then            the  truck ran over him simply because  [it] was too close to            him."                      In  deciding whether  to amplify  its instructions,            the  court was entitled to  take into account  whether it had            already sufficiently  covered the same  ground.  We  think it            had.    Apart  from  the criticized  initial  description  of            plaintiff's contentions, the court  had said nothing whatever            in its  charge regarding any  need to prove  that defendant's            driver  struck  or forced  Kelliher  off the  road.   Special            verdict question No. 1(a) read simply:                      Do   you   find   that  the   defendant's                      employee,    Jeffrey    Baenziger,    was                      negligent  with  respect to  the accident                      which occurred on March 26, 1988?            Explaining what the  jury had to  find in order  to return  a            verdict for plaintiff, the district court stated:                           In order to  find for the plaintiff,                      Thomas Kelliher, on his negligence claim,                      you  must  find, (1)  facts  indicating a                      duty  on the  part  of Mr.  Baenziger  to                      exercise   reasonable    care   for   Mr.                      Kelliher; (2) that  Mr. Baenziger  failed                      to exercise reasonable care; and (3) that                                         -9-                      Mr.   Baenziger's  failure   to  exercise                      reasonable care caused or  contributed to                      the   injury    and   consequent   damage                      sustained by Mr. Kelliher.                           Negligence  is  the  failure of  one                      owing  a  duty  of  care  to  another  to                      exercise   the  duty  of  care  which  an                      ordinarily prudent  person would exercise                      under  similar circumstances.   It is the                      failure,  by  act  or  omission,  to  use                      ordinary  care  under the  circumstances.                      Ordinary   care   is   that  care   which                      reasonably  prudent  persons exercise  in                      the  management of  their own  affairs in                      order  to avoid  injury to  themselves or                      their   property  or  to  the  person  or                      property of others.            The court went on to say,                      Massachusetts   law   requires  that   in                      approaching  or passing  a person  upon a                      bicycle, the operator  of a motor vehicle                      shall  slow  down  and  pass  at  a  safe                      distance and with safe clearance and at a                      reasonable and proper speed.  Evidence of                      compliance with or  noncompliance with  a                      traffic law may  be considered by  you as                      evidence  bearing  upon  negligence,  but                      neither compliance nor noncompliance with                      a  traffic law is  alone decisive  of the                      claim of negligence.   Furthermore, apart                      from traffic laws, a person has a duty of                      reasonable care.   Thus, if the  evidence                      supports a finding  that reasonable  care                      requires something more  than [what]  was                      required by a traffic  law, you may  find                      negligence even  in the face  of evidence                      of  compliance  with  the   traffic  law.                      Also,  on  the other  hand, noncompliance                      with  the   traffic  law  is   not  alone                      decisive.     It  is   only  evidence  of                      negligence.  You  will bear in mind  that                      the  standard  you  are to  apply  is the                      standard of  reasonable  care as  I  have                      defined it for you,  and you are to reach                      your finding  in light of  all the  facts                      and circumstances in evidence before you.                                         -10-            Taken  as a  whole,  these instructions     particularly  the            explanation  of Massachusetts traffic  law      gave the jury            ample  guidance  and  leeway  to find  for  Kelliher  had  it            concluded  that the  distance  between the  moving truck  and            Kelliher was so close  as, for whatever reason, to  reflect a            lack  of  care  on  Beanziger's  part.    What   conduct  and            considerations would add up  to a lack of care  were properly            left  to  the jury.   We  do  not think  the  court's earlier            characterization of plaintiff's claim would have  deflected a            reasonable jury from  making up  its own mind  as to  whether            Baenziger was or was not negligent.   The jury had been fully            exposed  to the parties' argument and to all the evidence, in            a claim based  on a  motor vehicle accident  well within  the            experience of the average juror to analyze.                      Nowhere in the  court's negligence instructions did            it limit  recovery to  just those circumstances  mentioned in            describing plaintiff's  claim.   Had the jury  concluded that            Baenziger acted  without proper care and that his conduct was            causally  related to the injury, it could and, we think would            have  found for  plaintiff.   While one  can argue  about the            desirability  of  giving instruction  No.  9,  the court  has            leeway  to   instruct  in  its  own   language  provided  its            description of the law was fair and accurate.  We think these            instructions provided the jury with the necessary guidance.                                         III.                                         -11-                      Kelliher   next  argues  that  the  district  court            committed  reversible  error  in  refusing  to   deliver  his            requested consciousness of liability instruction, which read:                           If you find  that the driver  of the                      defendant's vehicle knew  that there  had                      been an accident, and attempted  to leave                      the   scene   of  the   accident  without                      identifying  himself,  you  may  consider                      that   fact   as   some   proof   of  the                      defendant's liability.            Kelliher says that such  an instruction was warranted because            there was evidence at trial that, after Baenziger's truck ran            over Kelliher's arm, Baenziger did not stop his vehicle until            another motorist flagged him down.  We are not persuaded.                      "Although the determination of  the substance of  a            jury instruction in  a diversity  case is a  matter of  state            law, the grant  or denial  thereof is a  matter of  procedure            controlled by  federal law."   Farrell v. Klein  Tools, Inc.,                                           _______    __________________            866 F.2d 1294, 1296 (10th Cir. 1989).  In this context, under            Massachusetts  law, "evidence  that  [a defendant]  left  the            scene  of  [an] accident  without  identifying himself  [can]            properly  be   considered  as  some  further   proof  of  his            liability."   Olofson v.  Kilgallon, 362 Mass.  803, 806, 291                          _______     _________            N.E.2d 600, 602-03 (Mass. 1973).  Under federal law, however,            even if a proffered jury instruction accurately describes the            law, the instruction  "should not  be given if  there is  not            sufficient evidence to support it."  Prentiss &  Carlisle Co.                                                 ________________________            v. Koehring-Waterous Div. of Timberjack, Inc., 972 F.2d 6, 10               __________________________________________                                         -12-            (1st  Cir.  1992);  see Farrell,  866  F.2d  at 1297  ("Under                                ___ _______            federal law  it is error to give an instruction when there is            no  evidence to support it.").   Here, there  was no evidence            whatsoever  from which  a reasonable  juror could  infer that            Baenziger left the scene knowing that he had been involved in                                     ____________________________________            an accident.  Baenziger testified that he had no inkling that            ___________            there  had been an accident until well after it had occurred.            His  testimony  was  corroborated  by  Officer  Andrews,  who            testified that Baenziger told  him that he did not  know that            he had  run over  Kelliher.   There  was no  evidence to  the            contrary.   Accordingly, the  district court did  not err  in            refusing  to deliver  Kelliher's  proffered consciousness  of            liability instruction.                      The judgment below is affirmed.  Costs to appellee.                                                       -13-
