                                   No. 95-3116


Bobby R. Butler,                      *
                                      *
      Appellant,                      * Appeal from the United States
                                      * District Court for the Eastern
        v.        * District of Arkansas.
                                      *
Darce French, d/b/a                   *
Darce French Trucking Company,        *
and Don C. French,                    *
                                      *
       Appellees.                     *




                            Submitted:    March 15, 1996

                              Filed:     April 25, 1996


Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Don French was driving a tractor-trailer truck when it collided with
the train in which Bobby Butler was working.               Alleging Mr. French's
negligence and personal injury to himself, Mr. Butler sued the railroad,
Mr.   French,   and   the   trucking   company   for   which   Mr.   French   worked.
Mr. Butler settled with the railroad, and, after a three-day trial, a jury
found Mr. French and the trucking company not liable to Mr. Butler.               The
trial court denied Mr. Butler's subsequent motion for judgment as a matter
of law or, in the alternative, for a new trial.


      Mr. Butler appeals, arguing that the evidence was insufficient to
sustain the verdict; in the alternative, that the trial court improperly
denied him a new trial; that the trial court abused its
discretion in admitting evidence regarding Mr. Butler's past problems with
alcohol   abuse; and that the trial court wrongly precluded him from
introducing into evidence some photographs taken of the train and the truck
at the site after the accident.   We affirm the judgment of the trial court.


                                     I.
     Mr. Butler first argues that the trial court should have granted his
motion for judgment as a matter of law.   See Fed. R. Civ. P. 50(a)(1), Fed.
R. Civ. P. 50(b)(1)(A).     Because such a motion deals with a "question
[that] is a legal one, whether there is sufficient evidence to support a
jury verdict," White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992), our
review of the trial court's action is de novo.         See, e.g., Rockport
Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th Cir.
1995).


     Mr. Butler acknowledges the holdings of this court that, in ruling
on such a motion, a court "must analyze the evidence in the light most
favorable to the prevailing party [in this case, the defendants] and must
not engage in a weighing or evaluation of the evidence or consider
questions of credibility," and that for such a motion to be granted, "all
the evidence must point one way and be susceptible of no reasonable
inference sustaining the position of the nonmoving party [in this case, the
defendants]."   White, 961 F.2d at 779; see also 9A C. Wright and A. Miller,
Federal Practice and Procedure:       Civil 2d § 2524 at 255-59 (1995).
Mr. Butler contends, however, that we should consider as well certain
uncontradicted evidence favorable to him.   See, e.g., Frieze v. Boatmen's
Bank of Belton, 950 F.2d 538, 540 (8th Cir. 1991), and Caudill v. Farmland
Industries, Inc., 919 F.2d 83, 86 (8th Cir. 1990); see also Dace v. ACF
Industries, Inc., 722 F.2d 374, 377 n.6 (8th Cir. 1983), supplemented on
petition for rehearing, 728 F.2d 976 (8th Cir. 1984) (per curiam).
Assuming,




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without holding, that that approach is an appropriate one, see, e.g., 9A
Wright and Miller, Federal Practice §           2529 at 299-300,
we are satisfied that Mr. Butler was not entitled to judgment as a matter
of law.


        In   fact,   the   evidence   that   Mr.   Butler   points   to   is   not   only
uncontradicted, it came from the defendant himself.              Mr. Butler directs
attention to the fact, which Mr. French admitted at trial, that Mr. French
pleaded guilty to a charge of failure to yield as evidence of negligence
that must be credited in determining whether Mr. French made out a
submissible case on his lack of negligence.          But Mr. French testified that
he simply felt that it was easier to pay than to contest the ticket.
Mr. French's excuse for colliding with the train, moreover, was that he was
blinded by glare from the sun and could not see the train in time to stop,
and a state trooper testified that Mr. French told him the same thing at
the scene of the accident.            The jury was free to accept Mr. French's
explanations.    Mr. Butler also relies on the fact that while on the witness
stand Mr. French acknowledged his duty to be careful when approaching a
railroad crossing and to stop if a train was coming.                 But this is not
evidence of any relevant fact.         If it is anything, it is a concession as
to what the law is.        In any case, it is nothing but argument.       The same can
be said of Mr. French's admission that a crossing with a flashing light (as
in this case) requires more caution than one with a gate.


        Finally, Mr. Butler points to Mr. French's admission that he was
familiar with the railroad crossing and his concession that a slower
approach would have given him a longer time to see the train coming.                  But
Mr. Butler fails to connect the first of these admissions to any negligence
on Mr. French's part.        The second admission is, on one level, a statement
of incontrovertible scientific fact and, on another, simply a matter of
common sense.    It is not evidence of anything.        On either level, it cannot
serve




                                          -3-
to take the case from the jury in the face of Mr. French's testimony that
glare from the sun blinded him.        There was no evidence that would require
the jury to find that the glare or its effects were avoidable through the
exercise of ordinary care.      In other words, if the jury believed all of the
evidence that we have recounted, it could have concluded that Mr. French
was not negligent.     We therefore hold that the trial court was correct in
denying Mr. Butler's motion for judgment as a matter of law.                See, e.g.,
White, 961 F.2d at 779, and Dace, 722 F.2d at 375.


                                           II.
      In the alternative, Mr. Butler argues that in denying a new trial,
see Fed. R. Civ. P. 50(b)(1)(A), Fed. R. Civ. P. 59(a)(1), the trial court
incorrectly looked only at whether there was a miscarriage of justice and
did not consider whether the verdict was against the great weight of the
evidence.    We review the trial court's action for an abuse of discretion.
See, e.g., Smith v. World Insurance Co., 38 F.3d 1456, 1460 (8th Cir.
1994), quoting Lowe v. E. I. DuPont de Nemours and Co., 802 F.2d 310,
310-11 (8th Cir. 1986).


      It is true that some cases from this court have described the
criteria for deciding a motion for new trial in what may have been the
disjunctive -- i.e., "that the verdict is against the clear weight of the
evidence or that the granting of a new trial is necessary to prevent
injustice" (emphasis supplied).        Crowley Beverage Company, Inc. v. Miller
Brewing Co., 862 F.2d 688, 690 (8th Cir. 1988).                Later cases make plain,
however, that, as a matter of law, these formulations are identical.               See,
e.g., Shaffer v. Wilkes, 65 F.3d 115, 117 (8th Cir. 1995) (court may grant
new trial "on the basis that the verdict is against the weight of evidence,
if   the    first   trial   results   in   a     miscarriage    of   justice");   Jacobs
Manufacturing Co. v. Sam Brown Co., 19 F.3d 1259, 1266 (8th Cir. 1994),
cert. denied, 115 S. Ct. 487 (1994),




                                           -4-
115 S. Ct. 1251 (1995) (court may grant new trial "if the verdict was
against the 'great weight' of the evidence, so that granting a new trial
would prevent a miscarriage of justice"); and White v. Pence, 961 F.2d 776,
780 (8th Cir. 1992) (although we have used "'clear weight,' 'overwhelming
weight,' or 'great weight,' ... the ultimate test was whether there had
been a miscarriage of justice") (emphasis supplied in all examples); see
also Beckman v. Mayo Foundation, 804 F.2d 435, 439 (8th Cir. 1986).


     Mr. Butler further asserts that since the trial court stated that "if
I were on the jury, I would definitely find [Mr. French] negligent," it was
an abuse of discretion for the trial court then to deny the motion for new
trial.   We disagree.   In the first place, this remark was made during a
jury instructions conference, not after the verdict was in, and not during
the course of a consideration of the motion for new trial.   But secondly,
and more importantly, a trial court may not grant a new trial simply
because the trial court would have found a verdict different from the one
the jury found.     This is certainly a necessary condition to granting a
motion for new trial, but it is not a sufficient one.    Rather, the trial
court must believe, as we have already said, that the verdict was so
contrary to the evidence as to amount to a miscarriage of justice.      In
refusing to come to that conclusion, the trial court certainly did not
abuse its discretion, given the substantiality of the evidence supporting
the jury's verdict.


                                    III.
     The trial court allowed the defendants to introduce evidence of
Mr. Butler's past problems with alcohol abuse -- that he had been fired for
a year because of it in 1976, that he had received treatment for it in 1983
and early 1987, and that he had been off the job for inpatient treatment
in late 1987.     The defendants also introduced evidence that in 1987 the
railroad had required Mr. Butler to attend meetings of Alcoholics Anonymous
for two years




                                    -5-
and that one of the treating hospitals had recommended that he undergo
treatment for life.         Finally, while cross-examining Mr. Butler, the
defendants     referred   to   medical   records   not   in   evidence    that   quoted
Mr. Butler as saying that "the only time [he had] been sober in the last
20 years was [a] five month period" in 1987; the defendants subsequently
questioned Mr. Butler about whether his drinking might be one of the
reasons that his income dropped in 1987.


      Mr. Butler asserts that the last incident in evidence took place in
1987 and argues that allowing the admission of all of that evidence was
therefore an abuse of discretion under Fed. R. Ev. 403.           See, e.g., United
States v. Rabins, 63 F.3d 721, 726 (8th Cir. 1995), cert. denied, 64
U.S.L.W. 3575 (U.S. Feb. 26, 1996).         Mr. Butler cites cases dealing with
evidence of insanity and illegal drug use but none on evidence of alcohol
abuse.


      The defendants, on the other hand, maintain that the evidence was
relevant to damages for future lost income.          We agree.     See, e.g., Haney
v.   Mizell    Memorial   Hospital,   744   F.2d   1467,   1475   (11th   Cir.    1984)
(admission of evidence on plaintiff's past history of alcohol problems
relevant to issue of future loss of earnings).             We note, moreover, that
Mr. Butler failed to object when the evidence was admitted (although he had
previously moved in limine to exclude it, a motion that the trial court
denied).      The admission of that evidence was certainly not plain error.
See, e.g., Cook v. American Steamship Co., 53 F.3d 733, 743 (6th Cir. 1995)
(admission of evidence on plaintiff's past history of alcohol problems not
plain error, where defendant alleged that plaintiff had shorter life
expectancy because of alcoholism).


                                         IV.
      The railroad took photographs of the train and the truck at the site
after the accident.       The railroad had the photographs in




                                         -6-
its possession until a week before trial, when the railroad turned them
over to Mr. Butler, who then listed them as trial exhibits.             Just before
trial, the defendants moved to exclude the photographs, arguing that they
had not received the photographs.        The trial court granted the motion.       We
review the exclusion of evidence as a sanction for disobeying a pretrial
order for an abuse of discretion.        See, e.g., Mawby v. United States, 999
F.2d 1252, 1253-54 (8th Cir. 1993).


        On appeal, Mr. Butler contends that because the railroad disclosed
the photographs as early as mid-1993 (before it settled), the defendants
had access to them; that the trial court's ruling was apparently a
discovery sanction against Mr. Butler but that he was not responsible for
the defendants' failure to obtain the photographs; and, therefore, that the
trial court's exclusion of the photographs was an abuse of discretion.


        The defendants respond that they did not know until the day of trial
that    the   photographs   would   be   introduced   and   did   not   receive   the
photographs until that day.     The defendants also argue that the exclusion
was a sanction for not complying with the trial court's order to "list and
exchange all exhibits prior to trial," not a discovery sanction, and that,
in any event, Mr. Butler suffered no prejudice from the exclusion of the
photographs.     Mr. Butler replies that he included the photographs on his
exhibit list as required but acknowledges that he did not actually provide
the photographs until the first day of trial.


        The real difficulty here, we think, is that although the pretrial
order requires exhibits to be listed and the lists to be given to the court
(and presumably to all parties) "no later than 5 days before trial," the
order    sets no deadline for when the exhibits themselves are to be
exchanged, other than "prior to trial."          Mr. Butler was technically in
compliance with the trial




                                         -7-
court's order, since he gave the defendants his exhibit list at least five
days before trial and offered to give the exhibits themselves to the
defendants "prior to trial," that is, on the day that the trial was to
begin but before it did begin.   Under these circumstances, it may have been
an abuse of discretion not to allow Mr. Butler to use the photographs.   We
do not believe, however, that the error affected Mr. Butler's "substantial
rights."   See Fed. R. Civ. P. 61; see also Fed. R. Ev. 103(a).    In other
words, the error, if any, was harmless at most, because the photographs
would have added nothing substantial to Mr. Butler's case.


                                     V.
     For the reasons stated, we affirm the judgment of the trial court.


     A true copy.


            Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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