                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-1857
                                     ___________

James Carlton Newton,                       *
                                            *
             Appellee,                      *
                                            * Appeal from the United States
      v.                                    * District Court for the Eastern
                                            * District of Arkansas.
Ryder Transportation Services, Inc.,        *
                                            *
             Appellant.                     *
                                   ___________

                             Submitted: January 13, 2000

                                  Filed: March 14, 2000
                                    ___________

Before WOLLMAN, Chief Judge, and FLOYD R. GIBSON and MORRIS
      SHEPPARD ARNOLD, Circuit Judges.
                             ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       James Newton filed this complaint in diversity, claiming that he suffered injuries
because Ryder Transportation Services, Inc., negligently failed to complete certain
mechanical repairs to a truck that it leased to Mr. Newton's employer and negligently
failed to replace the truck's defective seat belt. The jury returned a verdict in
Mr. Newton's favor on both theories and awarded him $204,000, attributing 25 percent
of the damages to Ryder's failure to complete the repairs and the remaining 75 percent
to Ryder's failure to replace the seat belt. Ryder appeals, arguing that the trial court
erred in refusing to admit the deposition of Sergeant Anthony Parker and in denying
Ryder's motion for judgment as a matter of law on the seat belt claim. We reverse and
remand the matter for a new trial.

                                            I.
       When Mr. Newton complained to his employer that the truck that he was driving
"[p]ulled hard to the right" and that the seat belt on the driver's side was "stuck," his
employer requested that Ryder make repairs pursuant to their lease agreement.
Although Ryder asserts that it remedied the steering difficulty, it concedes that it was
unable to replace the seat belt because the necessary parts were unavailable. A few
days after the truck left the Ryder maintenance facility, Mr. Newton was driving it from
Arkansas to Mississippi and was involved in a one-vehicle accident that left him with
injuries to his thigh.

       Sergeant Parker was the first officer at the scene. During his deposition, he was
unable to recall the accident even after being presented with a copy of the relevant
accident report that he had filled out and signed. He did, however, read the report into
the record of his deposition, and he explained what various parts of it meant.
According to Sergeant Parker, the report indicated that Mr. Newton stated that he fell
asleep behind the wheel and that he was wearing a seat belt at the time of the accident.
When Ryder sought to have Sergeant Parker's deposition read into evidence,
Mr. Newton objected on the grounds of hearsay, and the trial court sustained the
objection.

       Mr. Newton maintains, first, that the part of the accident report concerning his
statement about falling asleep at the wheel was not relevant because Ryder failed to
plead contributory negligence. While Mr. Newton concedes that Ryder has
consistently denied responsibility for the accident, he points out that the trial court
granted his motion in limine to prevent Ryder from asserting contributory negligence
as part of its defense, a ruling from which Ryder did not appeal. Mr. Newton argues

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that the accident report was relevant only on the issue of his own negligence, and is
therefore barred by Ryder's failure to plead affirmative defenses. We disagree.

       The verdict form in this case asked the jury to determine whether Ryder
"negligently failed to make mechanical repairs which proximately caused plaintiff's
injuries." The question of who caused the accident was therefore always at the heart
of this case, and we reject Mr. Newton's contention that Ryder's failure to plead the
affirmative defense of contributory negligence somehow bars it from presenting
evidence that Mr. Newton caused the accident by falling asleep at the wheel. This
aspect of the accident report quite obviously goes directly to a principal issue in the
case.

       Mr. Newton also contends in his brief that, "[s]ince the jury found Ryder's
negligence to be a proximate cause of the wreck, the seatbelt argument is now moot."
We find his argument unpersuasive because the jury had to determine not only whether
Ryder caused injury to Mr. Newton by negligently failing to make the necessary
mechanical repairs but also, to quote one of the interrogatories, whether Ryder
"negligently failed to replace the seat belt which proximately caused plaintiff's injuries."
The jury was therefore presented two separate and distinct inquiries that required
independent findings of causation. A finding that Ryder's negligence in not making
mechanical repairs caused some injury to Mr. Newton does not answer the question of
whether Ryder negligently failed to replace the seat belt and caused other injuries, and
therefore does not moot that issue. There was no contention, and there could have been
none, that Ryder's failure to replace the seat belt somehow caused the accident.

                                            II.
       Ryder contends that the contents of the accident report were admissible because
the information in it qualified as a hearsay exception under Fed. R. Evid. 803(5). That
rule permits the admission of a "record concerning a matter about which a witness once
had knowledge but now has insufficient recollection to enable the witness to testify

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fully and accurately, shown to have been made or adopted by the witness when the
matter was fresh in the witness' memory and to reflect that knowledge correctly." If
these predicates are satisfied, the record may then be read into evidence, but it is not
itself received as an exhibit. See generally Greger v. International Jensen, Inc., 820
F.2d 937, 943 (8th Cir. 1987).

       The rule makes no attempt to spell out a precise method that courts should use
for establishing the witness's initial knowledge or the contemporaneity and accuracy of
the record in question, but rather leaves these matters to be "dealt with as the
circumstances of the particular case might indicate." See Fed. R. Evid. 803(5),
advisory committee notes to 1972 proposed rules. Mr. Newton argues that the accident
report is inadmissible because it is unclear whether Sergeant Parker received the
information from Mr. Newton or from some other person. We disagree.

         Mr. Newton refers us to Meder v. Everest and Jennings, Inc., 637 F.2d 1182
(8th Cir. 1981), as apposite authority. The police report at issue in that case, however,
was prepared by an officer who testified that he could not recall whether the
information that he wrote down came from the plaintiff, from someone accompanying
the plaintiff, or from a third party who observed the accident. Id. at 1185-86. We held
that it was error to admit the testimony because the officer "had no knowledge" of the
"origin of the statement." Id. at 1186.

        We believe that Meder is inapposite because Sergeant Parker testified that there
were no other witnesses and thus that the information in the report concerning
Mr. Newton's accident could have come only from Mr. Newton. According to
Sergeant Parker, Mr. Newton "told [him] he fell asleep." Sergeant Parker further
testified during the deposition that "[he] wouldn't have put it in this block [of the report]
if [Mr. Newton] hadn't said that." Sergeant Parker's report also indicates that
Mr. Newton was in fact wearing his seat belt at the time of the accident, and Sergeant


                                             -4-
Parker testified that this information was given to him by Mr. Newton either at the
accident scene or in the hospital.

       Sergeant Parker, an experienced highway patrol officer who routinely prepares
reports of this kind, acknowledged that he prepared and signed the report on the day
of the accident, that it was accurate to the best of his knowledge, and that the
information in it could have come only from Mr. Newton. While it is, of course, the
trial court's prerogative to decide whether the necessary factual foundation for the
admissibility of evidence has been laid, see Fed. R. Evid. 104(a), the court here gave
no indication that it disbelieved Sergeant Parker, and we believe that it implicitly
indicated that it did believe him. We conclude, therefore, that Ryder established the
necessary predicates for the admission of the report under Fed. R. Evid. 803(5) and that
the report was therefore admissible. See Greger, 820 F.2d at 943.

       Mr. Newton maintains that if there was error in the exclusion of the report, it was
harmless because the contents of the report were merely cumulative, see Porchia v.
Design Equipment Co., 113 F.3d 877, 881 (8th Cir. 1997). Ryder, on the other hand,
contends that the trial court's exclusion of the report was prejudicial because it was
"relevant to dispute Newton's contention [at trial] that he was not wearing a seatbelt,"
and because it was "necessary to refute Newton's contention [at trial] that the accident
occurred due to the truck pulling hard to the right." We agree with Ryder.

       While there were witnesses who testified at trial that Mr. Newton could have
worn the seat belt because it was mechanically sound, the excluded report was the only
evidence that Mr. Newton in fact stated that he was wearing the seat belt at the time
of the accident. The exclusion of the report was therefore clearly prejudicial on this
score. Bobby Rice, the trucking manager of Mr. Newton's employer, and Dr. Jeffrey
Hubacek, Mr. Newton's emergency room physician, both testified, moreover, that
Mr. Newton admitted to them that he fell asleep at the wheel. Although the report
repeats the testimony of Mr. Rice and Dr. Hubacek on this issue, it provides important

                                           -5-
additional support directly contradicting Mr. Newton's claim that the accident was
caused by the truck's mechanical problems. We therefore cannot say that the evidence
that the report provided was "merely cumulative" on this point, cf. Johnson v.
Richardson, 701 F.2d 753, 756 (8th Cir. 1983). We believe that the trial court
committed reversible error because the contents of the accident report on both matters
was of "a critical nature, so that there is no reasonable assurance that the jury would
have reached the same conclusion had the evidence been admitted," Adams v. Fuqua
Industries, Inc., 820 F.2d 271, 273 (8th Cir. 1987).

                                          III.
       Ryder asks us to hold that there was insufficient evidence to permit a jury to
determine the extent to which the alleged absence of a functioning seat belt increased
Mr. Newton's injuries, as required by Arkansas law. The relevant statute provides that
the party seeking to show that injuries were caused by not using a seat belt must
demonstrate that wearing the seat belt "would have reduced [the] injuries," see Ark.
Code Ann. § 27-37-703(a)(2)(C)(ii), and must establish "[t]he extent of the reduction
of such injuries," see Ark. Code Ann. § 27-37-703(a)(2)(C)(iii). See generally Shelter
Mutual Insurance Co. v. Tucker, 748 S.W.2d 136, 137-38 (Ark. 1988).

        At trial, however, Mr. Newton presented the reports of a consulting physician,
Dr. Charles Clark, to the jury. Dr. Clark's reports stated that Mr. Newton suffered from
a 20 percent impairment, and that the impairment was caused when "[t]he seat belt
failed and he jammed his thighs up under the steering wheel," resulting in a "large
hematoma in the medial aspect of the [left] thigh." We believe that this and the other
trial evidence, including the pictures of the wrecked truck and Mr. Newton's testimony
concerning what happened during the accident, was sufficient for the jury to determine
the extent to which the alleged absence of a functioning seat belt enhanced
Mr. Newton's injuries. Cf. Potts v. Benjamin, 882 F.2d 1320, 1322-23 (8th Cir. 1989).




                                          -6-
                                  IV.
For the foregoing reasons, we reverse and remand the matter for a new trial.

A true copy.

      Attest:

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




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