Woods v. Kansas City So Rwy ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-31065
Summary Calendar
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DOUGLAS G. WOODS,
Plaintiff-Appellee,
versus
KANSAS CITY SOUTHERN RAILWAY
CO.,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Louisiana
USDC No. 97-CV-672
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September 1, 2000
Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
A jury awarded Douglas G. Woods $455,000 on his Federal
Employers’ Liability Act suit against his employer, Kansas City
Southern Railway Co. (“KCS”). KCS appeals the district court’s
denial of a motion for judgment as a matter of law or, in the
alternative, for a new trial.
KCS argues that the district court erred in admitting ten
photographs depicting a right-of-way other than the one where
*
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this opinion should not be published and is not precedent except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.
Woods’s on-the-job accident occurred. KCS principally argues that
the photographs should not have been admitted because they were not
properly authenticated pursuant to Fed. R. Evid. 901. Because KCS
made no Rule 901 objection in the district court, review is for
plain error only. See Russell v. Plano Bank & Trust, 130 F.3d 715,
721 (5th Cir. 1997) (defining plain-error standard). We find no
plain error under Rule 901. See United States v. Jimenez Lopez,
873 F.2d 769, 772 (5th Cir. 1989). KCS renews its arguments that
the admission of the photographs was improper because they were
irrelevant and unduly prejudicial. Having reviewed the record, we
hold that the district court did not abuse its discretion in
rejecting these arguments. See United States v. Opager, 589 F.2d
799, 803 (5th Cir. 1979) (Rule 401); United States v. Richards, 204
F.3d 177, 196 (5th Cir. 2000) (Rule 403), petition for cert. filed,
68 U.S.L.W. 3002 (U.S. June 20, 2000) (No. 99-2049).
KCS argues that after the district court granted its motion in
limine and forbade Woods from making any claims relating to the
Federal Safety Appliance Act, it improperly allowed the jury to
hear evidence about a bent ladder rung. Because KCS has provided
us with no citations to the record or to case law in regard to this
issue, it is considered abandoned. See American States Ins. Co. v.
Bailey, 133 F.3d 363, 372 (5th Cir. 1998) (“[f]ailure to provide
any legal or factual analysis results in waiver”). Regardless, we
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note that KCS did not object to the testimony about the bent rung,
and we see no plain error in allowing the testimony. See Russell,
130 F.3d at 721.
KCS argues that the district court erred by permitting Woods
to pursue his claim that the railroad violated 49 C.F.R.
§ 213.103(c); it contends that the track in question was “excepted”
from that regulation by virtue of § 213.4. Having reviewed the
record, we conclude that § 213.4, if applicable, stated an
affirmative defense to Woods’s claim. Because KCS did not raise
this defense before trial and because the issue was not tried by
consent, it could not be argued by KCS for the first time in its
posttrial motion. See Allied Bank-West, N.A. v. Stein, 996 F.2d
111, 115 (5th Cir. 1993). We also reject the contention that the
district court committed plain error when, on the basis of a stray
remark by a single witness, it failed to itself raise the
possibility of a § 213.4 defense. See Glass Containers Corp. v.
Miller Brewing Co., 643 F.2d 308, 312 (5th Cir. Unit A Apr. 1981).
Finally, KCS argues that the district court erred in failing
to give its Proposed Jury Instruction No. 10. Because KCS did not
object after the jury charge to the district court’s failure to
give this particular instruction, it has arguably waived the issue.
Cf. Crist v. Dickson Welding, Inc., 957 F.2d 1281, 1286 (5th Cir.
1992). Assuming that the issue was not waived, we agree with the
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district court that the jury charge as a whole properly guided the
jury in its deliberations. See Russell, 130 F.3d at 719.
A F F I R M E D.
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