William A. Mehojah and Fredricka Lou Mehojah,plaintiffs-Appellants v. Charles R. Drummond as Representative of the R.C. Drummond West Ranch Trust ( 1995 )

PAUL J. KELLY, Jr., Circuit Judge.

In this diversity action, William and Fre-drieka Mehojah appeal from the district court’s exclusion of certain evidence in their negligence action against Charles Drum-mond, as the representative of the R.C. Drummond West Ranch Trust.

Background

A.

The R.C. Drummond West Ranch Trust (the “Trust”) leases pasture land in Osage County, Oklahoma, on which it grazes its cattle. In the winter of 1990, the Trust leased pasture land from Mark Fairweather, a cousin of Mr. Drummond. The fence around that pasture crossed a creek that ran through the pasture and under the adjacent highway. Attached to the permanent fence at the point where the fence crossed the creek was a “water gap” fence, which is a temporary structure (here, consisting of four strands of barbed wire) designed to break away if it is struck by debris in the creek, thereby leaving the permanent fence intact. For many years prior to the date in question, there had been a “wing fence” on the east side of the creek, extending from the point where the permanent fence attached to the water gap fence to the rail of the bridge where the highway crossed the creek. The wing fence is a permanent structure designed to preven livestock from escaping onto the highway in the event that the water gap fence is destroyed. There was no such wing fence on the west side of the creek because, until July 1989, there was an earthen berm on that side which was sufficiently steep that cattle could not escape.' In July 1989, the Oklahoma highway department performed work on the bridge, removed the berm, and graded the embankment so that it was much less steep. No wing fence was installed on the west side despite the fact that the removal of the berm meant that cattle might escape on that side in the event the water gap fence was destroyed. The owner of the land, Mr. Fairweather, regularly inspected the fence and was aware that the berm had been removed.

On January 5, 1990, at approximately 1:00 p.m., the Trust placed its cattle in the pasture. Before doing so, Trust employees and Mr. Fairweather visually inspected the fence, including the water gap fence and the surrounding area, which was visible from the road. At some point later that day, the cattle broke through the water gap fence and climbed up the embankment onto the highway. At approximately 7:00 p.m., the Meho-jahs, who were travelling west on the highway, rounded a curve and collided with several of the cattle, destroying the Mehojahs’ car and inflicting serious injuries on the Me-hojahs. The Mehojahs brought suit against Mr. Drummond, both individually and as a representative of the Trust, alleging that the cattle had been negligently released into the pasture when the fences were inadequate. The Mehojahs later dismissed without prejudice the suit against Mr. Drummond in his individual capacity. Not until after the statute of limitations had run did the Mehojahs realize that Mr. Fairweather actually owned the land in question. As a result, Mr. Fair-weather was not a party to the suit.

B.

Before trial, the Trust filed a motion in limine seeking to exclude all evidence of the fact that, either on the night of the accident or on the day after, Mr. Fairweather installed a wing fence on the west side of the creek. The motion in limine was premised on Rule 407 of the Federal Rules of evidence, which provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Fed.R.Evid. 407. At the hearing on the motion in limine, the Mehojahs argued that Rule 407’s prohibition on evidence of subsequent remedial measures was inapplicable because the wing fence had been erected by Mr. Fairweather, who was a non-party. The district court rejected this argument and, finding that Rule 407 applied, granted the motion in limine. During the trial, the Mehojahs made an offer of proof to the court as to Mr. Fairweather’s construction of the wing fence, and the district court again disallowed the evidence on the same Rule 407 ground. Mr. Fairweather also testified at trial that when the state removed the embankment on the west side of the creek, the nature of the business required installation of a wing fence on that side. (Aplt.App. at 120). The jury returned a verdict for the Defendant, and the Mehojahs appeal.

Discussion

On appeal, the Mehojahs argue that the trial court abused its discretion in excluding the evidence of the subsequent remedial measure. They renew the argument made to the trial court that Rule 407 should not apply under these circumstances because Mr. Fair-weather was a non-defendant third party. We agree. “[R]ule 407 only applies to a defendant’s voluntary actions;” it does not apply to subsequent remedial measures by non-defendants. Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 881 (9th Cir.1991). See also TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 (4th Cir.1994) (“[E]vidence of subsequent repairs may be admitted where those repairs have been performed by someone other than the defendant.”); Dixon v. International Harvester Co., 754 F.2d 573, 583 (5th Cir.1985) (“[Wjhere repairs were made by a non-defendant, Rule 407 does not bar the evidence.”). We reject the rule crafted by the dissent, as unsupported by the cases and unworkable, that Rule 407 applies not only to actual defendants, but also to obvious potential defendants. See Dissent at 3.

Evidence was adduced that a better fence should have been built. The Mehojahs argue that by requesting jury instructions about an Oklahoma statutory prohibition on construction of a fence on a state right-of-way, Okla.Stat.Ann. tit. 69, § 1211, the Trust placed both the issues of feasibility of building, as well as control over, the fence before the jury. While we conclude that the court should not have excluded the evidence, we do not believe that the exclusion constituted reversible error.

The mere request for a much broader instruction than given or the colloquy between the court and counsel did not make control and feasibility primary issues in the case. Despite the language of the proposed instruction, the instruction actually given merely indicated that prior approval of the State of Oklahoma was required to place a fence on a state highway right-of-way. The remainder of the instruction specifically stated that “an owner of cattle has the legal duty to exercise reasonable care to keep its cattle within the pasture enclosure and prevent cattle from running free on the highway.” Aplt. App. at 50.

Having reviewed the entire record including the pleadings, we are of the view that the dispositive fact question in this trial was whether the Trust was negligent in placing cattle in a pasture where one end was secured only by a water gap fence. Indeed, at trial, Mehojahs’ counsel stated that the “negligence ... is not so much the lack of Drum-mond building the fence, the negligence is placing the cattle on property which was improperly maintained_” Aplee. Supp.App. at 70. Given the material issue at trial, the evidence about construction of the wing fence by Mr. Fairweather (the non-party property owner) the following day would not have helped the Mehojahs’ case. Indeed, such evidence is consistent with Mr. Fairweather’s testimony that the water gap fence was a reasonable barrier, although the long-range solution to this problem was a wing fence in lieu of the water gap fence.

28 U.S.C. § 2111 requires us to “give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” See also Fed.R.CivJP. 61. The statute applies to both criminal and civil cases. O’Neal v. McAninch, — U.S. -, -, 115 S.Ct. 992, 997, 130 L.Ed.2d 947 (1995). Applying the nonconstitutional standard for harmless error, we are satisfied that the erroneous exclusion of the evidence did not have a substantial influence on the verdict, nor do we have grave doubt as to whether it had such an effect. See United States v. Jefferson, 925 F.2d 1242, 1255 (10th Cir.), cert. denied, 502 U.S. 884, 112 S.Ct. 238, 116 L.Ed.2d 194 (1991); Hinds v. General Motors, 988 F.2d 1039, 1049 (10th Cir.1993).

AFFIRMED.