734 S.E.2d 148
S.C.2012Background
- Wrongful death and survival action arising from a train collision at a grade crossing in Denmark, SC; crossing lacked lights/crossbar but had crossbucks and stop lines.
- Frances Harvey drove decedent Beryl Harvey to the crossing; decedent, a quadriplegic, was secured in a wheelchair and died from blunt trauma after the collision.
- Plaintiff Connie Carson, as personal representative, sued CSX Transportation (CSX) and the SC Department of Transportation (SCDOT); SCDOT settled before trial.
- Jury found CSX 40% negligent and Harvey 60% negligent; damages in the survival action were zero; verdicts prompted post-trial motions including JNOV, new trial nisi additur, and new trial absolute.
- Circuit court denied post-trial motions; appellate court affirmed most evidentiary rulings and jury instructions but reversed denial of new trial nisi additur and remanded for a new trial absolute on the survival action.
- Several evidentiary and jury-charge disputes were central, including exclusion of SCDOT pre-accident recommendation and post-accident vegetation evidence, and the effect of the damages verdict on survival action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Evidentiary exclusion of SCDOT pre-accident recommendation | Carson contends § 409 data should be admissible | CSX/defendants maintain § 409 privilege applies | Exclusion proper under § 409 and § 403/407; testimony barred |
| Evidentiary exclusion of post-accident vegetation cutting | Post-accident vegetation evidence admissible for impeachment and causation | Rule 407 bars subsequent remedial evidence for negligence | Exclusion affirmed; impeachment and other purposes not satisfied; no abuse of discretion |
| Jury charge omitting 'particularly dangerous' language in § 56-5-2715 | Omission misstates duty to stop at dangerous crossings | Omission appropriate; potential confusion minimized | Discretionary to omit; charge sustained |
| Survival action damages and new trial remedy | Damages were improperly zero; trial confusion warranted new trial nisi additur | Jury allocation consistent; no basis for additur | New trial nisi additur reversed; remanded for new trial absolute in survival action |
Key Cases Cited
- Erickson v. Jones St. Publishers, LLC, 368 S.C. 444 (S.C. 2006) (standard for appellate correction of legal errors in jury trial)
- Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417 (S.C. 2009) (abuse of discretion standard for evidentiary rulings)
- Cole v. Raut, 378 S.C. 398 (S.C. 2008) (jury instruction and evidentiary error review)
- O’Neal v. Bowles, 314 S.C. 525 (S.C. 1993) (standard for reviewing denial of new trial nisi additur)
- Webb v. CSX Transportation, Inc., 364 S.C. 639 (S.C. 2005) (post-accident evidence restrictions under Rule 407)
- Pierce County v. Guillen, 537 U.S. 129 (U.S. 2003) (section 409 scope regarding data collected for fed. funds)