## Facts

- A CN–IC train crew (conductor, engineer, brakeman) conducted a switching operation in Memphis, Tennessee; each crew member had safety responsibilities for the crew and nearby persons.
- On November 10, 1996, nine-year-old Johnathan Rush and several neighborhood children were near the moving train during the switching operation.
- Evidence showed Rush attempted to board or otherwise came into contact with the moving train, fell beneath it, and suffered catastrophic injuries, including the amputation of a leg.
- Shortly after the accident, a CN–IC claims representative interviewed child witnesses and obtained audiotaped statements that were transcribed.
- Rush’s mother sued CN–IC in federal court under diversity jurisdiction, asserting Tennessee negligence theories including liability under Tennessee’s Lookout Statute.
- After a jury returned a verdict for CN–IC, the plaintiff moved for a new trial under Rule 59; the district court denied the motion.

## Issues

1. Whether the district court reversibly erred by admitting prior witness statements and audio recordings, including the use of a transcript to refresh a child witness’s recollection and having the witness read portions of a prior statement.
2. Whether the jury erred by failing to find CN–IC liable under Tennessee’s Lookout Statute.
3. Whether the jury disregarded the instruction that a nine-year-old is presumed incapable of negligence under Tennessee law.
4. Whether the district court abused its discretion in denying a new trial because the verdict was against the clear weight of the evidence.

## Decision

- The Sixth Circuit affirmed the judgment for CN–IC and the denial of the Rule 59 motion for a new trial.
- The court held the challenged evidentiary rulings on prior statements and audio recordings were within the district court’s discretion and did not warrant a new trial.
- The court held the record permitted the jury to find no breach of the Lookout Statute duty and no actionable negligence by CN–IC.
- The court found no basis to conclude the jury failed to apply the presumption that a nine-year-old is incapable of negligence, particularly given that the verdict could rest solely on lack of CN–IC negligence.
- The court held the defense verdict was not against the clear weight of the evidence and the district court did not abuse its discretion in letting it stand.

## Legal Principles

- A district court’s evidentiary rulings, including use of writings to refresh recollection and admission/use of prior recorded statements, are reviewed for abuse of discretion and are reversible only upon a showing of substantial prejudice or legal error.
- Tennessee’s Lookout Statute imposes a duty on railroads to keep a lookout and take reasonable measures to avoid injury, but liability still requires proof of breach and causation based on what the crew reasonably could have seen and done under the circumstances.
- Under Tennessee law, a nine-year-old is presumed incapable of negligence; however, a defense verdict may be sustained where the jury finds the defendant was not negligent, without reaching comparative fault.
- A new trial under Rule 59 is warranted only when the verdict is against the clear weight of the evidence or results in a miscarriage of justice; appellate review of the denial of a new trial is highly deferential.

## Conclusion

The Sixth Circuit upheld the jury’s defense verdict and the denial of a new trial, concluding that the district court’s evidentiary rulings were not an abuse of discretion and that the disputed evidence allowed the jury to find CN–IC neither violated Tennessee’s Lookout Statute nor otherwise acted negligently, making the verdict consistent with the instructions and not against the clear weight of the evidence.


Rush v. Ill. Cent. R.R. Co., 399 F.3d 705 (6th Cir. 2005)