Mobbs v. Central VT Railway

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 86-255


Ricky L. Mobbs, et al.                       Supreme Court

         v.                                  On Appeal from
                                             Chittenden Superior Court
Central Vermont Railway, Inc.
                                             April Term, 1989


Hilton H. Dier, Jr., J.

Kohn & Rath, Hinesburg, for plaintiffs-appellants

Robert B. Hemley and Dennis R. Pearson of Gravel & Shea, Burlington, for
  defendant-appellee


PRESENT:  Allen, C.J., Peck, Gibson, and Dooley, JJ., and Barney, C.J.
          (Ret.), Specially Assigned


     GIBSON, J.   This appeal stems from a fatal train-car collision in
which three of the car's occupants were killed and the other two seriously
injured.  Plaintiffs, the two surviving passengers and the estates of two of
the decedents, appeal a jury verdict finding that defendant Central Vermont
Railway, Inc. (CVR) was negligent but that CVR's negligence was not a
proximate cause of plaintiffs' injuries.  We affirm.
                                    I.
                                    A.
     At approximately noon on February 4, 1978, David Mobbs drove his car
into the path of an oncoming train at the Jonesville railway crossing.  Mr.
Mobbs, his wife, Sandra, and their two-month-old baby, Danielle, were
killed, while the couple's two-year-old son, Christopher, and Mr. Mobbs'
sixteen-year-old brother, Ricky, survived.  Apparently, Mr. Mobbs was
unaware of the oncoming train despite the fact that he was familiar with the
crossing, the red warning lights at the crossing were flashing, the warning
bells were ringing, the train's horn had been blown according to
regulations, and the train's headlights were on.  There was no gate at the
crossing.  Mr. Mobbs had turned off Route 2 onto a smaller road and
continued at a moderate speed for fifty feet until he reached the tracks
where the train struck his car.  The car windows were rolled up and the
heater was turned on because it was very cold.  The ground was snow-covered,
the sky was clear, and the sun, being in its winter arc, was low in the
southern sky, the direction in which the Mobbs' car was headed when it was
struck.
                                    B.
     Separate actions were filed in 1980 by or on behalf of the five
occupants of the car.  Despite plaintiffs' numerous objections, the four
passenger cases were consolidated and then joined for trial with the
driver's case.  The two-week trial took place in October of 1985.  At the
close of plaintiffs' direct case, the trial court  granted CVR's motion for
a directed verdict in the case of Danielle Mobbs, based on its conclusion
that the Wrongful Death Act did not contemplate recovery for pecuniary loss
suffered by a sibling or for loss of "love and companionship" between
siblings.  Although the trial court incorrectly construed the statute as
foreclosing recovery by Danielle's brother for pecuniary injuries, we
affirmed the directed verdict because of the complete lack of evidence of
any pecuniary injury suffered by Danielle's brother as a result of
Danielle's death.  See Mobbs v. Vermont Central Ry., 150 Vt. 311, 553 A.2d 1092 (1988).
     At trial, the remaining four plaintiffs attempted to show that CVR was
negligent in its operation of the train and in its failure to provide a gate
and safer lights at the crossing.  Defendant contended that the various
safety devices provided at the crossing were adequate, and that the sole
proximate cause of the accident was David Mobbs' negligence.  After asking
the court to reread instructions defining negligence and proximate cause,
the jury, by general verdict with interrogatories, concluded that CVR was
negligent but that CVR's negligence was not a proximate cause of
plaintiffs' injuries.  Plaintiffs appeal that jury verdict.
     In a multifarious attack on the trial court proceedings, plaintiffs
claim that the court erred in (1) joining the driver's case with the
passengers' cases; (2) refusing to charge specifically that more than one
proximate cause is possible; (3) giving a charge to the jury that, in
effect, amounted to a directed verdict; (4) giving a charge which, read as a
whole, misstated the law; (5) excluding opinion evidence that the use of
gates would have prevented the accident; (6) prohibiting plaintiffs from
presenting evidence of accidents at other crossings, while allowing CVR to
present evidence of the accident history of the Jonesville crossing; (7)
allowing evidence of the driver's failure to use a seat belt; (8) excluding
an admission that the train was speeding; (9) excluding testimony regarding
the use of certain lenses in flashing lights; (10) excluding an instruction
manual that should have been handed over to plaintiffs during discovery;
(11) refusing to hold railroads strictly liable for accidents occurring at
public grade crossings; and (12) striking the nonpossessory attachment order
after the jury determined that CVR was not liable for plaintiffs' injuries.
                                    II.
     We first consider plaintiffs' claim that the trial court abused its
discretion by joining for trial the passengers' cases and the driver's case.
Plaintiffs contend that joining the cases prejudiced the passengers because
the jury might not have understood that any causal negligence on the part of
CVR would make CVR liable to the passengers regardless of whether the
driver was negligent.  In support of their contention, plaintiffs cite
several cases for the proposition that joining complaining passengers and
driver at the same trial is reversible error.  See Dupont v. Southern
Pacific Co., 366 F.2d 193 (5th Cir. 1966); Atkinson v. Roth, 297 F.2d 570
(3d Cir. 1961); Brinks v. Chesapeake & O. Ry., 295 F. Supp. 1318 (W.D.
Mich. 1969).
     A court may order a joint trial when pending actions involve "a common
question of law or fact."  V.R.C.P. 42(a).  On the other hand, a court may
order a separate trial of any claim or issue in furtherance of convenience,
expedition and economy, or to avoid prejudice.  V.R.C.P. 42(b).  Because
V.R.C.P. 42 is substantially similar to Fed. R. Civ. P. 42, see Reporter's
Notes, V.R.C.P. 42, we look to federal case law for guidance.  We begin our
analysis by noting that a trial court is given broad discretion to
determine whether a joint trial is appropriate, see, e.g., MacAlister v.
Guterma, 263 F.2d 65, 68 (2d Cir. 1958); however, when a joint trial aligns
parties in part of the litigation, and those same parties have conflicting
interests regarding other aspects of the litigation, it may be improper to
join the actions.
     The cases cited by plaintiffs illustrate the preceding point, but are
inapposite to the instant action. (FN1) Atkinson arose out of a car-truck
collision, which resulted in several separate actions, including some by
passengers against both drivers, and others against third-party defendants.
The Third Circuit overruled the trial court's decision to join for trial (FN2)
the various actions, stating that the confusing array of claims and
counterclaims, coupled with the presence of one of the drivers as both
plaintiff and defendant, burdened the court and jury and prejudiced the
parties to such an extent that separate trials were needed.  Atkinson, 297 F.2d  at 575-76.  In Dupont, although the plaintiff survivors of the driver
of a car involved in a car-train collision were not also defendants in the
action, the survivors of the guest passengers did contend that the accident
resulted from the concurrent negligence of the driver and the railroad.  In
determining that the actions of the survivors of the passengers and of the
driver belonged in separate trials, the Fifth Circuit held that the trial
court had prejudiced the rights of parties having a clear conflict of
interest by ordering the designation of a lead counsel for all plaintiffs.
366 F.2d  at 196-97.
     In the instant case, the driver did not appear as a defendant, nor did
any of the passengers allege that the driver was concurrently negligent.
Indeed, plaintiffs, who were all represented by the same counsel, pointed
out in their opening statement to the jury that the identity of the driver
was uncertain. (FN3) Thus, the case at bar is more analogous to Getz v.
Robinson, 232 F. Supp. 763 (W.D. Pa. 1964), in which the court held that the
action of an automobile passenger against the driver of the other car and
the action of the other driver against the host driver were properly tried
together where each case involved the same witnesses and had common issues
of fact and where the passenger did not assert that his host had been guilty
of negligence.  Id. at 765-66.  In distinguishing Atkinson, the Getz court
stated:
          [T]he [host] driver . . . had to keep his counterclaims
          free from contributory negligence, but in this he was
          not at "cross purposes" with his passenger, for [his
          passenger] did not sue [him], and in [the passenger's]
          complaint, pretrial narrative, and at trial, in all
          respects, he was in accord with his host . . . in
          asserting that the [other] driver . . . was the sole
          negligent cause of the accident.
               At the trial, [the other driver] . . . strove to
          prove that [the host driver] was the sole negligent
          cause of the accident and succeeded in so persuading the
          jury.  [The host driver] and his passenger . . . strove
          to prove that [the other driver] was the sole negligent
          cause of the accident and failed.
               There never was any contention, suggestion, or
          testimony on the part of [the passenger] that his host .
          . . was responsible in any way for the accident or his
          injuries.
Id. at 766 (emphasis in original).
     The separate actions brought by the passengers and the driver in the
instant case arose from the same accident, involved the same facts, and
implicated the same legal theories aside from the contributory negligence
aspect of the driver's case.  Further, the passengers never alleged any
contributory negligence on the part of the driver, and plaintiffs' counsel
reminded the jury of the legal distinction between the passengers' actions
and the driver's action on numerous occasions, including during jury
selection.  Where the facts and legal issues of the various claims in a suit
are related and reasonably straightforward, particularly where there are no
cross-claims among the parties and where interrogatories to the jury can
alleviate any potential confusion, see Stemler v. Burke, 344 F.2d 393, 396
(6th Cir. 1965); Farrell v. American Flyers Airline Corp., 42 F.R.D. 341,
342 (1967), mandamus denied, 385 F.2d 936 (2d Cir.), cert denied, 390 U.S. 1012 (1968), joint trials are appropriate.  This is precisely the situation
we have here.  Had there been separate trials, the jury would have had to
wrestle with the same issue in each trial: whether CVR was negligent and, if
so, whether that negligence contributed to plaintiffs' injuries.  The trial
court did not abuse its discretion in ordering a joint trial of the
passengers' and driver's claims in the instant action.
                                   III.
     Defendant next contends that the jury charge constituted reversible
error in that (1) it did not state that there can be more than one proximate
cause of an accident; (2) its description of a motorist's legal standard of
care, in effect, directed a verdict for defendant; and (3) it did not, as a
whole, "breathe the true spirit and doctrine of the law."
     We note initially several well-settled principles regarding jury
instructions.  First, a party appealing a jury charge has the burden of
establishing that the charge was both erroneous and prejudicial.  Sachse v.
Lumley, 147 Vt. 584, 588, 524 A.2d 599, 601 (1987).  Second, the trial court
has the duty to instruct the jury fully and correctly upon every point
raised by the evidence that is material to the decision of the case.  Id.
But "the court is not required to make every comment that conceivably could
be made on the issues and evidence.  The degree to which the court is to
elaborate on the points charged lies within the sound exercise of its
discretion."  Currier v. Letourneau, 135 Vt. 196, 204, 373 A.2d 521, 527
(1977).  Finally, in determining the propriety of an instruction, the charge
must be considered as a whole with an eye to its general content, and not
piecemeal in isolated segments.  Paton v. Sawyer, 134 Vt. 598, 600, 370 A.2d 215, 216 (1976); Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 396, 264 A.2d 796, 801 (1970).
                                    A.
     Plaintiffs allege that the trial court's failure to state specifically
that more than one proximate cause is possible confused the jury into
believing that a finding of contributory negligence on the part of the
driver automatically absolved the railroad of any liability toward the
passengers.  We disagree.
     The pertinent part of the charge read as follows:
               This trial involves four separate lawsuits.  They
          have been tried together as much of the evidence is
          relevant to all cases, however, each case does present
          different facts and different issues in determining
          liability and damages.  For this reason I shall briefly
          summarize the claims common to all the cases and then
          the different damages sought by each plaintiff.
               . . . .
               The first question that you must answer is whether
          or not the defendant Railroad was negligent in the
          manner in which it warned motorists of the approach of a
          train at the Jonesville crossing on February 4, 1978?
               The second question you must answer is[,] if you
          have found that the Railroad was negligent in warning
          motorists[,] was that negligence a proximate cause of
          the accident which occurred on February 4, 1978?
               I would suggest that you answer these first two
          questions before you consider any other issues in the
          case.  If you decide either of these questions in favor
          of the railroad then your deliberations will be over and
          your verdict must be for the defendant.  If, however,
          you decide that the Railroad was negligent and that that
          negligence was a proximate cause of the accident then
          you will proceed to decide the issues raised by each of
          the cases.  If you reach a consideration of the
          individual cases I would suggest that you consider them
          individually even though some of them involve similar
          issues of law.  I would suggest that you first consider
          the case involving the estate of David Mobbs.
               . . . .
               If you find that David Mobbs was not negligent or
          if he was that that negligence was not a proximate cause
          of the accident then you should proceed to determine the
          damages resulting from the death of David Mobbs. . . .
               When you consider the other three cases other than
          David Mobbs' case you should not consider any negligence
          of David Mobbs, the driver, in determining what damages
          you should award.
At another point in the charge, the judge instructed:
          If you find that the defendant was negligent and that
          that negligence was a proximate cause of the accident,
          then you should consider what damages resulted to [the
          passengers] without regard to any negligence you may
          find on the part of [the driver].
     We believe that this charge correctly and unambiguously apprised the
jury of its duty to consider the varying legal relationships in the four
cases.  Although the court did not specifically tell the jury that more than
one proximate cause was possible, the use of the indefinite article "a"
rather than the definite article "the" in the context of the charge's
overall directive made it plain that more than one proximate cause of the
accident was possible.  See Gibson v. Erie-Lackawanna Railroad Co., 378 F.2d 476, 479 (6th Cir. 1967) (jury instructions using term "the proximate cause"
incorrectly suggested that only single cause of accident was possible)
(emphasis in original); Stemler v. Burke, 344 F.2d  at 396-97 (where issue
was concurrent proximate cause, there was a "material legal distinction
between the words 'the proximate cause' and 'a proximate cause'" -- use of
words 'a proximate cause' recognizes legal principle that there may be more
than one proximate cause); cf. Johnson v. State, 636 P.2d 47, 63 (Alaska
1981) (instruction stating that "a" proximate cause is a cause which
produces injury adequately conveyed concept that liability attaches upon any
one proximate cause).  In addition, we note that plaintiff's counsel
directly stated without objection during closing argument that there can be
more than one proximate cause of an accident, and that the railroad could be
held liable for injuries sustained by the passengers despite any driver
negligence.
     Plaintiffs claim that the court erred by telling the jury that it
should not consider any negligence on the part of the driver "in determining
what damages [it] should award."  Plaintiffs contend that the court should
have told the jury not to consider the driver's negligence in determining
whether the defendant was liable to the passengers.  The trial court's
statement, even if technically erroneous, was harmless.  For the jury to
have reached the interrogatories concerning damages to the passengers, the
causal negligence of the railroad would have to have been established by it
in prior interrogatories.  Thus, liability was a proper assumption.
     Plaintiffs further contend that the trial court erred by not explicitly
stating that the driver could recover damages from CVR even if the driver
was negligent and his negligence was part of the cause of the accident, as
long as the driver's negligence was less than that of CVR.  Assuming
arguendo that this omission constituted error, it certainly was harmless
here in light of the fact that the jury specifically found that CVR's
negligence did not cause the accident.
     In brief, the trial court's charge in reference to proximate cause
adequately conveyed the principle that the passengers could recover from
defendant even if the driver's causal negligence was great and CVR's causal
negligence was relatively minor.
                                    B.
     Plaintiffs next allege that the court's charge regarding the duty of a
motorist when approaching a train crossing was tantamount to a directed
verdict.  Again, we disagree.
     The relevant portions of the charge read as follows:
               Motorists are also held to the standard of care of
          a reasonably prudent person; however, experience has led
          the court to adopt and the legislature to enact certain
          rules applicable to this case which you may consider as
          factors on the question of the negligence of the
          railroad and David Mobbs.
               . . . . [duties of railroad omitted]
               A driver approaching a railroad grade crossing
          shall stop within fifty feet of but not nearer than
          fifteen feet from the nearest rail of the railroad and
          may not proceed until he can do so safely when an
          electric or mechanical signal device gives warning of
          the immediate approach of a railroad train, a railroad
          train approaching within eighty rods, or 1,320 feet of a
          highway crossing emits a signal audible from that
          distance and the train by reason of its speed or
          nearness is an immediate hazard or a railroad train is
          plainly visible and is in hazardous proximity to or is
          at the crossing.
               When a motorist is temporarily blinded, it is his
          duty either to stop until his vision is restored or to
          reduce his speed and have his car under such control
          that he can stop it immediately, and his failure to do
          so justifies a charge of negligence by failing to take
          measures for his safety and that of others.  He has no
          right to drive along in a blinded condition and take a
          chance on what may be in the road ahead.
               The operator of a motor vehicle has a duty to have
          his vehicle under reasonable control so as to avoid
          injury which requires that the speed of the vehicle be
          reasonable under all circumstances, having regard for
          the actual and potential hazards then existing.  The
          extent of control is the ability to stop as quickly and
          easily as circumstances may reasonably be expected to
          require, and when the result is not accomplished the
          inference is obvious that the vehicle was going too fast
          or that a proper effort to control it was not made by
          the driver.
               The driver of every vehicle shall drive at an
          appropriate reduced speed when a special hazard exists.
               The operator of a motor vehicle is chargeable with
          knowledge of objects in plain view.  The duty to keep a
          proper lookout not only requires that a person look but
          that he see what is within the range of his effective
          vision and it cannot avail a party to say that he looked
          but did not see where the object is in plain view.
               A prudent driver approaching a grade crossing must
          look and listen for trains.  If his view is obstructed
          it is his duty to make vigilant use of his hearing.  The
          driver is presumed to have heard whatever there was to
          be heard if he listened.  His failure to hear the horn
          indicates that he did not exercise his hearing with
          reasonable diligence.
               The maintenance of a railroad across a public
          highway is notice to all the world that trains are
          likely to be running on it and a driver cannot escape
          his duty of care by assuming that the track will be
          clear.
               Now, those are the statutory and case law rules
          that have been established in addition to the reasonable
          care or prudent man doctrine.
               If you find that either party violated any of these
          rules you may consider that fact in determining whether
          or not that party was negligent.
     These instructions are a correct statement of the law.  In Starr's
Transportation, Inc. v. St. Johnsbury & L.C.R.R., 123 Vt. 376, 189 A.2d 525
(1963), this Court affirmed a directed verdict for the defendant railroad in
a case in which a truck driver drove his rig into an oncoming train.  The
truck driver claimed that he neither saw nor heard the train because his
view was obstructed and his windows were rolled up.  In response, we held as
follows:
               It was the duty of the driver to look and listen
          for approaching trains as he neared the crossing until
          the last moment when the discovery of the train would
          have availed for his protection.  He was chargeable with
          such knowledge of the approach of the train as he might
          have obtained by such vigilant use of his senses as a
          careful and prudent person would make in such
          circumstances.  Where his vision was obstructed, he
          should have been especially vigilant as regards his
          hearing.
               . . . .
               . . . The driver stated he heard no horn, yet
          another witness put on by the plaintiff testified that
          he heard the horn blown more than once.  Since the
          driver must be presumed to have heard whatever there was
          to be heard, if he listened, his failure to hear the
          horn indicates that he did not exercise his hearing with
          reasonable diligence.
               . . . .
               . . . [T]he very maintenance of a railroad across a
          public highway is notice to all the world that trains
          are likely to be run thereon; the traveler cannot escape
          the duty of due care by assuming the track will be
          clear.
Id. at 380-81, 189 A.2d  at 528; see also Baldwin v. Vermont Ry., 126 Vt.
70, 74, 223 A.2d 556, 560 (1966) (quoting same language from Starr's
Transportation).
     These principles are applicable to the instant case.  Assuming this was
not an instance where he attempted to "beat" the train, the driver, for
whatever reasons -- the rolled-up windows, the turned-on heater, the glare
from the sun and snow, or the limited view of the tracks -- apparently did
not hear or see the oncoming train.  Witnesses testified, however, that the
train did indeed blow its horn more than once and that they heard the horn
sound its warning; other witnesses testified that they saw the lights
flashing at the crossing.  Thus, the charge regarding the driver's duties
was proper.  We also note that the use of "his" and "he" in the charge
referred to "the prudent driver" and not David Mobbs; the court did not
direct the jury to find David Mobbs contributorily negligent.
                                    C.
     Finally, in regard to the jury charge, plaintiffs contend that the
instructions as a whole did not "breathe 'the true spirit and doctrine of
the law.'"  See Choiniere v. Sulikowski, 126 Vt. 274, 277, 229 A.2d 305, 307
(1967) (quoting In re Moxley's Will, 103 Vt. 100, 114, 152 A. 713, 718
(1930)).  Choiniere stands for the principle "that error is not to be read
into the charge by isolating small segments of it," but by looking at the
charge as a whole.  Id.  Based on the two excerpts of the charge quoted
above, from which the great majority of plaintiffs' assignments of error
arise, we believe that the trial court provided the jury with an appropriate
summary of the law of this state regarding proximate cause and a motorist's
duties when approaching a grade crossing.  The court's instructions clearly
stated that the passengers could be awarded damages even if the driver's
negligence precluded him from collecting damages, and that a motorist cannot
avoid liability for an accident by claiming that he did not see or hear that
which evidence shows was plain to see or hear.  Considering the facts of
this case as developed at trial, the essence of the charge was a fair
statement of the law and the trial court did not abuse its discretion in
choosing the particular language that it did.
                                    IV.
     Plaintiffs next claim that the trial court erred in its evidentiary
rulings regarding (1) methods of preventing the accident, (2) accidents at
Jonesville and at other crossings, (3) the driver's failure to use a seat
belt, (4) defendant's admission that the train was travelling over the
speed limit, (5) the railroad's use of certain lenses in flashing lights,
and (6) an instruction manual for the flashing lights at the Jonesville
crossing.  None of the court's rulings constitute reversible error.
                                    A.
     Plaintiffs' contention that the trial court excluded evidence regarding
possible methods of preventing the accident is misleading.  As the following
excerpts from a long, involved dialogue between the court and plaintiffs'
attorney indicate, the court merely ruled that plaintiffs would not be
permitted to present conclusive expert testimony stating that one or another
method would necessarily have prevented the accident:
          THE COURT:  It's certainly pertinent and relevant . . .
          to show that it was negligent for the railroad not to
          have the [crossing gate] there at the time [of the
          accident], but you cannot discuss it in terms of
          preventing the accident because there is no way on God's
          earth that anybody can say that a . . . gate would have
          prevented an accident.
               . . . .
          MR. KOHN:  All I want to be able to do is say that the
          railroad should have had a gate at this crossing, and
          that the jury in its discretion should have decided --

          THE COURT: Listen, I have no problem with that, and I
          have never had a problem with that. . . . You're
          entitled to present evidence by an expert that a gate
          was a necessary thing, that it was negligent not to have
          a gate.
               . . . .
          [T]he expert can buttress his opinion that a gate should
          have been there, that it was negligent for it not [to
          be] there, by showing the statistics [on which his
          opinion is based].

          MR. KOHN:  So we can say that gates reduce the risk of
          accidents at railroad crossings in our case.

          THE COURT:  You can say . . . [a] gate at this railroad
          crossing . . . [w]ould have reduced the accident
          potential.

          MR. KOHN:  [The expert] says . . . that there is a high
          probability that this accident would not have occurred
          if there were a gate at the crossing.

          THE COURT:  That's a little different than what we were
          talking about before.

          MR. KOHN:  Okay.
     It was not an abuse of the trial court's discretion to preclude
plaintiffs' expert from concluding that the accident would not have occurred
had a crossing gate been put up at the Jonesville crossing.  The jury was
repeatedly informed both by the court and by plaintiffs' counsel of
plaintiffs' claim that CVR was negligent in not installing a gate at the
Jonesville crossing.  Further, plaintiffs' expert traffic engineer testified
at trial that the warning system at the crossing was unsafe and inadequate
to warn the driver and that the installation of gates reduces by two-thirds
the number of accidents at crossings that previously had only flashing
lights.  Based on this evidence, the jury could have found, but declined to
find, that the failure of CVR to install a gate was a proximate cause of the
accident.
                                    B.
     Plaintiffs contend that the trial court erred by allowing CVR to
introduce evidence about the accident history at the Jonesville crossing
while prohibiting them from presenting evidence about the accident history
at other grade crossings.  We agree with the trial court that evidence of
the accident history at other grade crossings is irrelevant and remote
because evidence of this nature pertains to CVR's duty toward other
motorists rather than the proximate cause of the instant accident.
Apparently, plaintiffs contend that evidence of accidents at other crossings
having flashing lights but no gates could have affected the jury's
determination that CVR's negligence did not cause the accident.  We
disagree.  The jury was well-informed of plaintiffs' theory regarding
crossings without gates and in fact heard expert testimony that gates reduce
the risk of accident.  Moreover, the jury did find that CVR was negligent.
We are unable to conclude that the court abused its discretion by ruling
that evidence of accidents at other crossings was too remote.  See State v.
Shaw, 149 Vt. 275, 278, 542 A.2d 1106, 1107 (1987) (rulings on remoteness
lie within trial court's discretion).   Any evidence of accidents at other
crossings is too attenuated to support a finding of proximate cause herein.
     For the same reason, we reject plaintiffs' argument that the trial
court abused its discretion by excluding evidence of accidents that occurred
at the Richmond crossing before its lights were moved from Richmond to
Jonesville in 1961.  Even though the light fixtures would have been
identical, the physical surroundings of the two sites were not so similar
that the court's decision was an abuse of discretion.
     Plaintiffs also contend that the trial court erred when it allowed
defendant to present evidence that no prior accidents had occurred at the
Jonesville crossing.  Generally, when the party seeking admission of the
evidence can show substantial similarity of conditions, evidence of no prior
accidents is admissible to show "(1) absence of the defect or condition
alleged, (2) the lack of a causal relationship between the injury and the
defect or condition charged, (3) the nonexistence of an unduly dangerous
situation, or (4) want of knowledge (or grounds to realize) the danger."
E. Cleary, McCormick On Evidence { 200, at 590-92 (3d ed. 1984); e.g.,
Wollaston v. Burlington Northern, Inc., 612 P.2d 1277, 1282, 188 Mont. 192,
202 (1980) (evidence of whether there had been prior accidents at grade
crossing was relevant to issue of whether additional protection was required
at crossing).  Further, when the prior safety record is so extensive that it
is sure to include an adequate number of similar situations, the similarity
requirement is satisfied.  Id. at 591; see Erickson v. Walgreen Drug Co.,
120 Utah 31, 40-41, 232 P.2d 210, 214-15 (1951) (error to exclude evidence
that no one had slipped on terrazzo entranceway, regardless of weather
conditions, for the fifteen years during which at least 4,000 persons had
entered store every day); Stark v. Allis-Chalmers, 2 Wash. App. 399, 406,
467 P.2d 854, 858 (1970) (no abuse of discretion in admission of evidence
that there had been no similar accident with 10,000 other tractor loaders of
the same model); Stein v. Trans World Airlines, 25 A.D.2d 732, 732, 268 N.Y.S.2d 752, 752-53 (1966) (error to exclude evidence that many thousands
had walked through the same area in air terminal without slipping).  The
safety record admitted in the instant case is extensive enough to satisfy
the substantial-similarity requirement; thus, the court did not abuse its
discretion by admitting the accident history of the Jonesville crossing.
Plaintiffs' claim of error is not supported by Lucia v. Meech, 68 Vt. 175,
179, 34 A. 695, 695-96 (1896), where this Court affirmed the exclusion of
evidence showing that no other animals had escaped through the fence the
defendant bailee had been hired to maintain.  The proffered evidence in that
case was not so extensive as to assure an adequate number of similar
situations.
                                    C.
     We need not address in length plaintiffs' contention that the court
improperly allowed defendant to offer evidence of the driver's failure to
wear a seat belt as an indication of his negligent behavior.  Plaintiffs
contend that V.R.E. 404(a) (FN4) and case law preclude the court from admitting
evidence that Mr. Mobbs was not wearing a seat belt.  Yet, this evidence is
manifestly not character evidence, nor was it presented to the jury as such;
therefore, V.R.E. 404(a) does not govern.  In any case, the contention that
the jury may have declined to find that CVR's negligence caused the accident
because of the driver's failure to wear a seat belt is without merit; the
question of whether the driver wore a seat belt does not affect the issue of
proximate cause.
                                    D.
     Plaintiffs further contend that the court erred by excluding a
document written by defendant's investigator based on a consultant's
report, which estimated that the train was travelling at a speed of forty-
five miles per hour rather than the forty miles per hour estimated by the
train's conductor.   The consultant was not an employee of CVR and did not
appear at trial.  Accordingly, the trial court excluded the document as
hearsay, noting that it was not an admission because CVR had submitted the
document during discovery with the contention that the consultant had made
an incorrect assumption regarding the information on which the calculation
of the train's speed was based.  The exclusion of this document was not an
abuse of the trial court's discretion.  In any event, whether the train was
travelling at forty miles per hour or forty-five miles per hour is
immaterial to the issue of proximate cause in this case; it is plain from
the record that the train would not have been able to stop at either speed.

                                    E.
     Plaintiffs also contend the trial court abused its discretion (1) when
it excluded certain portions of a deposition that indicated that CVR
normally followed Canadian National Railway recommendations with respect to
types of lenses in flashing lights, and (2) when it excluded an instruction
manual on the flashing lights despite the fact that defendant used the
manual in cross-examining plaintiffs' expert.  In both cases, even assuming
the trial court erred in excluding the evidence, the error was harmless.  In
the first instance, other portions of the deposition adequately conveyed to
the jury the fact that the Jonesville crossing lights had lenses offering a
narrower range of light than those used at most crossings.  In the second
instance, the trial court's belief that the manual was confusing and complex
was reasonable, particularly in light of the manual's vagueness regarding
when wider lenses are to be employed.  In any event, CVR was not required
to follow the manual's recommendations.  We will not disturb the trial
court's decision to exclude the evidence in either instance.
                                    V.
     Finally, plaintiffs ask us to hold railroad companies strictly liable
for all accidents at public crossings or, at a minimum, to consider the
failure to install crossing gates prima facie evidence of a railroad's
negligence.  We decline to follow either of these suggestions.
     We note initially that no state in this country has held that strict
liability should apply in such situations.  See, e.g., Ruiz v. Southern
Pacific Transp. Co., 97 N.M. 194, 199-201, 638 P.2d 406, 411-13 (N.M. Ct.
App. 1981).  Historically, this Court has been reluctant to invoke the
doctrine of strict liability.  Not until Malloy v. Lane Construction Corp.,
123 Vt. 500, 503, 194 A.2d 398, 400 (1963) did we first employ the doctrine,
concluding that damages occurring as the foreseeable consequence of an
extra-hazardous operation -- in that case, a blasting operation -- will
subject the actor to liability, even in the absence of negligence.  But in
Bosley v. Central Vt. Public Serv. Corp., 127 Vt. 581, 582-85, 255 A.2d 671,
672-74 (1969) we declined to apply the doctrine of strict liability to
accidents involving electric transmission lines.  An implied basis of that
decision was that electricity had become a necessary part of everyday life,
and that its usefulness should not lightly be impaired or curtailed by
application of the doctrine of strict liability to accidents involving
electric power lines.  Id. at 584, 255 A.2d  at 673.
     A similar analysis is applicable in the instant case.  While railroads
may not be as common or as socially and economically vital as they once
were, they are still a common mode of transportation and an important
element of the socio-economic fabric of the state.  Although trains and
grade crossings are dangerous, we cannot conclude that they constitute an
"abnormally dangerous activity" such as to warrant judicial imposition of
the doctrine of strict liability to all accidents at railroad crossings
where gates have not been installed.  The record is devoid of any compelling
support for the application of the doctrine of strict liability in the
instant case.
     Because we affirm the jury's decision, we need not address the issue of
whether the trial court order striking the nonpossessory attachment against
CVR should be reversed.
     Affirmed.




                              FOR THE COURT:

                              ____________________________________________
                              Associate Justice







FN1.    Brinks v. Chesapeake & O. Ry., 295 F. Supp. 1318 (W.D. Mich. 1969)
is plainly inapposite.  In Brinks, the court required a separate trial of
the defendant railway's third-party complaint for contribution against the
estate of the driver on the grounds that the issues in the third-party
action were distinct from the issues in the primary action and that
resolution of the primary action might obviate the third-party action.  Id.
at 1321.

FN2.    We disagree with defendant's contention that the use of the term
"consolidate" in the federal case law under discussion refers to an issue
distinct from the issue at hand in the instant action.  Both the federal and
the Vermont versions of Rule 42 refer separately to "joint trials" and
"consolidation."  The Vermont rule requires that "consolidation" be with the
consent of the parties.  Although the term "consolidation" may have more
than one meaning, the federal courts have not construed the term to permit
the merger of suits in a single cause of action. See Johnson v. Manhattan
Ry., 289 U.S. 479, 496-97 (1933); Albert v. Maine Central Ry., 898 F.2d 5, 7
(1990); Ivanov-McPhee v. Washington Nat'l Ins. Co., 719 F.2d 927, 928-30
(7th Cir. 1983).  Consequently, the use of the term "consolidate" in the
federal case law under discussion is equivalent to the use of the term
"joint" in the instant case.

FN3.     The issue of who drove the car was not seriousy contested at trial.

FN4.     V.R.E. 404(a) provides that "[e]vidence of a person's character or a
trait of his character is not admissible for the purpose of proving that he
acted in conformity therewith on a particular occasion . . . ."