CSX Transp. (Appellant)
At about 6:00 p.m. on March 11, 1990, Greg Jewell was driving
his pickup truck west on Anthouston-Frog Island Road with his
wife Sheila Jewell, and his six-year old daughter Brittney
As his truck crossed the tracks it was struck by a southbound
CSX train which approached the crossing from Greg Jewell's
All three passengers were thrown from the truck. Greg Jewell was
killed and his wife and daughter were injured.
They alleged that CSX was negligent in failing to sound a
warning as the train approached the crossing, that the train
crew failed to exercise ordinary care in the operation of the
train and that the subject crossing was extra-hazardous.
Motion in Limine
Pl wanted to exclude testimony regarding
statements made by Brittney
conversation alleged argument between Greg and Sheila
immediately before the collision.
When she told him a train was coming, she was told to be quiet.
Directed verdict in favor of CSX on the issue of the
The jury returned a verdict in favor of CSX.
Appellants contend Trial court erred in admitting statement
The trial court committed reversible error by admitting
statements made by Brittney Jewell regarding an alleged argument
between Greg and Sheila Jewell immediately before the collision.
Trial Court Denied motion in limine and admitted the admission
The trial court denied the motion and admitted the evidence
under the party admission exception to the hearsay rule. Fed. R.
CSX Introduced 6 witness
At trial CSX introduced testimony from
six witnesses that
Brittney told them
[6 witnesses] that Greg and
Sheila had been arguing immediately prior to the accident,
and that when she told them a train was coming, she was told to
Appellants Said Brittney had brain damage (Unreliable)
Appellants offered evidence that Brittney suffered permanent
[**11] brain damage as a result of the accident.
No Memory of accident
Her physicians testified that she had retrograde amnesia and had
no memory of the accident.
Tendency to grasp on to anything
They also testified that patients recovering from a coma have a
tendency to grasp onto anything they hear to supplement their
Jewell - May be Brittney overheard speculation for family
They offered testimony from family members that Brittney may
have overheard their conversations where they speculated about
the cause of the accident, including the possibility of an
argument between Greg and Sheila.
Brittney told simultaneous inaccurate statements
Even those Brittney told about the argument testified that she
simultaneously made statements about the accident that were
Provides that a statement is not hearsay if the statement is
offered against a party and is "the party's own statement in
either an individual or representative capacity." Fed. R. Evid.
Jewell Brittanys statement were not
made in her individual
Appellants contend that because Brittney suffered brain damage
and has no "independent" recollection of the accident, her
statements about the argument were not made in her "individual"
Lacks logical consistency
They have confused the terms "independent" and "individual."
"Independent" and "individual" are not synonymous.
Brittney was the source of the statements.
She made the statements in her individual capacity,
whether or not she had an independent recollection of the
matters she spoke about.
Trustworthiness is not a separate requirement for admission
under Rule 801(d)(2)(A)
The admissibility of statements of a party-opponent is grounded
not in the presumed trustworthiness of the statements, but on "a
kind of estoppel or waiver theory, that
a party should be entitled to
rely on his opponent's statements."
Adversary System rather than hearsay rule
Admissions by a party-opponent are excluded from the category of
hearsay "on the theory that their admissibility in evidence is
the result of the adversary system rather than satisfaction of
the conditions of the hearsay rule." Evid. 801 advisory
No guarantee of trustworthiness is required in the case of an
The freedom which admissions have enjoyed from technical demands
of searching for an assurance of trustworthiness in some
against-interest circumstance, and from the restrictive
influences of the opinion rule and the rule requiring firsthand
knowledge, when taken with the apparently prevalent satisfaction
with the results, calls for
generous treatment of this avenue to admissibility.