588 F.2d 551 (1978)
Early in the evening of June 7, 1973, a 1968 Plymouth Valiant automobile traveling southbound on State Route 4 collided with a Ford semi-tractor truck traveling westbound on U.S. Route 20 at their intersection, killing four occupants of the Valiant and seriously injuring the fifth, Cindy A. Baker, while the truck driver sustained no serious injuries.1 The intersection was controlled by a traffic light, and the Valiant occupants were returning home from a high school outing.2
Joseph L. Slabach, the truck driver, was returning home after making a delivery for his employer, Elcona Homes Corporation, and was operating the truck in the course of his employment.3 Administrators of the estates of the four deceased passengers filed complaints invoking the diversity jurisdiction of the district court.4 Those actions were consolidated for trial with a similar complaint brought on behalf of the seriously injured passenger Cindy Baker.5 The defendants were Slabach and Elcona Homes Corporation.6
The plaintiffs' causes of action were based on the alleged negligence of Slabach, with the primary factual issue being which vehicle had the right-of-way at the time it entered the intersection.7 Slabach testified that he could not see the light because he was blinded by the sun, and Baker had no recollection of the accident, so there was no direct eyewitness testimony and the jury's resolution depended upon circumstantial evidence.8
Sgt. John N. Hendrickson, a twenty-eight-year veteran of the Ohio State Highway Patrol serving as assistant post commander at the Norwalk Post, was on duty when the accident occurred and arrived at the scene approximately six minutes after the collision upon receiving the accident report.9 Hendrickson investigated the scene, took measurements, prepared a diagram using vector analysis, visited Slabach at the hospital, and recorded a statement from him describing the location and speed of the Valiant when first observed.10 The resulting police accident report included Hendrickson's observation that the Valiant entered the intersection against a red light, checked boxes indicating the Valiant failed to yield the right-of-way and that both drivers were preoccupied, and incorporated Slabach's statement.11
At trial, the defense called Hendrickson as a witness after the plaintiffs had subpoenaed but not called him; he testified at length about the physical circumstances, refreshed his recollection from the report, and was qualified as an expert in accident reconstruction.12 After Hendrickson left the stand, the defense introduced the police accident report into evidence over the plaintiffs' hearsay objection, particularly objecting to Slabach's recorded statement and Hendrickson's notations concerning fault.13 Slabach had been called for cross-examination by the plaintiffs in their case-in-chief and was vigorously questioned about his recollection of the accident, particularly concerning when he had first seen the Valiant.14 The jury returned a judgment in favor of the defendants.15
The plaintiffs appealed to the United States Court of Appeals for the Sixth Circuit from the district court's judgment, raising challenges to the admission of the accident report and related testimony, the denial of a directed verdict, the jury instructions on causation, and the sufficiency of the evidence supporting the verdict.16
Whether the police accident report was admissible under Fed.R.Evid. 803(8)?17
Fed.R.Evid. 803(8) provides that records, reports, statements, or data compilations of public offices or agencies setting forth matters observed pursuant to duty imposed by law as to which there was a duty to report or factual findings resulting from an investigation made pursuant to authority granted by law are admissible in civil actions and proceedings unless the sources of information or other circumstances indicate lack of trustworthiness.18 The rule assumes admissibility in the first instance with the burden on the opponent to demonstrate lack of trustworthiness through factors such as timeliness of the investigation, special skill or experience of the official, whether a hearing was held, and possible motivational problems.19
Yes. Sgt. Hendrickson arrived at the accident scene approximately six minutes after the collision.20 He prepared the report as part of his official duties under Ohio Rev.Code Ann. § 5503.02 while serving as a twenty-eight-year veteran assistant post commander.21
His notation that the Valiant entered the intersection against a red light constitutes a factual finding admissible under Rule 803(8)(C).22 It resulted from an investigation authorized by law, consistent with the liberal construction applied to evaluative findings in United States v. School District of Ferndale, Michigan.23 The report satisfied the trustworthiness factors because the investigation began immediately.24 Hendrickson possessed extensive experience in accident reconstruction including vector analysis.25 No formal hearing was required when other indicia of reliability existed.26 Hendrickson demonstrated complete independence from the parties with no improper motive.27
Slabach's recorded statement was separately admissible under Rule 801(d)(1)(B) as a prior consistent statement. It was offered to rebut the implication of recent fabrication arising from plaintiffs' vigorous cross-examination of Slabach in their case-in-chief concerning when he first observed the Valiant.28
The police accident report was properly admitted into evidence under Fed.R.Evid. 803(8).29
Whether testimony that no traffic citation was issued to Slabach was admissible?30
Evidence is relevant under Fed.R.Evid. 401 if it has any tendency to make a fact of consequence more or less probable, but may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice.31 Even if evidence is improperly admitted, reversal is not required when the error is harmless because it had no substantial effect on the jury's verdict in light of other properly admitted evidence.32
No. The district court permitted defense counsel to elicit from Sgt. Hendrickson that no traffic citation was issued to Slabach.33 The opinion did not reach the question of relevance or prejudice.34 The properly admitted factual finding that the Valiant entered against a red light necessarily implied to the jury that Hendrickson would not have cited Slabach.35 The non-citation testimony therefore added no new or prejudicial information beyond what the jury already knew from the accident report itself.36
Any error in admitting testimony that no traffic citation was issued to Slabach was harmless.37
Whether the defendants were entitled to a directed verdict because Slabach was negligent as a matter of law?38
When conflicting evidence or permissible inferences exist on a material issue such as negligence, the question must be submitted to the jury.39
No. Slabach testified that he could not see the color of the traffic light because he was blinded by the sun.40 Yet the driver of another truck that had proceeded through the same intersection shortly before Slabach gave similar testimony about difficulty seeing the light due to its location.41 This evidence, combined with Sgt. Hendrickson's notations concerning possible driver preoccupation for both vehicles and the overall circumstantial nature of the proof, created a genuine issue of fact regarding whether Slabach exercised reasonable care under the circumstances.42
The defendants were not entitled to a directed verdict on the issue of Slabach's negligence.43
Whether the district court's jury instruction requiring proof that the defendant's actions were the sole cause of the accident was erroneous under Ohio law?44
Under Ohio law, passengers may recover when both drivers are concurrently negligent because the negligence of the plaintiffs' driver is not imputable to the passengers.45 An instruction requiring proof that the defendant's negligence was the sole proximate cause is therefore erroneous, although any error may be cured by a supplemental instruction that correctly states the law on concurrent negligence and non-imputation.46
Yes. The trial judge initially instructed the jury that plaintiffs had the burden of proving the defendant's actions were the sole cause of the accident.47 This misstated Ohio law as set forth in Arrasmith v. Pennsylvania Railroad Co.48 Canterbury v. Pennsylvania Railroad Co. likewise sets forth the rule.49 The only factual scenario in which both drivers could have been negligent was if they entered the intersection during the one-second interval when the light was red for all directions.50
At the conclusion of the charge, the court specifically instructed the jury that in such a case the negligence of the Valiant driver could not be imputed to the passengers.51 The jury must find for the plaintiffs if both drivers entered during that interval.52
The initial instruction was erroneous but was adequately cured by the supplemental instruction.53
Whether the judgment in favor of the defendants was against the manifest weight of the evidence?54
When the case rests primarily on circumstantial evidence and the jury could rationally conclude that the plaintiffs failed to meet their burden of proof, the verdict must stand.55
No. The case turned entirely on circumstantial evidence because neither Slabach nor Baker could provide direct testimony about the color of the light.56 The jury was required to weigh the police report, vector analysis, physical measurements, and testimony from other witnesses.57 After a fair trial, in which the district court's evidentiary rulings were balanced, and counsel for both sides performed skillfully, the jury could reasonably have concluded that the plaintiffs had not sustained their burden of proving Slabach's negligence.58
The judgment in favor of the defendants was not against the manifest weight of the evidence.59