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Whaley v. CSX Transportation2/2/2005
ecord, we find that this issue is not preserved for review. See Holy Loch Distributors, Inc. v. Hitchcock, 340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000) (to preserve an issue for appellate review, the issue must have been raised to and ruled upon by the trial court).
CSX argues that the trial court erred in allowing Drs. Shealy, Waheed, and Collins to testify as to causation. But there is no evidence in the record that CSX objected, at all, to the testimony of Drs. Shealy and Waheed during trial. CSX did, however, object to Dr. Collins's testimony, on the basis that it did not meet the standard of reliability. But this objection was apparently raised and ruled upon in a side bar, and the contents of the side bar are not part of the record. Moreover, when counsel attempted to put the contents of the side bar on the record, the trial judge interrupted to explain that the objection had been overruled in the side bar, not because the judge thought the testimony met the standard of reliability, but because counsel failed to lay a foundation for the objection. Therefore, the trial court did not rule upon the issue now raised by CSX in this appeal. For these reasons, we find that this issue is not preserved for review.
V. Other Evidence
CSX argues that the trial court erred in admitting evidence of other employee complaints about the temperature in locomotives. CSX also argues that the trial court erred in admitting evidence about fans, air conditioners, and white-painted roofs on other locomotives. We agree.
Evidence of similar accidents, transactions, or happenings is admissible in South Carolina where there is some special relation between them tending to prove or disprove some fact in dispute. Brewer v. Morris, 269 S.C. 607, 610, 239 S.E.2d 318, 319 (1977). This rule, which governs the admissibility of prior accidents, transactions, or happenings, is based on "relevancy, logic, and common sense." Id. Because evidence of other accidents may be highly prejudicial, " plaintiff must present a factual foundation for the court to determine that the other accidents were 'substantially similar' to the accident at issue." Buckman v. Bombardier Corp., 893 F. Supp. 547, 552 (E.D.N.C. 1995).
Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, SCRE. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, SCRE. The admission of evidence is within the trial judge's discretion and his decision will not be reversed absent an abuse of discretion. State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002).
In the present case, the trial judge permitted Whaley to submit evidence that, between 1984 and 2000, CSX had received ninety-seven employee complaints about heat. In addition, the trial judge permitted Whaley to introduce evidence that, between 1993 and 2000, eighteen CSX employees had suffered heat stroke. Finally, the judge allowed Whaley to introduce letters written to CSX by union officials complaining about heat.
We hold that this evidence should not have been admitted. Whaley did not establish that the reported complaints and injuries stemmed from the same or similar circumstances as his injuries. Because Whaley did not establish that the other employees were injured under similar circumstances, much less under substantially similar circum
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