184 F.2d 948
CHESAPEAKE & O. RY. CO.v.CHAFFIN.
No. 6142.
United States Court of Appeals. Fourth Circuit.
Argued October 9, 1950.
Decided November 8, 1950.

Amos A. Bolen, Huntington, W. Va. (C. W. Strickling and Fitzpatrick, Strickling, Marshall & Huddleston, all of Huntington, W. Va., on brief), for appellant.
Horace S. Meldahl, Charleston, W. Va., for appellee.
Before SOPER and DOBIE, Circuit Judges, and TIMMERMAN, District Judge.
SOPER, Circuit Judge.

1
Fred Chaffin, a citizen of New York, sued the Chesapeake and Ohio Railway Company, a Virginia corporation, in the District Court for damages for the loss of a leg six inches below the knee which he suffered on November 12, 1947 when he was run over by a work-train in Boone County, West Virginia. The Railway Company defended on the ground (1) that the accident was caused solely by the neglect of Chaffin in walking between the rails of the railroad track at night, and (2) that he had released the Railway Company from liability for the accident by executing a release and accepting the sum of $250 which the Railway Company, while denying all liability, had offered in full settlement of the claim. The case was submitted to the jury on interrogatories which related to these defenses. On the question of neglect of the Railway Company the jury was directed to find whether the engineer, by the exercise of reasonable care, could have stopped the train before it hit the plaintiff after the engineer was able to perceive that the object on the track was probably a person. To this inquiry the jury answered yes. With respect to the release the jury was asked to decide (1) whether the Railway Company misled or attempted to defraud the plaintiff in connection with the release and (2) whether the plaintiff accepted the money with knowledge that he was thereby settling his claim for injuries sustained. In reply the jury answered yes to the first and no to the second question, and fixed the damages at $10,000. The defendant then moved for a judgment notwithstanding the verdict, and in the alternative, for a new trial, but these motions were overruled and judgment for the plaintiff was entered by the court.

2
The grounds of the appeal are that there was no substantial evidence to justify the submission to the jury of any of the interrogatories and that there should have been a directed verdict for the defendant and failing that, the motion of the defendant for a judgment n.o.v. should have been granted.

3
The plaintiff was 44 years of age. He had attended school through the second grade and was able to read and write. For ten or twelve years he had lived in a mining community and had been boss of a crew which maintained the railroad tracks of his employer. Prior to that time he worked for the Norfolk & Western Railway Company in track maintenance. He was not working on the day of the accident, and had spent the afternoon at a pool hall and beer garden where he waited for a friend to bring him a statement of his wages. He drank three or four bottles of beer during the afternoon, and about 6 P. M., after getting the statement, set out for his home one mile away carrying one dozen bottles of beer. He chose to walk in the center of the railroad track between the rails. It was then dark and he was wearing dark clothes. As he proceeded he caught sight of the headlight of an engine shining to his right as the train approached a curve in the road. He then started to step over the rail to his right and leave the track but his right trousers leg caught in a bolt or spike and he was thrown to the ground and knocked unconscious. He knew nothing further until he came to himself in the hospital later in the evening.

4
No one saw the accident but the engineer and the fireman of the train which consisted of an engine, tender and a caboose carrying fifteen men. The engineer and fireman said that the train was running about 20 miles an hour with the headlight burning; and when the train rounded the curve they saw an object on the track 500 or 600 feet away, which did not appear to be large enough to interfere with the operation of the train. Nevertheless they slackened the speed of the train to about 15 miles an hour, and it was not until they were two or three cars away that they concluded that the object upon the track might be a human being. Thereupon the emergency brake was applied and the train stopped 39 feet after it had passed over the plaintiff. Tests of the same train going at the rate of 17 miles an hour, subsequently made by the defendant, indicated that it could be stopped in 233 to 241 feet. The plaintiff introduced expert testimony of engineers which tended to show that such a train traveling at 15 miles an hour could be stopped in 125 to 150 feet and that an object on the track at night might be recognized as a human being at a distance of 200 to 300 feet. The engineer estimated in a pretrial deposition that in an emergency such a train could be stopped in 100 feet.

5
A question is raised as to the instructions of the judge to the jury that it was the duty of the engineer to use reasonable care to stop the train before it hit the plaintiff after the train reached the point where the engineer was able to perceive that the object on the track was probably a man. The contention is made that in West Virginia the rule is that a railroad company owes no duty to a trespasser upon its tracks except not to willfully or wantonly injure him after actually discovering his presence on the tracks, that is to say, after the operators of the train have actual knowledge that the object on the tracks is a human being. See Thore v. Norfolk & Western Ry. Co., 102 W.Va. 446, 135 S.E. 284; Connelly v. Virginian Railway Co., 124 W.Va. 254, 20 S.E.2d 885; Flowers v. Virginian Ry. Co., 135 Va. 367, 116 S.E. 672; 70 A.L.R. 1116; Restatement of Torts, Vol. 2 § 479; Chesapeake & Ohio Ry. Co. v. Craft, 4 Cir., 162 F.2d 67; Middleton v. Norfolk & Western Ry. Co., 4 Cir., 165 F.2d 907; Mast v. Illinois Central R. Co., D.C.N.D.Iowa, 79 F.Supp. 149, 161.

6
It is not necessary, however, to pass on this contention since the evidence clearly shows that the plaintiff executed a valid release whereby the Railway Company was discharged from all liability for damages incurred in the accident. After the occurrence, the plaintiff was taken to the hospital and the next morning his leg was amputated below the knee. He made a good recovery. Five days later and three days before he was released from the hospital a representative of the defendant visited him at the hospital in the course of an investigation, and took a statement from him after being advised that the patient was in proper condition to be interviewed. The plaintiff testified that the agent told him that the Railway Company was not liable to him and owed him nothing by reason of the accident since he was violating the law and was a trespasser on the property of the Railway at the time; but the plaintiff on his part took the position during the interview that he was entirely free from fault. The agent did not offer to pay the plaintiff anything but he gave the plaintiff the name and address of H. B. Persinger, the claim agent of the Railway Company, and he told the plaintiff that if he would write to Persinger the latter would help to buy him an artificial leg. The plaintiff told the agent that such a leg would cost $250.

7
Three weeks later Persinger received a letter from the plaintiff which had been written for him by his nephew. In this letter the plaintiff referred to the accident and the statement of the investigator that if the plaintiff would write to Persinger the Railway Company would pay for an artificial leg. The plaintiff asked what the Railway Company would do for him. On December 18, 1947, the claim agent wrote to the plaintiff that the Railway Company did not think that his injury resulted from any neglect on its part but in view of his request, it submitted an offer of $250 in full and final settlement of the claim. The plaintiff was requested to advise the Railway Company if he wished a voucher sent him for this amount. The plaintiff returned the letter, having written thereon a request to Persinger to send the voucher, and he thanked the Railway Company many times. On December 24, 1947 the Railway Company sent a voucher to the plaintiff for $250 which was stated in the accompanying letter to be in settlement of the claim and the plaintiff was told that the voucher should be signed and witnessed and should then be handled as any other check. The voucher itself contained the statement that it was agreed upon and accepted in full settlement of any and all claims whatsoever growing out of the accident. It was signed by the plaintiff on January 14, 1948 and his signature was witnessed by the signatures of two nephews. The voucher was cashed at the bank on January 16, 1948.

8
This account of the transactions between the parties leading to the acceptance and signing of the voucher by the plaintiff is not disputed. During the trial an attempt was made by plaintiff's attorney to have him testify that he did not read the voucher and did not have any idea that he had released the Railway Company from all liability by using it; but the judge sustained an objection to the testimony and ruled that the papers spoke for themselves. In his charge the judge expressed the opinion that the voucher signed by the plaintiff constituted a full and complete release and the jury were told that "if a person is presented with a paper of that kind and signs it without reading it, he cannot afterwards come in and escape the consequences of signing it by simply saying that he did not read it." This instruction was in accord with the law of West Virginia and the law generally prevailing. See Rutherford v. Rutherford, 55 W.Va. 56, 47 S.E. 240; 45 Am.Jur. Release § 18; 53 C.J. Release § 30.

9
Nevertheless the plaintiff was permitted over objection to testify that when he read the first letter from Persinger of December 18, 1947 offering to pay him $250 in full and final settlement of the claim, he did not think that the $250 was a settlement for the loss of his leg but was to enable him to get an artificial leg; and the questions in respect to the validity of the release hereinbefore described were submitted to the jury. Moreover, the jury were instructed that if the plaintiff was induced by any sort of deception or fraud to agree to take $250, or if the plaintiff was led into a mistake, as a reasonable man might be led into a mistake, and did not know that he was making a settlement of his claim for injuries, then the jury should disregard the release.

10
The evidence did not justify the submission of these issues to the jury. There was nothing upon which a finding of deception or fraud on the part of the defendant could be based. Except for the interview between the investigator and the plaintiff at the hospital on November 17, 1947 there was no personal contact between him and the agents of the Railway Company, but the negotiations consisted entirely of written correspondence that was easily understood and completely devoid of misrepresentation or deceit. Moreover, nothing took place on November 17 to confuse or mystify the plaintiff, who, although untutored, was a man of mature age well acquainted by long experience with the operation of railroad trains and the maintenance of railroad rights of way. The statement of the agent that the Railway had no liability to the plaintiff was no more than an expression of opinion which was not without foundation, under the circumstances of the case. It did not serve to deceive or coerce the plaintiff since he disagreed with the agent and insisted that he was not to blame. The suggestion that the Railway Company might be willing to buy an artificial leg was neither coercive nor deceptive, and thereafter there was no attempt to bring pressure to bear upon the plaintiff or hurry him into the settlement. Three weeks elapsed before he wrote to the company and thereafter three more weeks passed by after he received the voucher before he signed it and cashed it at the bank. In the meantime no attempt was made to see him or overpersuade him, but he was entirely free to consult his friends and relations and make his own decision. There was no promise of additional benefit to accrue to him if he signed the release, as in Irish v. Central Vermont Ry., 2 Cir., 164 F.2d 837, and nothing to indicate mental impairment on the part of the signer of the release, as in Flowers v. Virginian Ry. Co., 135 Va. 367, 116 S.E. 672, upon which cases the plaintiff relies.

11
Under the law of West Virginia, the evidence to overcome the clear and explicit terms of an express release must be strong and convincing. Carroll v. Fetty, 121 W.Va. 215, 219, 2 S.E.2d 521; McCary v. Monongahela Valley Traction Co., 97 W.Va. 306, 125 S.E. 92. In the pending case the evidence of fraud or misrepresentation or mistake is non-existent; and the judgment must be reversed and the case remanded with instructions to enter a judgment for the defendant.

12
Reversed and remanded.


599 F.2d 363
CONTINENTAL OIL COMPANY and Gulf Oil Corporation,Plaintiffs-Appellants,v.AMERICAN QUASAR PETROLEUM CO. OF NEW MEXICO, INC., Defendant-Appellee.
No. 77-2036.
United States Court of Appeals,Tenth Circuit.
Argued March 15, 1979.Decided May 15, 1979.

Houston G. Williams, Casper, Wyo.  (with Richard L. Williams, Casper, Wyo., on the brief), of Wehrli & Williams, Casper, Wyo.  (and with Floyd E. Radloff, Continental Oil Company Counsel, Houston, Tex. and E. S. Hurst, Gulf Oil Corporation Atty., Tulsa, Okl., on the brief), for plaintiffs-appellants.
Glenn Parker of Hirst & Applegate, Cheyenne, Wyo., for defendant-appellee.
Before SETH, Chief Judge, and McKAY and LOGAN, Circuit Judges.
McKAY, Circuit Judge.

1
This diversity case involves the interpretation of an oil and gas farmout agreement.  The matter was decided below on cross-motions for summary judgment.  The undisputed facts need only be summarized here.

2
Under the farmout agreement with Continental Oil Co. and Gulf Oil Corp.  (the farmoutors), American Quasar Petroleum Co.  (Quasar) was required to drill a test well.1  Quasar bore sole responsibility for drilling and equipping the well, unless the well produced oil or gas.  If the well was completed to production, then "the cost of drilling, testing, completing and equipping"2 the well was to be recovered by Quasar from the proceeds of the well's production.

3
Although the farmoutors have formally assigned five different matters as constituting error by the trial court, the essence of the dispute is the proper interpretation of that portion of the farmout agreement defining recoverable "costs."  The instant controversy arose because the parties made no express provision for costs resulting from an unforeseen occurrence.  The occurrence in question was an explosion and fire that ensued when the drilling reached a depth of nearly 13,000 feet.  Quasar had to control the blowout and fire, clean up the site and regain the well's pre-blowout depth.  The cost of the extra and duplicative work exceeded two and one-half million dollars.  Quasar eventually received slightly more than two million dollars from its claim under an insurance policy it held for this purpose.  Quasar claims that all the expenses incurred as a result of the blowout are recoverable from the well's production as a "cost" under the farmout agreement regardless of whether such risks were also covered by insurance.  The farmoutors argue that expenses resulting from the blowout were not a "cost" under the relevant provision of the farmout agreement to the extent they were covered by Quasar's insurance policy.  They contend that allowing Quasar to recover the expenses both under its insurance contract and pursuant to the farmout agreement provision would constitute a windfall amounting to unjust enrichment.

4
While the contract does not expressly provide for the resolution of this particular dispute, we believe the agreement is sufficiently clear for a reasonable resolution and that it fully supports the decision of the trial court in favor of appellee Quasar.  Certain indications of the parties' intent are clear.  First, if the well had been unsuccessful, all costs would have been borne by Quasar and it would have obtained whatever benefit insurance coverage provided.  Second, the contract did not require Quasar to carry any insurance coverage against blowouts.  Third, had the situation been identical to the present one except that Quasar carried no insurance, the "costs" recoverable from production would have been the same as those urged by Quasar on this appeal.  That is, they would have included expenses resulting from the blowout.  Fourth, had there been no blowout, Quasar could not have recovered its blowout insurance premiums as an item of cost.  Fifth, the enormously expensive insurance premiums covered operations in addition to the one involved here and periods of time antedating the drilling of this particular well.

5
These factors support the trial court's conclusion that the parties' agreement did not contemplate reduction of the "costs" otherwise recoverable from the proceeds of the well's production based on obtaining proceeds from this type of insurance.  In addition, we believe that a commonsense approach to the reasonable expectations of the parties would reach the same result.  Since this kind of insurance had not been required by the agreement of the parties and the premiums would not have been a "cost" recoverable by Quasar under the agreement, the method of financing blowout problems was a burden Quasar bore exclusively.  It follows that Quasar should be entitled to the benefits flowing from its choice of method.  Had Quasar determined to deposit the sums it paid as premiums into a bank account labeled "blowout fund" rather than purchasing insurance, no one reasonably would argue that blowout expenses would be unrecoverable from the well's production as a "cost" except to the extent that the expenses exceeded the deposit balance.  The fact that Quasar opted to fund its risk by deposits with an insurance carrier rather than a bank ought not to produce a different result.

6
Finally, we do not agree with the farmoutors that recovery of the blowout expenses from production as a "cost" constitutes a windfall to Quasar to the extent that recovery exceeded the insurance premiums "attributable" to the well.  Such a view ignores the underlying economic realities of the situation.  Quasar did receive insurance proceeds due to this blowout, but Quasar repeatedly pays premiums for such insurance.  It does not recover those premiums as a "cost" from the payout of successful wells drilled without incident.  The insurance premiums are not a cost of drilling any particular well, but are a cost of doing such business generally.  Any windfall actually chargeable to Quasar would be the amount by which all its insurance recoveries from blowouts worldwide exceed the cost of all its insurance premiums over time.  The record does not reveal the extent of this windfall.  Indeed, it may not exist.  Since insurors have found it profitable to provide such insurance to Quasar and farmoutees generally, it is obvious, at least at the industry level, that premiums paid exceed insurance recoveries.  Even if the insurance recovery at issue here returned to Quasar more than it has so far paid out in premiums, over the long run, the economics may be different.  Ultimately, Quasar may receive nothing greater than what it pays for.  In any event, when the parties have not agreed otherwise, it is neither unsound nor inequitable to let the benefit of insurance go where the burden of its cost lies with the farmoutee Quasar.3

7
We conclude that the trial court was correct in holding that Quasar "is entitled to the proceeds of the policy effected by it in its own name to protect its own interests."4  Record, vol. 1, at 145.  We also agree that on the facts of this case the farmoutors show no special equities requiring policy proceeds to be credited against recoverable costs under the agreement.5

8
AFFIRMED.

1
 The original farmoutee was Chaparral Resources, Inc., which delivered the farmouts to American Quasar Petroleum Co. in return for cash, royalty overrides and Quasar's agreement to assume the duties under the farmout agreement

2
 Record, supp. vol. 1, at 3

3
 The parties are at liberty to bargain for either the benefits or burdens of insurance.  In the absence of an indication that they have bargained concerning either, we will not imply a shifting of benefit to a party which has assumed no burden

4
 The trial court relied on the authority of cases involving landlord-tenant and vendor-vendee disputes over insurance proceeds as most nearly analogous to the facts of this case.  We believe that line of reasoning is also sound

5
 We see no error in the trial court's construing the farmout agreement and the attached operating agreement together in order properly to determine the intent of the parties.  Although the operating agreement was not in effect at the time the blowout occurred, we believe the intent of the parties that the contracts be construed together was manifested by the fact that they were attached together, as well as by the internal references in the farmout agreement to the operating agreement


12 Cal.2d 598 (1939)
JENNIE E. HAMILTON, Respondent,
v.
PACIFIC ELECTRIC RAILWAY COMPANY (a Corporation), Appellant.
L. A. No. 16885.
Supreme Court of California. In Bank.
January 24, 1939.
 Frank Karr, E. E. Morris, C. W. Cornell and O. O. Collins for Appellant.
 Leo V. Youngworth and J. Harold Decker for Respondent. *600
 HOUSER, J.
 The undisputed facts herein appear to be that on a specified date, at about 8:30 o'clock P. M., thereof, on the arrival within its station at the city of Los Angeles of an interurban car that was operated by the defendant, plaintiff alighted therefrom and thereupon, pending the departure from such station of another car which plaintiff intended to use for the purpose of being thereon carried to her proposed destination, went into a waiting room which was located within such station and which was provided by the defendant for the use of its patrons. Plaintiff remained in the waiting room for a space of between 20 and 30 minutes and, although during such time there were "10 or 12 or 15" other persons therein, she "did not observe" any person either enter into or depart from the said waiting room. However, when the car arrived upon which plaintiff had intended to be transported, at the moment when she attempted to leave the waiting room, she slipped upon some oil that lay on the floor immediately in front of the exit door thereof, and thereby was caused to be thrown to the floor; from which fall she sustained the injuries that were the basis of her claim of damages against the defendant, and which form the subject-matter of the instant action. At the conclusion of plaintiff's testimony, both parties rested. From a judgment which was rendered in favor of plaintiff, the defendant has appealed.
 [1] On the part of plaintiff no claim is made that preceding the instant when the accident occurred, the defendant had actual notice of the fact that oil lay or ever had lain upon the floor of its waiting room. In such circumstances, the negligence, if any, of the defendant must rest upon the assumed fact that preceding that moment, the oil had lain upon the floor of the waiting room for such a length of time that the defendant was charged with notice of the fact of its said existence and location.
 [2] It is not denied that as a matter of protection of the safety of plaintiff, the defendant owed to plaintiff at least a reasonable inspection of its waiting room. As to the question of whether the defendant had given a reasonable inspection of such premises preceding the moment when the accident occurred, it is obvious that, prima facie, the length of time that the oil had been upon the floor thereof before *601 that instant would be practically determinative. For example, if no inspection of the waiting room by the defendant had occurred within 24 hours preceding the accident, in the absence of defensive evidence, it might fairly be concluded by a jury that the defendant had failed in its duty to plaintiff in that regard. On the other hand, had inspection been made within one minute before the occurrence of the accident, it might very reasonably be held that the defendant had not so failed. But approximately what space of time had elapsed between the hour and minute when the oil was deposited upon the floor of the waiting room and the moment when plaintiff slipped on such oil and sustained the injuries of which she complained, does not appear from any direct evidence that was received in that behalf. In that regard, as hereinbefore has been stated, the only direct evidence consisted of testimony that was given by the plaintiff to the effect that although during the 20 or 30 minutes that she had occupied the waiting room, she observed no one who either entered it or left it,--notwithstanding the additional fact that there were "10 or 12 or 15" other persons in the waiting room during that time. Of course, it is possible that the oil was upon the floor at the time when plaintiff entered the waiting room and that it so remained until she attempted to leave it,--in which case the question of whether the defendant had performed its legal duty to plaintiff would be a question of fact for determination either by a jury or by the trial court. On the other hand, the bare fact that plaintiff "did not observe" any person either enter or leave the waiting room at any time during the 20 or 30 minutes of her stay therein would not constitute very strong or persuasive evidence that neither an inspector of the premises, in the performance of his duties as such, had not visited the waiting room at any given moment during such 20 or 30 minutes, nor that within that period no other person had either entered or departed from the waiting room. Indeed, considering the fact that at 8:30 o'clock P. M., many persons were making use of the waiting room, it is not improbable that during the time that plaintiff was an occupant thereof, several persons either did enter or leave it,--in which event it would have been possible that at any given moment of such time any one of them might have caused the oil to be deposited upon the floor of the waiting room. However, in *602 order to arrive at the indicated conclusion it would be necessary that one inference be made to depend upon a precedent inference; and, as has been repeatedly ruled, such a course of reasoning is not permitted in the law.
 [3] By statutory provision, an inference is defined as "a deduction which (without an express direction of law to that effect) the reason of the jury makes from the facts proved". (Sec. 1958, Code Civ. Proc.) But it is essential that an inference be founded either upon a fact that has been "legally proved", or upon "a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature". (Sec. 1960, Code Civ. Proc.)
 In the case of Thomas v. Visalia Electric R. R. Co., 169 Cal. 658, 661 [147 P. 972], it is declared that "where mandatory presumptions are not exacted, it is the right and duty of the jury to draw such reasonable inferences from the evidence as may appeal to and satisfy their minds". (Emphasis added.)
 Again, in Rovegno v. San Jose K. of C. Hall Assn., 108 Cal.App. 591, 596 [291 P. 848], it was said:
 "In California inferences in themselves constitute a recognized class of indirect evidence which a court or jury may not disregard. (Code Civ. Proc., secs. 1957, 1958.) Furthermore, 'upon a trial of a case the jury is to find not only the facts but also the inferences from them, if any may properly be drawn ... When an inference is supported by the evidence, and is not opposed to human experience and reason, it cannot be disturbed by an appellate court'. (10 Cal.Jur. 738.)" See, also, In re Estate of Moore, 65 Cal.App. 29 [223 P. 73].
 [4] It may be confidently declared that, founded upon the evidence, the jury not only is authorized to make any logical and reasonable deduction, but also that the jury is the exclusive judge of the weight and value of the inference that may be drawn by it; furthermore, as corollary thereto, that any attempt on the part of an appellate court to draw an inference of fact constitutes "a usurpation of the province of the trial court". [5] The fact that some inference other than that which has been drawn by a jury may appear to an appellate tribunal to be the more reasonable, affords no sufficient *603 reason for disturbing the inference in question. (10 Cal.Jur., p. 735 et seq.) It also appears to be well-established law that notwithstanding the fact that the evidence upon which the inference is founded is undisputed or without conflict, an appellate court has not the power to draw an inference different from that which the jury has deduced.
 In the case of Anderson v. Los Angeles Transfer Co., 170 Cal. 66, 67 [148 P. 212], the following language occurs:
 "The question of negligence is one of fact for the jury, and the finding of the jury cannot be overturned by this court where the evidence is conflicting or where, although the evidence is without conflict, different inferences may reasonably be drawn from it."
 Likewise, in Mah See v. North American Acc. Ins. Co., 190 Cal. 421, 426 [213 P. 42, 26 A.L.R. 123], it was said:
 "This court has frequently held that even though all the facts are admitted or uncontradicted, nevertheless, if it appears that either one of two inferences may fairly and reasonably be deduced from those facts, there still remains in the case a question of fact to be determined by the jury (or by the trial judge where the case is tried without a jury), and that the verdict of the jury or the finding of the trial judge thereon cannot be set aside by this court on the ground that it is not sustained by the evidence. ..."
 [6] It is clear that the duty of establishing the existence of facts sufficient to create a liability in the defendant rested on plaintiff. Accordingly, she was obligated to prove a negative, to wit, that the defendant had given no reasonable inspection to the waiting room.
 Such being the law, it remains to be considered whether the implied inference which was drawn by the trial court to the effect that prior to the happening of the accident the defendant had made no reasonable inspection of its said premises is sufficiently supported by the unquestioned fact that, during a space of time which was between 20 and 30 minutes, plaintiff "did not observe" that any person either entered into or departed from the waiting room.
 In the case of Russell v. McDowell, 83 Cal. 70, 81 [23 P. 183], it is said that:
 "Moreover, it is to be considered that the contestant was assuming the difficult task of proving a negative, i. e., the want of qualification of a large number of voters, and the *604 doctrine is well established that slight proofs make out a prima facie case where a negative is to be proved. In all such cases rebuttal is comparatively easy, and is consequently of imperative obligation. Here no proof in rebuttal was offered, and the evidence for contestant stands absolutely uncontradicted."
 See, also, Parsons v. Weis, 144 Cal. 410, 420 [77 P. 1007]; Owens v. Carmichael's U-Drive Autos, Inc., 116 Cal.App. 348 [2 PaCal.2d 580]; People v. Macbeth, 104 Cal.App. 690 [286 P. 448].
 In the face of positive evidence to the effect that a signal of warning was given of the approach of a car with which an automobile collided, it has been held that negative evidence by passengers in the automobile to the effect that they heard no such signal was sufficient to sustain a finding of fact by the jury that no warning was given. (Thompson v. Los Angeles etc. Ry. Co., 165 Cal. 748 [134 P. 709].)
 To like effect see: Hunt v. Los Angeles Ry. Corp., 110 Cal.App. 456 [294 P. 745]; Takahashi v. White Truck etc. Co., 15 Cal.App.2d 107 [59 PaCal.2d 161]. In the case of Lahey v. Southern Pac. Co., 16 Cal.App.2d 652, 661 [61 PaCal.2d 461], it was said:
 "The negative testimony or testimony of witnesses that they did not hear the ringing of a bell or the sounding of a whistle is admissible and sufficient to support a verdict of the jury as to the nongiving of signals. We need only to cite the following cases without quoting therefrom: Jones v. Southern Pacific Ry. Co., 74 Cal.App. 10 [239 P. 429]; Switzler v. Atchison, T. & S. F. Ry. Co., 104 Cal.App. 138 [285 P. 918]."
 Analogously, where the issue of the reputation of a party litigant is involved, it has been ruled that testimony by a witness to the effect that, although favorably situated with reference thereto, he has never heard the reputation of the person in question discussed, affords cogent evidence that his reputation is good. (People v. Pauli, 58 Cal.App. 594 [209 P. 88]; People v. Adams, 138 Cal. 580 [70 P. 662]; People v. Stennett, 51 Cal.App. 370 [197 P. 372].)
 From a consideration of the foregoing, it would seem well established not only that plaintiff had offered sufficient evidence to sustain a judgment in her favor, but also that it was within the province and the power of the trial court to draw *605 therefrom the inference that the defendant had not performed its duty in giving a reasonable inspection to the premises in question.
 It follows that the judgment should be, and it is, affirmed.
 Shenk, J., Curtis, J., Langdon, J., Seawell, J., Waste, C.J., and Edmonds, J., concurred.


905 S.W.2d 158 (1995)
Madonna Lynn RAUSCHER, Plaintiff-Appellant,
v.
GENERAL MOTORS CORPORATION, Paul Fusz Buick, Inc., and Bruno Guillemette, Defendants-Respondents.
No. 66502.
Missouri Court of Appeals, Eastern District.
September 5, 1995.
*159 John H. Marshall, Clayton, for appellant.
Stephen L. Beimdiek, St. Louis, for Gen. Motors.
Bryan Martin Groh, St. Louis, for Paul Fusz.
F. Douglas O'Leary, St. Louis, for B. Guillemette.
CHARLES B. BLACKMAR, Senior Judge.
Madonna Rauscher filed suit against General Motors Corporation, Paul Fusz Buick, Inc., and Bruno Guillemette, seeking damages for personal injuries which she claimed she sustained in an automobile collision on June 5, 1986. The trial court directed a verdict in favor of General Motors and Fusz at the close of the plaintiff's evidence. The jury returned a verdict in favor of defendant Guillemette. The plaintiff appeals, claiming that the case should have been submitted to the jury against all three defendants, and that there was error requiring a new trial of her claim against Guillemette. We affirm as to Fusz and Guillemette, but reverse and remand for trial against General Motors. On the appeals against General Motors and Fusz the evidence is considered from the plaintiff's point of view, with any conflicts resolved in her favor. On the appeal against Guillemette the evidence supporting the verdict is taken as true, and the prevailing party is accorded all favorable inferences.
The plaintiff's father, David Rauscher, purchased a new Buick Century from Ackerman Buick in March of 1981. He chose to have needed service performed at Fusz rather than at Ackerman because it was much nearer the home. On May 29, 1981 David took the Buick to Fusz, complaining that the "engine hesitates and dies." This was its first trip to the shop, and the odometer showed 2476 miles. The problem did not stop after this visit, and on at least six occasions between the first service and September 25, *160 1985 the vehicle was taken to Fusz with similar complaints. Various solutions were tried and parts and assemblies replaced, but the problem still presented itself from time to time at irregular intervals. Sometimes Fusz would report that nothing was found. Tension developed between David and Fusz's service personnel about the continuing complaint.
After another unproductive visit to Fusz on September 25, 1985, and unsuccessful attempts to get in touch with local Buick representatives, David filed a complaint with the Buick division of General Motors, asserting that there was a defective emission control system and that the car had continued from the time of purchase to have incidents in which it would hesitate, stall, and die. General Motors scheduled an inspection at Mallory Buick on June 9, 1986, but the accident intervened. The car was returned to Fusz after the accident and repaired under General Motors' supervision. No other incidents were noted up to the time that the car was traded for a new one in 1987.
No repairs were made, parts replaced, or substantial maintenance performed at any facility other than Fusz's between the time of purchase and the time of the accident. David changed oil and replaced oil and air filters himself. He took the car to Fusz on several occasions for repairs or maintenance not related to the stalling and dying problem.
On the morning of June 5, 1986 the plaintiff, then age 16, was driving to school. She stopped at a stop sign, after which she undertook to cross the south outer road adjoining U.S. Highway 40 (Daniel Boone Expressway), in west St. Louis County, so that she could turn left and proceed west. Before she could cross the eastbound lane the Buick stalled and died. She tried to restart it but before she could clear the eastbound lane Guillemette's automobile struck the left rear portion of the Buick. Guillemette's different version of the accident is of no consequence in the appeals against General Motors and Fusz.

1. The Appeal against General Motors
The case against General Motors is based on the doctrine of strict liability, as stated in Sec. 402A, Restatement (Second) of Torts, (1965), and adopted by the Supreme Court of Missouri in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo. 1969). The essential elements of a strict product liability claim are set out in MAI 25.04 (1978 revision), and may be paraphrased as follows:
1. The defendant sold a product in the course of its business;
2. The product was then in a defective condition, unreasonably dangerous when put to a reasonably anticipated use;
3. The product was used in a manner reasonably anticipated; and
4. The plaintiff was damaged as a direct result of such defective condition as existed when the product was sold.
We conclude that the plaintiff's evidence would permit a jury to find that each of these elements had been established. The trial judge should have sent the case to the jury rather than directing a verdict.
The jury has broad authority to determine whether a defective and unreasonably dangerous condition is present. Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986). A jury could surely find that an automobile subject to unpredictable stalls and stops, which might occur in traffic, was in a defective condition, and that the condition was unreasonably dangerous. Expert testimony would not be needed; jurors themselves could appreciate the danger by reason of their own experience. See Crump v. MacNaught P.T.Y., Ltd., 743 S.W.2d 532 (Mo.App.1987) (in which the handle of a grease gun, nearly a year after it was purchased, became disengaged and struck a worker who was using it); Patterson v. Foster Forbes Glass Co., 674 S.W.2d 599 (Mo.App.1984) (in which a baby bottle unpredictably exploded after a year's use); Cf. Jacobson v. Broadway Motors, Inc., 430 S.W.2d 602 (Mo.App.1968). For more than four years, indeed, expert mechanics had been unable to analyze or correct the difficulty. It is not necessary for the plaintiff to demonstrate the precise nature of the defect. The action is based not on a defect, but on a defective condition. The danger is demonstrated *161 by the recurrence at unpredictable intervals, which might contribute to accidents such as the plaintiff sustained.
The jury could find that the condition was present at the time David purchased the car new. The problem first appeared within a very few months, with less than 2500 miles on the odometer, and prior to the time recommended for initial maintenance procedures. The same difficulty appeared, intermittently, up to the time of the accident. Prior to the first trip to Fusz the automobile was driven only on roads, and had no abnormal incidents. There was also evidence, in the form of General Motors' service bulletins and the testimony of mechanics, that some 1981 Buick Centuries were prone to stall and die. It matters not that these may have been a small proportion of the total Centuries produced. The presence of a similar defect in other cars of the same make and model is a circumstance the jury could consider in determining whether the vehicle was in a defective condition at the time of purchase. There are ample circumstances demonstrating that the Buick was then in a defective condition and continued in the same defective condition up to the time of the accident.
The case meets the test of Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 573 (Mo.App.1977), in which Judge Stewart spoke as follows:
We hold that once the plaintiff, in a case of strict liability, produces evidence that neither he nor any third person has made alterations to the product, which would create a defect that could be the proximate cause of the damages incurred, he has made a submissible case as to the issue of the existence of a defect at the time of sale or delivery of the product.
Weatherford v. H.K. Porter, Inc., 560 S.W.2d 31 (Mo.App.1977) is distinguishable. There a worker was injured when a jack handle failed. The jack showed signs of considerable wear and the evidence did not show whether it was new or used at the time it was purchased by the plaintiff's employer. The opinion suggests strongly that a submissible case would have been made if the evidence had shown that a new jack had failed the second time it was used. Likewise distinguishable is Jasinski v. Ford Motor Co., 824 S.W.2d 454 (Mo.App.1992), in which there was a twelve year gap in the history of a vehicle alleged to be defective.
General Motors presents myriad arguments, most of which should have been addressed to a jury. It is suggested that the automobile was not in the same condition at the time of the accident as it was at the time of purchase, pointing to replacement of numerous parts and assemblies at Fusz, including replacement of the oxygen sensor, EGR valve, and other parts, and also the rebuilding of the carburetor. Replacement of parts is usual in the maintenance of a car which is driven for a long period. The jury could find that none of the replacement parts or maintenance procedures aggravated the condition which existed from the time of purchase. Some of the replacements, indeed, were made in an effort to correct the defective condition. Fusz was an authorized Buick repair facility, and General Motors would expect that a Buick which had operating problems might be taken there for diagnosis and service. The automobile, with 64,000 miles on it, was a veteran of the highways, but the owner still had the right to expect that it would not be unreasonably dangerous. The suggestion that the defect was caused by David's improper installation of new air filters is also a matter for the jury to consider. He testified in detail about the ownership, use and servicing of the car. There was no indication in his testimony of any accident or misuse which contributed to the defect. If the jury is persuaded that the defect existed at the time of purchase, then the plaintiff is not obliged to pinpoint the cause. See Nesselrode v. Executive Beechcraft, Inc.; Crump v. MacNaught P.T.Y., Ltd.; Patterson v. Foster Forbes Glass Co.; Jacobson v. Broadway Motors, Inc., supra. Inasmuch as the symptoms described by the Rauschers are the same, the jury may conclude that they were a manifestation of an initial defect which continued up to the time of the accident.
In a second point General Motors argues that the plaintiff admitted that she knew the Buick was dangerous, and that she *162 is barred from recovery by the doctrine of contributory fault. Because the accident happened in 1986, Sec. 537.765, RSMo 1994, has no application, and the case is governed by the principles of Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491 (Mo. banc 1986), holding that the plaintiff's recovery is not to be diminished on account of her own negligence. Recovery could be completely barred, however, on the basis of "contributory fault," which is a species of assumption of risk. The elements are set out in MAI 32.23. General Motors seizes upon the plaintiff's admissions that she had been a passenger in the Buick when a stalling incident occurred, and that the car was dangerous to drive before the accident. It cites Ensor v. Hodgeson, 615 S.W.2d 519 (Mo.App.1981), Strang v. Deere & Co., 796 S.W.2d 908 (Mo.App.1990), and Boyer v. Eljer Manufacturing Inc., 830 S.W.2d 535 (Mo.App.S.D.1992), with this last case holding that the evidence did not permit the submission of the issue of contributory fault to the jury. Under these cases contributory fault, when supported by evidence, is a question for the jury, and General Motors should have advised us in its brief of their precise holdings.
We are cited to no case in which a court found contributory fault as a matter of law. Such a holding would be inappropriate in this case for several reasons. The jury might consider that the admissions in plaintiff's testimony were made in the hindsight of the accident, rather than indicating her state of mind at the time she undertook to drive the car to school. It could take into account her age, her parents' having given her permission to drive the car, and the number of times she had experienced the defective performance. It is also of interest that Fusz had notice of the problem for five years, and General Motors for several months, yet neither suggested that the Buick was dangerous to drive. The court would not be justified in directing a verdict on the basis of contributory fault.
The jury, therefore, could have returned a verdict for the plaintiff and against General Motors, on a MAI 25.04 submission. By no means was it compelled to do so. It apparently was not impressed by the plaintiff's claim against Guillemette, and might well have found in favor of General Motors. We reiterate the caution that trial judges should direct verdicts only in clear cases. It is better to take the jury's verdict and then take appropriate action on posttrial motions.

2. The Appeal against Fusz
The plaintiff alleges error in directing a verdict against her and in favor of Fusz on her claim of negligent repair. Its alleged fault lay in not discovering and correcting the defect which caused the vehicle to stall and die. The ruling was correct because there was no evidence of the prevailing standards in automobile repair, sufficient to permit a finding of negligence. In claims for negligent repair, expert testimony is almost always required because the jurors are unfamiliar with the business of repairing automobiles. See Forrest v. Chrysler Corp., 632 S.W.2d 29 (Mo.App.1982); McMahon v. Charles Schulze, Inc., 483 S.W.2d 666 (Mo. App.1972). Fancher v. SouthWest Missouri Truck Center, Inc., 618 S.W.2d 271 (Mo.App. 1981) does not help the plaintiff. There the evidence showed that the defendant had committed an affirmative act of negligence in installing a part of the wrong size in overhauling the front differential of a truck.

3. The Appeal against Guillemette
The plaintiff seeks a new trial against Guillemette on the basis of two alleged errors. We find no prejudicial error and conclude that Guillemette is entitled to hold his verdict.
During opening statement General Motors referred to Guillemette's deposition testimony that he was not injured. The plaintiff's objection on ground of materiality was overruled. The ruling was correct. The absence of injury to Guillemette is a circumstance that the jury could consider, in assessing the defendants' claim that the plaintiff was not injured. See Biener v. St. Louis Public Service Co., 160 S.W.2d 780 (Mo.App. 1942) (in which injuries to others were held to be admissible to demonstrate the force of a collision). It makes no difference that one party to a collision may suffer severe injuries while another is uninjured. Evidence does *163 not have to be conclusive in order to be admissible.
The plaintiff also points to Guillemette's confusion at the time he was deposed as to the speed limit, and the reiteration of this confusion at the trial. There was no evidence that Guillemette was exceeding the speed limit, and no submission of his excessive speed as a possible cause of the accident. Had the speed limit been in issue the parties could have taken steps to adduce the appropriate ordinances. It is suggested that his confusion on the point could be considered in assessing Guillemette's credibility. We perceive no substantial credibility problem in his demonstrated confusion. Pursuant to Rule 84.13(b) reversal is appropriate only for prejudicial error, and we find none.
The judgments against the plaintiff and in favor of Fusz and Guillemette are affirmed. The judgment in favor of General Motors is reversed and the case is remanded for retrial.
WILLIAM E. TURNAGE, Senior Judge and WHITE, P.J., concur.


33 Cal.2d 858 (1949)
OSCAR A. MELLIN et al., Appellants,
v.
LLOYD C. TROUSDELL et al., Respondents.
S. F. No. 17961.
Supreme Court of California. In Bank.
May 17, 1949.
 Jack E. Hursh for Appellants.
 R. V. Bressani for Respondents. *859
 TRAYNOR, J.
 Appellants have been ordered to show cause why their appeal should not be dismissed because notice of appeal was not filed within time. The order to show cause concerns the effect of sections 659 and 660 of the Code of Civil Procedure and rule 3(a) of the Rules on Appeal upon the time within which notice of appeal from a judgment must be filed after denial of a motion for a new trial. The operation of these provisions may be briefly described.
 Under rule 2(a) of the Rules on Appeal, notice of appeal must be filed within 60 days from date of entry of judgment, "unless the time is extended as provided in Rule 3," which relates to extensions when there has been a motion for new trial or a motion to vacate the judgment.
 [1] If notice of entry of judgment has been served upon the losing party, notice of intention to move for a new trial must be filed within 10 days from the receipt of written notice of entry of judgment. (Code Civ. Proc.,  659.) If the motion for new trial is not determined by the trial court within 60 days from service of notice of entry, it is deemed denied. (Code Civ. Proc.,  660.) Upon denial of the motion, whether by order of court or by operation of law under section 660, rule 3(a) extends the time to file notice of appeal from the judgment 30 days from the date of such denial. Thus, if notice of intention to move for new trial is served and filed within 60 days after entry of judgment (rule 3(a)), a motion for new trial extends the time within which notice of appeal from the judgment may be filed a maximum of 90 days from service of notice of entry of judgment.
 [2] If there has been no service of notice of entry of judgment, there is no statutory time limit within which notice of intention to move for a new trial must be filed, and such a motion may therefore be made at any time. If the trial court does not act thereon within 60 days from the filing of notice of intention, the motion is denied. (Code Civ. Proc.,  660.) Rule 3(a) grants an additional 30 days from the date of such denial within which notice of appeal from the judgment may be filed, if the notice of intention is served and filed within 60 days from the date of entry of judgment. Thus, when there has been no service of notice of entry of judgment, the maximum extension of time to file notice of appeal is 60 days from the entry of judgment, plus 60 days for the trial court to rule on the motion for new trial, plus 30 days to file notice of appeal, or a total of 150 days from the date of entry of judgment. *860
 [3] In the present case, judgment was entered for respondents on November 18, 1948. Appellants' counsel was served with notice of entry of judgment on November 23, 1948. He filed a notice of intention to move for a new trial on December 3, 1948, or 10 days after receipt of notice of entry. On February 2, 1949, the trial court denied the motion, and a notice of appeal was filed on March 2, 1949. The notice of appeal was filed 28 days after formal order of denial of the motion and would have been within time had the effective date of denial been the date of that order. The motion, however, had already been denied by operation of law before the formal order of denial. Under section 660, the trial court had 60 days from the service of notice of entry of the judgment on November 23d within which to decide the motion. The 60th day was January 22, 1949, and the motion must be deemed denied on that date. The order of denial of February 2d therefore had no effect. (Lancel v. Postlethwaite, 172 Cal. 326 [156 P. 486].) Rule 3(a) extended the time within which to file notice of appeal from the judgment 30 days from this denial by operation of law, or a total of 90 days from service of notice of entry of judgment. That extension expired on February 21, 1949. The notice of appeal filed on March 2d was nine days late. The appeal is therefore dismissed.
 Gibson, C.J., Shenk, J., Edmonds, J., Carter, J., Schauer, J., and Spence, J., concurred.


     12-1373-cr
     United States v. Robinson

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT
                                             SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007
     IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
     DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
     TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 4th day of April, two thousand thirteen.
 4
 5           PRESENT: RAYMOND J. LOHIER, JR.,
 6                            SUSAN L. CARNEY,
 7                                    Circuit Judges,
 8                            JED S. RAKOFF,
 9                                    District Judge.*
10           ------------------------------------------------------------------
11
12           UNITED STATES OF AMERICA,
13
14                                            Appellee,
15
16                                    v.                                          No. 12-1373-cr
17
18           JASON ROBINSON, AKA MINX,
19
20                                            Defendant-Appellant.
21
22           ------------------------------------------------------------------

             *
             The Honorable Jed S. Rakoff, of the United States District Court for the
     Southern District of New York, sitting by designation.

                                                          1
 1          FOR APPELLANT:              JONATHAN J. EINHORN, Law Office of Jonathan J.
 2                                      Einhorn, New Haven, CT.
 3
 4          FOR APPELLEE:               SARAH P. KARWAN, Assistant United States Attorney
 5                                      (Sandra S. Glover, Assistant United States Attorney,
 6                                      on the brief), for David B. Fein, United States Attorney
 7                                      for the District of Connecticut, New Haven, CT.
 8
 9          Appeal from a judgment of the United States District Court for the District of
10   Connecticut (Robert N. Chatigny, Judge).
11          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12   AND DECREED that the judgment of the District Court is AFFIRMED in part and the
13   appeal is DISMISSED in part.
14          Defendant-Appellant Jason Robinson appeals from a judgment of conviction
15   entered in 2012, following a jury trial. Robinson was convicted of two counts of
16   possession with intent to distribute crack cocaine, and of one count of conspiracy to
17   possess with the intent to distribute crack cocaine. The District Court imposed a sentence
18   of 60 months’ imprisonment and a four-year term of supervised release. We assume the
19   parties’ familiarity with the facts and record of the prior proceedings, to which we refer
20   only as necessary to explain our decision.
21          Robinson argues that there was insufficient evidence to sustain a conviction on the
22   conspiracy charge. We disagree. On a challenge to sufficiency of the evidence, we “view
23   the evidence in the light most favorable to the prosecution,” and “we will affirm the
24   conviction if any rational trier of fact could have found the essential elements of the crime
25   beyond a reasonable doubt.” United States v. Pica, 692 F.3d 79, 86 (2d Cir. 2012)
26   (brackets and quotation marks omitted). “To prove a conspiracy, the evidence must show
27   that two or more persons agreed to participate in a joint venture intended to commit an
28   unlawful act.” United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009) (quotation
29   marks omitted). “[T]he conspiratorial agreement itself may be established by proof of a
30   tacit understanding among the participants, rather than by proof of an explicit agreement.”
                                                  2
 1   United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997). Here, there was sufficient
 2   evidence from which a rational juror could have concluded beyond a reasonable doubt
 3   that a conspiracy existed between Robinson and other individuals.
 4          At trial, police officer Bridget Nordstrom testified that, before one drug
 5   transaction, Robinson and an unidentified man were riding in a car together, and that
 6   before Robinson sold crack cocaine to a confidential informant, the unidentified man
 7   conducted “counter-surveillance,” including looking in parked cars near the site of the
 8   drug deal. Officer Nordstrom also testified that, before a second drug transaction a few
 9   weeks later, Robinson left a residence at 25 Grove Street, followed by an unidentified
10   man who left the same residence about five minutes later. The confidential informant
11   picked up Robinson in a car that had been outfitted with cameras by agents from the
12   Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) to complete a previously
13   arranged drug purchase. As corroborated by videotapes that were admitted as evidence at
14   trial, Robinson directed the confidential informant to pull over, and then another man,
15   whom Robinson described as “my man,” approached the car and handed Robinson crack
16   cocaine. Robinson did not pay the man who gave him the crack cocaine, which Robinson
17   then sold to the confidential informant. Officer Nordstrom testified that the unidentified
18   man she had seen leave 25 Grove Street returned to the residence shortly thereafter,
19   followed a minute or two later by Robinson.
20          Based on the video evidence and testimony of Officer Nordstrom and the
21   confidential informant, which we must assume that the jury credited, the jury could have
22   concluded that Robinson had entered into a conspiracy with the unidentified men1 who
23   were involved in the two drug transactions. The Government was not required to identify
24   these unknown individuals, because a “person can be convicted of conspiring with

            1
             The record does not clearly reflect whether it was the same unidentified man
     involved in both drug transactions.
                                                   3
 1   persons whose names are unknown.” United States v. Bicaksiz, 194 F.3d 390, 399 (2d
 2   Cir. 1999) (quoting Rogers v. United States, 340 U.S. 367, 375 (1951)).
 3          Robinson’s argument that the photo identification procedures were inadequate is
 4   also without merit. “We review the district court’s determination of the admissibility of
 5   identification evidence for clear error.” United States v. Douglas, 525 F.3d 225, 242 (2d
 6   Cir. 2008) (quotation marks omitted). Neither the use of an out-of-date picture of
 7   Robinson in the photographic lineup nor the confidential informant’s subsequent in-court
 8   identification of Robinson was “impermissibly suggestive.” Id. (quotation marks
 9   omitted). Moreover, we may review the photographic array itself to assess its
10   suggestiveness. See id. Our review of the eight-person photographic array reveals no
11   sign of improper suggestiveness. In addition, the confidential informant’s failure to
12   identify Robinson in a separate photograph shown to him by defense counsel during
13   cross-examination fails to establish that the prior identification was unreliable and should
14   not have been admitted.
15          Finally, Robinson argues that the District Court erred in declining to grant a
16   downward departure and adopt a lower criminal history category pursuant to U.S.S.G.
17   § 4A1.3(b)(1). “[A] refusal to downwardly depart is generally not appealable, and . . .
18   review of such a denial will be available only when a sentencing court misapprehended
19   the scope of its authority to depart or the sentence was otherwise illegal.” United States
20   v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (quotation marks omitted). Here, the District
21   Court correctly stated the legal standard and understood the scope of its authority to grant
22   a downward departure, but declined to do so based on a review of Robinson’s extensive
23   criminal history. Accordingly, we lack jurisdiction to review its decision not to grant a
24   downward departure. See id.

                                                  4
1          We have considered all of Robinson’s remaining arguments and conclude that they
2   are without merit. For the foregoing reasons, the judgment of the District Court is
3   AFFIRMED in part and the appeal is DISMISSED in part.
4

5                                             FOR THE COURT:
6                                             Catherine O’Hagan Wolfe, Clerk of Court
7

                                                5


946 A.2d 640 (2008)
William J. DOONER and Maureen Dooner, h/w, Petitioners
v.
Ralph DIDONATO and Philadelphia Stock Exchange, Respondents.
No. 649 EAL 2007.
Supreme Court of Pennsylvania.
April 3, 2008.

ORDER
PER CURIAM.
AND NOW, this 3rd day of April, 2008, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issue set forth below. Allocatur is DENIED as to all remaining issues. The issue, rephrased for clarity, is:
Does the Securities Exchange Act of 1934 preempt Pennsylvania state-law claims arising from personal injuries sustained on a stock exchange floor by a securities industry employee?


428 F.2d 1218
Geno H. BARBER, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 28995 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
July 6, 1970.

Geno H. Barber, pro se.
John W. Stokes, Jr., U. S. Atty., Allen I. Hirsch, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM:

1
Geno H. Barber appeals pro se from the denial of his petition to recover property allegedly lost or misplaced by officials at the United States Penitentiary, Atlanta, Georgia.1 We affirm the judgment of the District Court.

2
Barber is presently incarcerated at the Federal Penitentiary in Atlanta. In the District Court he filed a petition to recover certain papers in a folder marked "Appeal" which he allegedly needed to prepare an appeal now pending. He alleged that the papers were lost or misplaced by an associate warden when petitioner was transferred to the Marion institution in Marion, Illinois. The District Court required a return and answer by the United States. Attached to this return was an affidavit of the associate warden accused by Barber. The affidavit stated that the warden had inquired of other officials and a former cellmate of Barber's but had no knowledge of where the papers were. On the basis of the affidavit the District Court denied relief.

3
We conclude that the District Court did not err. It appears that Barber's papers have disappeared through no fault of officials at the Atlanta penitentiary. It does not appear that Barber has an appeal pending that concerns those papers. As the District Court stated, "Any further complaint should be directed to the Bureau of Prisons. Any court in which petitioner's appeal is pending would grant an extension to obtain copies of the `missing' papers."

4
Affirmed.

Notes:

1
 We have concluded on the merits that this case is of the character that does not justify oral argument. Therefore, we have directed the Clerk to place the case on the Summary Calendar and to notify the parties of this action in writing. 5 Cir. R. 18


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOSEPH E. ARMSTRONG, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-0440 (RJL)
)
AMTRAK, INC., )
, F I L E D
Defendant. ) JUN 03 2015

MEMORAND OPINION Clerk, U.S. District & Bankruptcy
Courts for the District of Columbia
(June: 2,20%) [Dkt. #10]

This matter is before the Court on defendant’s Motion to Dismiss and/or for
Summary Judgment [Dkt. #10]. Because a ruling on the motion potentially could have
disposed of this case, the Court advised the pro se plaintiff of his obligations under the
Federal Rules of Civil Procedure and the rules ofthis Court. Speciﬁcally, the Court
advised the plaintiff that, ifhe did not respond to the Motion by May 22, 2015, the Court
would treat the motion as conceded. To date, the plaintiff has neither ﬁled an opposition
to the Motion nor requested more time in which to do so. Accordingly, the Court will
grant the defendant’s Motion to Dismiss as conceded, and will deny its Motion for

Summary Judgment without prejudice. An Order accompanies this Memorandum

'4
RICHARD J. L

United States District Judge

Oplmon. t


                IN THE SUPREME COURT OF PENNSYLVANIA
                           EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 589 EAL 2014
                              :
             Respondent       :
                              : Petition for Allowance of Appeal from the
                              : Order of the Superior Court
         v.                   :
                              :
                              :
BREON BROWN,                  :
                              :
             Petitioner       :

                                    ORDER

PER CURIAM

     AND NOW, this 18th day of March, 2015, the Petition for Allowance of Appeal is

DENIED.


742 A.2d 1219 (1999)
In re Appeal of John MILLER and Maureen Sheedy.
No. 97-463.
Supreme Court of Vermont.
October 8, 1999.
*1221 John Miller and Maureen Sheedy, pro se, Montpelier, Appellants.
Robert Halpert of Paterson & Walke, P.C., Montpelier, for Appellees.
Present AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
DOOLEY, J.
Appellants John Miller and Maureen Sheedy appeal from decisions of the Vermont Environmental Court (a) approving a conditional use zoning permit for applicant Terrence Shannon to develop as parking a part of his lot adjoining his convenience store, Meadow Mart, in the City of Montpelier, and (b) dismissing as untimely appellants' appeal of site plan approval of the parking project by the Montpelier Planning Commission. Appellants argue that the parking project does not meet certain conditional use standards and violates city setback requirements, and that the court erred in one of its permit conditions and in holding that the site plan appeal was untimely. We affirm the grant of the conditional use permit, and reverse and remand the decision to dismiss the site plan appeal.
Applicant Terrence Shannon owns a convenience store at 284 Elm Street in the City of Montpelier. He purchased the store and lot in 1990. A convenience store has existed on the lot since before 1973, the effective date of zoning in Montpelier.
In 1995, applicant purchased 282 Elm Street, an adjoining lot to the west. The lot had been used for residential purposes, at one point by former owners of the convenience store. At the time applicant purchased the lot, it contained the foundation for a mobile home, but the home had been removed.
Immediately to the west of 282 Elm Street, on the corner of Vine and Elm Streets, is a residence owned by the Bernard Neill Trust. The trust has participated in this dispute before the Montpelier Zoning Board and Planning Commission and before the Environmental Court, but not in this Court. Throughout, the trust has opposed applicant's development plans.
Behind the Neill residence, facing Vine Street, are two residences on one lot owned by appellants and used as rental properties. The lot is quite deep so that it abuts both of applicant's lots at 282 and 284 Elm Street, and the residence at 7 Vine Street lies directly behind these lots.
After adding gravel so that the grade of the 282 Elm Street lot was raised to that of the top of the mobile home foundation, applicant sought conditional use and site plan approval to use 282 Elm Street as a parking lot for the convenience store and to reconfigure the parking on 284 Elm Street. He also sought a variance from the rear setback requirement in order to add a storage room to the back of the store. Appellants sought from the zoning administrator a ruling that the area of 282 Elm Street to the front of the former mobile home was not grandfathered for parking in connection with the store and an enforcement action to remove a floodlight fixture. The Montpelier planning and zoning bodies and officers ruled for applicant, and the various rulings were appealed to the Environmental Court.
*1222 The Environmental Court ruled that the lots had merged and characterized the main application as for an accessory use, that is, parking for patrons of the convenience store. Because a convenience store is a conditional use in the district involved, the court held that the accessory use had to meet the conditional use standards under the Montpelier zoning ordinance. It found that the store, with an expanded and reconfigured parking lot, would not increase the number of customers or the number of deliveries of products for sale in the store. It did find, however, that the added space allowed delivery trucks to drive directly into the parking area so they would come much closer to the Vine Street building.
The court found that the added parking could meet the conditional use standards if the design minimized any adverse impacts from the use on the surrounding residential properties. The court concluded, however, that it could not approve the proposed plan because the document showing the design was incomplete and inaccurate and "the proposal fails to address features and conditions which could minimize the effect of the redesigned parking area on the surrounding neighborhood, including hours of operation, hours of delivery, and the direction of delivery vehicles, and requirements regarding snow plowing, although the Applicant's memorandum suggests that delivery hours of 6:00 A.M. to 6:30 P.M. would be acceptable." Accordingly, it granted the application to use 282 Elm Street for accessory parking, but denied approval of applicant's design, allowing applicant to submit a revised plan to the Montpelier Zoning Board and Planning Commission.
On the other issues presented, the court denied applicant's request for a variance to erect an addition on the store for storage, and granted appellants' request for a declaratory ruling that use of 282 Elm Street, between the street and the mobile home foundation, for parking for the store was not grandfathered. The court also ruled that the floodlight met performance standards of the zoning ordinance and refused to order its removal.
On remand, applicant clarified his plan and detailed the steps he would take to buffer activities on his lot from the neighboring lots and houses. The zoning board again granted conditional use approval, and the planning commission granted site plan approval. On appeal, the Environmental Court affirmed the decision to grant conditional use approval, and held that appellants' appeal of the site plan approval was untimely. Appellants appeal to this Court raising six issues: (1) unless applicant seeks and obtains conditional use approval for the store, as well as the parking area, the development is an illegal expansion of a nonconforming use; (2) the proposal does not meet the conditional use standard that it not "adversely affect the character of the area affected"; (3) the proposal does not meet other conditional use and zoning standards; (4) the court improperly delegated the power to make approval conditions to the zoning board; (5) the court improperly applied the rear setback requirement; and (6) appellants' appeal from the planning commission was timely and, in any event, the court should not have allowed the untimely motion to dismiss the appeal.

I.
Appellants first argue that applicant's proposal to use 282 Elm Street as parking is an improper expansion of a nonconforming use. Their position is that the preexisting store is a nonconforming use because convenience stores are allowed only as conditional uses in the district and the store has not gone through conditional use review. They argue that because applicant failed to seek conditional use approval for the combined 282 and 284 Elm Street lot and all its uses, and the court failed to consider the combined lot, the permit is improper.
Although appellants initially claimed that applicant's proposal involved an improper *1223 expansion of a nonconforming use, we cannot find that this claim included the ground it is now asserting. Indeed, in their rebuttal memorandum to the court, appellants stated: "The court need not consider whether the existing store promotes the residential character of the neighborhood. The issue at hand is whether the new use (a parking lot) promotes the residential character." In their legal memorandum, appellants stated, "since June of 1995, we have not opposed the concept of a parking lot on 282 Elm Street nor sought in any manner to block any reasonable development of the property." In view of appellants' statements, the Environmental Court never addressed the argument appellants make to this Court, nor did appellants raise it in the second appeal to the Environmental Court. We may not consider an appeal issue that was not raised in the trial court. See Town of Hinesburg v. Dunkling, 167 Vt. 514, 523, 711 A.2d 1163, 1169 (1998). We conclude that appellants have not preserved this issue, and we decline to reach it.

II.
Appellants' second argument in relation to the zoning permit is that the applicant's proposal does not meet one of the statutory conditional use standards, as well as a related standard in the Montpelier zoning ordinance. Section 4407(2) of Title 24 contains five general conditional use standards that are applicable in any community, whether or not specifically enumerated in the zoning ordinance. See In re White, 155 Vt. 612, 618-19, 587 A.2d 928, 931-32 (1990). One requires that the proposed conditional use "shall not adversely affect... [t]he character of the area affected." 24 V.S.A. § 4407(2)(B). Montpelier's standard applies to "convenience commercial conditional uses" and requires that they "promote the residential character of the neighborhood by serving the convenience of neighborhood residents without adversely affecting that residential character." City of Montpelier Zoning Regulations § 504(H)(4). Applicant's store is a convenience commercial use. See id. § 203 (defining "convenience commercial").
We have held that the adverse effect test must be applied reasonably to prohibit only substantial and material adverse effects. See In re Walker, 156 Vt. 639, 639, 588 A.2d 1058, 1059 (1991) (mem.). We uphold the Environmental Court's determination of whether there is a sufficient adverse effect unless clearly erroneous. See In re Gaboriault, 167 Vt. 583, 585, 704 A.2d 1163, 1166 (1997) (mem.).
In its 1996 order, the Environmental Court held:
We cannot find that an expansion of the parking lot area into the former 282 Elm Street portion of the merged lot in principle would erode the established character of the neighborhood, especially if it were well-defined, well-designed and well-landscaped. That is, the proposed change in use of the 282 Elm Street portion of the merged lot, from residential to an accessory parking use to a convenience commercial use, does not necessarily erode the residential character of the neighborhood. However, to be approved, its design must minimize any adverse impacts from the use on the surrounding residential properties.
This conclusion was based, in large part, on its finding that the expansion and reconfiguration of the parking would not increase the store's inventory, the number of truck deliveries, or the number of customers.
In its 1997 findings, the court reiterated its earlier finding, specifically finding that the expanded parking would not increase the traffic to the store. The court concluded:
We cannot conclude from the evidence that the parking proposal will adversely affect ... the surrounding character or the residential character of the neighborhood. The residential character of the neighborhood remains an older residential *1224 neighborhood with some mixed residential and commercial uses on the Elm Street side of the neighborhood, and that will be true after the proposal is put into place as it was before. In fact, with the landscaping as now proposed, and the design of the parking locations, the proposal improves the visual and use compatibility of the merged lot with the older residential neighborhood surrounding it.
Much of appellants' disagreement with the court's conclusion derives from their view that the parking is intended to draw more motorists with no connection to the neighborhood into the store. The short answer to this argument is that the court found against appellants' view in its determination of the purpose and effect of the parking expansion. The court's findings are supported by applicant's evidence, albeit disputed by appellants, and are therefore not clearly erroneous. See In re Meaker, 156 Vt. 182, 185, 588 A.2d 1362, 1363 (1991); Stevens v. Essex Jct. Zoning Bd., 139 Vt. 297, 303, 428 A.2d 1100, 1103 (1981) (conditional use findings, even if controversial, must be upheld unless clearly erroneous).
The other major point of disagreement involves the definition of the "area affected." See 24 V.S.A. § 4407(2)(B). The court found that area affected by the development proposal was the surrounding residential neighborhood. Relying on In re Gaboriault, appellants argue that the area affected should consist only of the Neill house on Elm Street and the two abutting Vine Street residences. We do not believe Gaboriault helps appellants' position. Gaboriault involved a new school parking lot, and the town argued that the area affected should be construed to include the entire zoning district, rather than only the adjacent nineteen-resident residential neighborhood. We affirmed the court's decision to consider the residential neighborhood the area affected. Gaboriault, 167 Vt. at 585, 704 A.2d at 1165. Here, appellants want to define the area affected as only a small part of a residential neighborhood, a far narrower definition than that in Gaboriault. As in Gaboriault, we affirm the court's determination of the area affected as not clearly erroneous. See id.

III.
Next, appellants make a number of arguments about the failure of the proposal to meet performance and other standards of the zoning ordinance. These are related to conditional use approval because the development may not "adversely affect ... [b]ylaws then in effect." 24 V.S.A. § 4407(2)(D). We take these in the order presented.
A. Glare: One of appellants' major concerns is that the glare from headlights of cars entering and leaving the parking lot will penetrate the windows of 7 Vine Street and interfere with the residential use of that home. The Montpelier zoning ordinance establishes as a performance standard that a proposed use may not "[e]mit lighting ... which creates undue glare, which ... [is] offensive to the neighborhood." Montpelier Zoning Regulations § 1516(6). Appellants argue that the screening applicant proposed to keep headlight glare away from 7 Vine Street is inadequate, and that the glare is "offensive to the neighborhood."
The court found that the proposed plan, as approved by the planning commission in site plan review, would not create undue glare offensive to the neighborhood compared with the glare from the former parking usage. It did, however, impose three conditions on the issuance of the zoning permit: (1) applicant must plant the screening trees approved in the site plan, maintain them and replace plantings that do not survive with trees of equivalent size; (2) five of the proposed parking spaces may not be used until the screening is installed; and (3) as of a year after the screening trees are planted, they must be sufficient to prevent direct glare into the windows and across the porch of 7 Vine *1225 Street in excess of the level created by the existing parking lot on 284 Elm Street.
As in other arguments, appellants seek to use general conditional use and performance standards to resolve impacts on one specific residential property. We believe that site plan review, not conditional use review, is the proper process to address such impacts. See 24 V.S.A. § 4407(5) (in site plan review, planning commission may impose "appropriate conditions and safeguards with respect to: the adequacy of... landscaping and screening"); Montpelier Zoning Regulations § 507(A) (purpose of site plan review is "to assure the project's compatibility with its location" and "to prevent the development from resulting in significant negative impacts"). Indeed, site plan review by the Montpelier Planning Commission purports to address the adverse effect of glare and requires screening, which the planning commission deems adequate for that purpose. As discussed below, appellants may have an opportunity for Environmental Court review of the planning commission's approval of the site plan. Whether or not this occurs, we do not believe that conditional use review should be distorted to duplicate the function of site plan review.
There was conflicting evidence on the extent to which the expanded parking lot would cause glare in spite of the required screening. In view of the conflict, we cannot find clearly erroneous the court's finding that the proposal would not offend the performance standard on glare.
B. Liquid Waste: The plan creates an opening in the screening trees to allow applicant to plow snow into this area. Appellants argue that the snow is "liquid waste," which when melted will end up in the basement of 7 Vine Street. Appellants then argue that this liquid waste offends a performance standard, which Montpelier is required to have by state statute, 24 V.S.A. § 4407(7), but has not adopted. The short answer to this argument is that Montpelier is not required to adopt a performance standard on liquid waste. Municipalities are authorized, but not required, to adopt performance standards. See id. The statute mentions "liquid or solid refuse or wastes" as types of "dangerous or objectionable elements" that the municipality can cover with a performance standard. However, the language does not require the municipality to adopt performance standards for all, or any particular one, of the examples.[1]
C. Safety: Appellants argue that the parking plan is unsafe, particularly to pedestrians who are walking in front of the large curb cut. Again, this is primarily a site plan issue. See id. § 4407(5) (in site plan review, planning commission may impose conditions and safeguards with respect to traffic access and circulation and parking). A staff member of Montpelier's Office of Public Works testified that the proposed plan improved access and circulation and provided better definition for parking and pedestrian crossing in front of the store.[2] This testimony supported the court's finding that the plan would have no adverse effect on traffic on roads and highways in the vicinity. See id. § 4407(2)(C) (general conditional use standard).
D. Inadequate Screening: Appellants' belief that the proposed screening is inadequate pervades their arguments. For the reasons discussed above, this issue is an appropriate issue in site plan review. Beyond the consideration given it in determining impact on the character of the neighborhood, it is not an appropriate issue *1226 for conditional use review.[3]
E. Diesel Trucks: Appellants argue that the plan brings a large number of diesel delivery trucks close to 7 Vine Street and that the trucks are left idling while deliveries are made. The court attempted to ameliorate this complaint by requiring applicant to inform each vendor and each truck driver to avoid, if possible, turning around in the new parking area and not to leave the truck idling during deliveries. Appellants find this condition inadequate. Again, we believe the issue is one to be raised in site plan review.

IV.
Fourth, appellants argue that the court abrogated its duty by delegating to the planning commission the responsibility to judge the adequacy of screening and by requiring the review only after a year. This permit condition is set out above under the issue of glare. In fact, the permit condition does not depend upon planning commission review as the court explained. By the permit condition, the court defined how the screening trees had to mature to provide screening. It noted that the planning commission could, but was not obligated to, use this standard in its own site plan review.
Functioning as the zoning board on appeal, the court has broad discretion in fashioning permit conditions in connection with conditional use approval. See 24 V.S.A. § 4407(2) (in granting conditional use, zoning board "may attach such additional reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and the zoning regulations"). Although the court attached permit conditions, it remains an appellate body on zoning matters. Review of compliance and the effectiveness of conditions is appropriately left to local bodies in the first instance, with a right of appeal to the court. Thus, we do not believe the mention of planning condition review is an abuse of discretion.
Similarly, we see no abuse in the review interval. The court found that the proposal, as approved in site plan review, met the conditional use standards. That conclusion is supported by the findings, which are supported by the evidence. The court added the temporal condition to ensure that the trees provided the expected screening as they matured. We believe the condition is within its discretion.

V.
Fifth, with respect to the zoning permit, appellants argue that the court improperly approved a plan that encroaches on the rear yard setback in violation of the zoning ordinance. This issue arises in part because the back line of applicant's combined lot is irregular, running first parallel to the street and then proceeding in towards the street at an angle and then away from the street on an angle. The required setback is 30 feet and is defined as a "space extending across the full width of the lot between the principal building and the rear lot line and measured perpendicular to the building at the closest point of the rear lot line." Montpelier Zoning Regulations § 203 (definition of "yard, rear"). The plan drew a line parallel to the irregular back line and thirty feet in from it and did not place parking within the setback area.
Appellants argue that a different setback line is required by the ordinance. Appellants' suggested line is controlled by the fact that the store already encroaches into the rear setback area and is canted in relation to the street. They draw a line through the store, thirty feet from the closest point on the rear boundary and parallel to the rear wall of the store. This line proceeds at an angle across the lot, *1227 intersecting the Neill lot line at a point that appears to be about sixty feet from the rear line.[4] As appellants acknowledge, their line eliminates quite a bit of the parking proposed on 282 Elm Street.
We must uphold the Environmental Court's construction of the zoning ordinance unless it is clearly erroneous, arbitrary or capricious. See In re Gaboriault, 167 Vt. at 585, 704 A.2d at 1166. We find the ordinance language ambiguous when applied to the irregular lot line and the canted structure. Appellants' construction produces a setback zone that is not uniform and ignores the irregularity of the back line, and we can conceive of no reason for this illogical result. The court's construction is more consistent with the purpose of the setback requirement. We conclude it is not clearly erroneous.
Even if we resolved the ordinance construction issue in appellants' favor, we would not conclude that there was an ordinance violation. The zoning ordinance prohibits placement of a "structure" in any setback area and separately regulates parking in front and side, but not rear, setback areas. See Montpelier Zoning Regulations §§ 1306(B), (D). Despite appellants' creative argument that the parking lot is a "raised platform," see id. § 1306(B) (prohibition includes "platforms above normal grade level" as structures), because applicant raised the grade to the level of the mobile home foundation, we do not believe that a parking area is a structure. See id. § 203 (definition of structure as "an assembly of materials for occupancy or use, including, but not limited to, a building, mobile home, billboard, sign, wall or fence"); In re Scheiber, 168 Vt. 534, 536, 724 A.2d 475, 476 (1998) (under similar definition of structure, trial court properly found shooting range, consisting of earth berm backstop and shooting stand, was not a structure). Accordingly, the ordinance does not prohibit parking in the rear setback area.

VI.
Finally, appellants contest the Environmental Court's decision to dismiss the appeal of the planning commission's site plan approval as untimely. At the outset, we agree that the applicant could file the motion to dismiss on the eve of the merits hearing because it went to the court's jurisdiction. See V.R.C.P. 12(h)(3), 76(a)(2), (3); Poston v. Poston, 161 Vt. 591, 592, 657 A.2d 1076, 1077 (1993) (mem.). We also agree that appellants were required to file a timely appeal from the planning commission decision although the zoning board proceedings were not yet completed. The statutes separately provide for appeals from the planning commission, see 24 V.S.A. § 4475, and we have treated site plan review and conditional use review as separatealbeit related proceedings. See Wesco, Inc. v. City of Montpelier, ___ Vt. ___, ___, 739 A.2d 1241, 1243 (1999); In re Carrier, 155 Vt. at 161, 582 A.2d at 115 ("[W]e are not reviewing the issuance of a zoning permit; rather, we are reviewing the superior court's decision to grant site plan approval.").[5]
*1228 The court acted upon two facts: the planning commission decided to approve the site plan at its meeting of February 18, 1997; and appellants filed their notice of appeal from this decision on April 8, 1997. It held that the appeal had to be filed within thirty days of the planning commission action, see 24 V.S.A. §§ 4471 (appeals from zoning board decisions must be filed within 30 days); 4475 (planning commission appeals "shall be in the same manner as provided for appeals from a decision of the board of adjustment"), and that appellants' appeal was beyond the thirty-day period.[6]
Since the Environmental Court acted, this Court ruled on this issue in George v. Timberlake Associates, ___ Vt. ___, 739 A.2d 1207 (1999) (mem.). We held that the appeal period for site plan review does not commence at the time of the oral decision of the planning commission, but instead at the time of "some ministerial act we can regard as a written decision." Id. at ___, 739 A.2d at 1209. Because the appellant in George filed the appeal on the thirty-first day following the oral decision, we did not have to define exactly when the appeal period commenced to conclude the appeal was timely.
The record before us does not define what action we might "regard as a written decision" taken after the oral decision and when it was taken. Appellants claim the first written action occurred on March 21, but that information is not in the record before us. Thus, although we conclude that the Environmental Court used the wrong date as the start of the appeal period, we cannot determine the correct date from the record. Therefore, we must remand the question to the Environmental Court to again determine the timeliness of appellants' appeal of site plan approval in light of George.
The Environmental Court's judgment issuing a conditional use permit, with conditions, is affirmed. The court's dismissal of the appeal of the site plan approval is reversed and remanded.
NOTES
[1]  Because of our disposition, we offer no view on whether melting snow is liquid waste within the meaning of § 4407(7).
[2]  Appellants contest the reliance on this evidence because the staff person is a boyhood friend of the applicant and does not have the education nor expertise of appellants' expert witnesses. These objections go to the weight of the evidence, and we will not second-guess the court's decision on what weight to give the evidence.
[3]  Nor is it appropriate for the court to base its conditional use review on instances of applicant's past noncompliance with zoning requirements. See In re Carrier, 155 Vt. 152, 161, 582 A.2d 110, 115 (1990).
[4]  We make this estimate of the effect of appellants' position based on "color plate E," which appellants filed with their brief. Applicant has moved to strike this and other color plates appellants filed because they were not contained in the record before us. The color plates are simply drawings that help us understand the findings and arguments and do not purport to be evidence. We therefore deny applicant's motion to strike.
[5]  Appellants argue that because site plan review is only a step leading to a zoning permit, appeal of the zoning permit should include the site plan decision. We doubt the assumption, because the zoning administrator could have first sent the application to the zoning board for conditional use review. See Wesco, ___ Vt. at ___, 739 A.2d at 1244. In any event, we do not agree with the proposed calculation. Appeals from decisions of the planning commission are governed by the procedures applicable to appeals from zoning boards. See 24 V.S.A. § 4475. Court appeal is authorized for any "decision of a board of adjustment," id. § 4471(a), not only for decisions granting or denying permits. Similarly, the exclusive remedy statute applies to "any decision or act taken, or any failure to act." Id. § 4472(a). Since the Legislature has clearly authorized appeals to be taken directly from the planning commission, we believe that the import of the exclusive remedy provision is that they must be taken from the planning commission decision.
[6]  Appellants argue that even if their appeal from the planning commission was untimely, the Environmental Court had to review the site plan decision in order to make a proper conditional use decision, and the court therefore erred in excluding evidence that contested the site plan. We conclude that in the absence of an appeal the site plan decision became final and represented the proposal on which conditional use review properly proceeded. Assuming the planning commission appeal was untimely, the court did not err in excluding evidence relating only to site plan review.


                  IN THE SUPREME COURT OF PENNSYLVANIA
                             EASTERN DISTRICT

JOHN SCOTT,                               : No. 466 EAL 2017
                                          :
                   Petitioner             :
                                          : Petition for Allowance of Appeal from
                                          : the Order of the Commonwealth Court
             v.                           :
                                          :
                                          :
CITY OF PHILADELPHIA, ZONING              :
BOARD OF ADJUSTMENT AND FT                :
HOLDINGS L.P.                             :

                                    ORDER

PER CURIAM

     AND NOW, this 13th day of March, 2018, the Petition for Allowance of Appeal is

DENIED.


217 P.3d 703 (2009)
230 Or. App. 756
STATE
v.
SNIDER.
A138363
Court of Appeals of Oregon.
September 16, 2009.
Affirmed without opinion.