I concur with the majority regarding the trial court’s exclusion of subsequent remedial acts. I also concur with the majority’s finding that Stephens failed to preserve the issues regarding the trial court’s denial of her motions for directed verdict and JNOV. However, I respectfully disagree with the majority regarding the alleged erroneous jury charges, and I would reverse and remand for a new trial.
First, I agree with the majority that DOT failed to present sufficient evidence to entitle it to a jury charge on discretionary immunity. However, I disagree with the majority’s conclusion that despite DOT’S failure to prove entitlement to the charge, the trial court did not err by giving the charge. Furthermore, I find Stephens was prejudiced by the error because the charge could easily have confused the jury. Here, as noted by the majority, there was testimony by three DOT employees about the conditions near the crossing.
I also note the trial judge erred in charging section 56-5-2930, which makes it unlawful for a person to drive a motor vehicle under the influence, but refusing to charge section 56-5 — 2950(G)(1), which provides that a person with a blood alcohol level of .05% or less is conclusively presumed to not be under the influence. See S.C.Code Ann. §§ 56-5-2930; - 2950(G)(1) (Supp.2011). The trial court also charged that DOT was immune from liability for the criminal actions of third persons. S.C.Code Ann. § 15-78-60(20) (2005). Colvin admitted she consumed one or two wine coolers in the five hours preceding the accident and took prescription medications. Her blood alcohol content was measured at .018% following the accident. I conclude the trial court erred by charging the criminal driving under impairment statute and the immunity statute without charging 56-5-2950(G)(l), which permitted Colvin to rebut her alleged impairment and prejudiced her.
I next find the trial judge erred in charging CSX’s proposed request to charge Number 45, which stated, “It is Always Train Time at the Crossing.” In my view, this could have implied to the jury that CSX and DOT had lesser duties of care than a motorist and constituted prejudicial error.
*527Finally, I find these errors were not harmless beyond a reasonable doubt. See Wells v. Halyard, 341 S.C. 234, 237, 533 S.E.2d 341, 343 (Ct.App.2000) (“An alleged error is harmless if the appellate court determines beyond a reasonable doubt that the alleged error did not contribute to the verdict.”) (emphasis added). Accordingly, I would reverse and remand.