VAN DUSEN, District Judge.
Plaintiff has filed a motion for a new trial after the jury returned a verdict for defendant at the conclusion of a trial lasting three days in this suit brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51.
At approximately 7 a. m. on a cold, clear, dry day in late November 1950, the plaintiff [a 55-year old widow weighing about 183 lbs. and about 5' 4½" tall, who had been working for the defendant railroad company as a track laborer
Between 8:00 and 8:15 a. m., while crossing the road with an empty shovel toward the east side in order to get more dirt, plaintiff fell at a point (see spot marked on P-5 with largest red dot — N. T. 48) three feet south of the southerly track and 2½ to 3 feet west of the east edge of the paved road. Plaintiff testified as follows concerning her fall (N. T. 51-52):
Mr. Di Luzio,
Although the plaintiff testified that the road was narrow and worn out in November 1950, Mr. Chiolan, whose office was on this road south of the crossing, testified that the condition of the paving on this road was generally good in November 1950. Mr. Osborne, a field supervisor for the Philadelphia Department of Streets, testified that he had inspected the road in April 1951 and found that the surface was worn away down to the stone base, with the result that cars would pick up the stones and carry them down the hill. This made the road very slippery so that he "had to be careful to pick his step up from the bottom all the way to the top" of the hill. He also testified that there would not be much difference between the condition of the road when he inspected it in April 1951 and its condition in November 1950.
Plaintiff was taken to the Women's Medical College Hospital, where it was discovered that she had a fracture of the inner side of the left ankle. Several casts were put on her left leg from time to time during the period prior to the
Subsequent to the summer of 1951, plaintiff also received treatments at Philadelphia General and Temple University Hospitals. Dr. Bonner (one of plaintiff's medical witnesses) diagnosed her condition on November 9, 1955, as "arthritis, tenosynovitis, bursitis, and 10-20% nerve injury."
In view of the strong feelings of counsel in favor of, and against, the motion for new trial and the length of the briefs and letters
1. A federal trial judge is not a mere moderator but has an affirmative duty to see that the relevant evidence on the issues to be decided by the jury is submitted to the jury as clearly as possible. See Packwood v. Briggs & Stratton Corp., 3 Cir., 1952, 195 F.2d 971, certiorari denied, 1952, 344 U.S. 844, 73 S.Ct. 61, 97 L.Ed. 657; Garrison v. United States, 4 Cir., 1932, 62 F.2d 41, 42.
The approach of counsel for plaintiff is exemplified by this language made in objection to the charge (N.T. 525):
As the trial judge understands his function, the question of whether defendant's counsel thought of a material point is not the test of whether it is worthy of being called to the jury's attention.
It has been repeatedly held that it is not reversible error for a federal trial judge to comment upon, and express his opinion upon, a particular item of testimony so long as the decision as to the weight and effect of the testimony is left to the jury.
2. The evidence in this case presented a much stronger case for defendant than for plaintiff and the trial judge cannot make up for deficiencies in the plaintiff's evidence in order to present a case of equal weight to the jury. See Gallagher v. Hildebrand, 285 Pa. 350, 352, 132 A. 174 (1926). The trial judge tried to lean over backwards in being impartial and fair to the plaintiff because of the weakness of her case.
3. Where counsel, with advance notice that his case will be listed first on the first day of a trial period, fails to present to the trial judge any written trial memorandum and does not present any Requests for Charge within the time prescribed by the rules, he cannot object that his contentions have not been submitted to the jury in the manner he would have preferred.
I. Contention That Verdict Was Against The Law (Paragraphs 3, 10 & 36 of Motion for New Trial).
Plaintiff apparently contends under this point that the court ruled, as a matter of law, that the plaintiff could not recover on the ground that defendant subjected her to a job too hard for her to perform as a woman. The court did not use any such language in the charge and, at the request of counsel for plaintiff, did charge the jury that they should take into consideration "the physical capabilities of the employee under the circumstances" in determining whether the plaintiff exercised "ordinary care to assure that" the plaintiff had a reasonably safe place to work (N.T. 506-507).
In this connection, plaintiff's counsel argues in his brief (pp. 24-26) that the action of the trial judge in striking out the testimony of Mr. Morrison, track supervisor of one sub-division of defendant's railroad, was error sufficient to justify a new trial, even though no objection by plaintiff's counsel to this ruling appears on the record (N.T. 430-431). Mr. Morrison, called on cross-examination by plaintiff under F.R.Civ.P. 43(b), 28 U.S.C.,
He testified that some of the time of both men and women track laborers had to be spent in picking up papers and that this memorandum was put out because the Directors did not like to see track laborers doing light work, since they were hired and paid for heavy work. When plaintiff's foreman, Mr. Di Luzio, was questioned about receiving the orders contained in this memorandum, he testified that he did not remember receiving the order and counsel for plaintiff
In an effort to show that the above-quoted language was recognition on the part of the railroad that its management was requiring women to do work beyond their physical capabilities (N.T. 75) and did not approve of their doing light work, such as picking up papers, counsel for plaintiff also examined Mr. Morrison concerning a memorandum of February 15, 1949, to plaintiff, telling her to report for a hearing and investigation involving her inability to perform the work of a track laborer, and a memorandum of February 26, 1949, asking her to report on March 1 for a supplemental hearing involving this subject. Mr. Morrison testified that plaintiff stated she was able to do the work of a man and he did not remember her ever complaining that her work was too heavy. Plaintiff testified that she was always ready and willing to do any of the work of a track laborer prior to November 27, 1950.
Since plaintiff was unsuccessful in showing any admission by the company, or by Mr. Morrison personally, or any other evidence that plaintiff was doing any work in excess of her physical ability or that plaintiff had ever made a claim that she had been asked to do work which was too difficult for her, and since consideration of this testimony and these memoranda had emphasized conflicting inferences that might be drawn from the language of four exhibits (P-9, P-10, P-12 and P-13),
It is improper to permit in evidence testimony which might tend to draw the minds of the jury from the important issues, especially where it may prejudice, confuse or mislead them into giving their attention to collateral matters. See Cleland v. Peters, D.C.W.D. Pa.1947, 73 F.Supp. 769, 773; Howser v. Pearson, D.C.1951, 95 F.Supp. 936, 941;
In the Cleland case, the court rejected certain evidence until a proper foundation had been established to make it relevant. No such foundation was ever established in this case relating the memoranda either to plaintiff or to the issue of the physical difficulty of the work done by plaintiff at the time of the accident.
II. Contention That Verdict Was Against The Evidence.
A. Testimony by Dr. Cherner from Opinions in Medical Reports by Other Doctors (Paragraph 6 of Motion for New Trial).
It seems clear that even if there were errors in the admission of medical testimony, all of which concerned solely the damages, such errors would be no basis for a new trial in view of the verdict for the defendant. See George P. Clark Co. v. Kuebler Foundries, 3 Cir., 1922, 285 F. 568, 569; Gallagher v. Hildebrand, 1926, 285 Pa. 350, 352, 132 A. 174; Harkinson v. Pennsylvania Co., etc., 1938, 329 Pa. 209, 212, 198 A. 11.
Plaintiff's counsel called Dr. Cherner, a medical doctor employed by defendant to take care of its injured and sick employees and follow their progress (N.T. 294), with his records, and documents concerning plaintiff (N.T. 260). Dr. Cherner was asked whether his records showed that it was a fact that Dr. Wolcott at Women's Medical College Hospital wanted to perform an open reduction operation on plaintiff but that
B. Verdict as Against the Weight of the Evidence (Paragraphs 1 and 2 of Motion for New Trial).
There is ample evidence in the record to support the verdict of the jury that the plaintiff's injuries did not result, in whole or in part, from the negligence of the officers, agents, or employees of the defendant.
III. Contentions Concerning the Charge.
In considering the many objections made by plaintiff to the charge, the following two principles must be kept in mind:
1. The charge must be considered as a whole. Plaintiff's brief, in many cases, takes a small portion of the charge (often a single sentence — see, for example, pages 44 and 84) and criticizes it without taking into consideration other parts of the charge. The charge must be judged in its entirety. McLeod v. Union Barge Line Co., D.C.W.D.Pa.1951, 95 F.Supp. 366, 369, affirmed 3 Cir., 1951, 189 F.2d 610; Goodyear Fabric Corp. v. Hirss, 1 Cir., 1948, 169 F.2d 115, 117; Louisville & Nashville R. Co. v. Farmer, 6 Cir., 1955, 220 F.2d 90, 98-99.
2. Plaintiff's requests for charge were not submitted within the time prescribed by the rules and need not be considered.
Under such circumstances, it is clear that the failure of the trial judge to read all these requests for charge would not have been ground for a new trial.
A. Part of Charge Concerning Sympathy and Prejudice40 (Paragraph 4 of Motion for New Trial).
The closing speech to the jury of counsel for plaintiff contained this language:
In view of this emphasis on these "little children" and the plaintiff having something to leave to those "who are near and dear to her," the trial judge felt it was his duty to neutralize any possible prejudice by including in his charge a sentence indicating that there might be those interested in the defendant who were also in need and included the following paragraph in his charge:
The Federal Courts have consistently and repeatedly emphasized that the Federal trial judges have an affirmative duty to act on their own motion and to counteract irrelevant, prejudicial remarks of counsel. See Chicago and North Western Ry. Co. v. Kelly, 8 Cir., 1934, 74 F.2d 31, 35; F. W. Woolworth Co. v. Wilson, 5 Cir., 1934, 74 F.2d 439, 442-443, 98 A.L.R. 681; London Guarantee & Accident Co. v. Woelfle, 8 Cir., 1936, 83 F.2d 325, 338-339; Beck v. Wings Field, Inc., 3 Cir., 1941, 122 F.2d 114, 117; Hockaday v. Red Line, Inc., 1949, 85 U.S.App.D.C. 1, 174 F.2d 154, 156, 9 A.L.R.2d 601; New York Central R. Co. v. Johnson, 1929, 279 U.S. 310, 318, 49 S.Ct. 300, 73 L.Ed. 706.
B. Part of Charge Concerning Burden of Proof (Paragraphs 5, 25 and 26 of Motion for New Trial).
The portions of the charge concerning the burden of proof is contained in the paragraphs on pages 490, 495-496 and 511. Plaintiff objects to the use of the word "convince" once and the word "conviction" twice on page 490. One can agree with counsel for plaintiff and Judge Frank that it would be better not to use those words in a civil case without finding their use, together with language making clear that the burden was to prove "by the weight or fair preponderance of the evidence" grounds for a new trial. See Larson v. Jo Ann Cab Corp., 2 Cir., 1954, 209 F.2d 929. Counsel for plaintiff seeks to distinguish this decision, which refused to grant a new trial even though the words "convince" or "conviction" were used many times, on the ground that no objection was made in that case to the charge. However, although counsel for plaintiff objected to the charge, which he contends repeatedly commented on the kind of proof required, he did not object to the use of the words "convince" and "conviction," which use could have been remedied easily if objection and the ground therefor had been stated distinctly as provided by F.R.Civ.P. 51.
Counsel for plaintiff argues that the facts of the Commercial Molasses case are different than those involved here. While this is true, the Supreme Court in that case discussed the burden of proof in a civil case at length and plaintiff's distinctions do not seem significant. Also, counsel for plaintiff submitted no requests for charge on the burden of proof and no requests at all within the time prescribed by F.R.Civ.P. 51.
The complaint of counsel for plaintiff at pages 39 ff. of his brief, that the charge indicated that the preponderance of the evidence was a heavier burden than that contemplated by the language
Plaintiff argues (page 86 of her brief) that there was too much repetition of the burden of proof. The space given to this subject occupied three paragraphs (less than three pages) of a charge of 36 pages (not including the part of the charge dealing with contributory negligence, which covered one page).
C. Portion of Charge Concerning Duty To Use Reasonable Care To Provide Safe Place to Work (Paragraphs 16 to 20 & 27 of Motion for New Trial).
The language of the charge dealing with this subject is found at N.T. 489-491, 505-507, 528-529, and last sentence of paragraph on 530.
1. The contention that the charge indicated that defendant's negligence depended on the conduct of Mr. Di Luzio alone is not supported by the record.
2. The contention that the trial judge should have charged that the defendant had an affirmative duty to inspect the crossing prior to plaintiff's arrival at work and that the portion of the basic charge on this point contains error is not supported by the cases.
(a) After the opening speeches and before any testimony was offered, the court said (N.T. 31):
(b) The court read paragraph 8 of plaintiff's points for charge, which stated that defendant had an affirmative
After explaining that defendant had the duty to use reasonable care to provide plaintiff with a safe place to work under all the circumstances, the trial judge also said in the basic charge that the jury would have to decide whether defendant's foreman should have had notice of any unsafe condition prior to the time of plaintiff's fall.
The court believes that this part of the charge on this point is supported by these cases and not inconsistent with the United States Supreme Court cases which are reviewed in the Frizzell case, 199 F.2d at page 157. Plaintiff's point 8 was more favorable to plaintiff than the law prescribes under these facts and reading it was harmless error.
3. The contention that the reference to dynamite established a false standard of care and duty is not supported by the record.
Counsel for plaintiff objected to the reference to dynamite at the end of the
This does not seem to the trial judge to be error.
4. The contention that the part of the charge mentioning an accidental slip is error is not supported by the law.
The decided cases support the principle adopted by the trial judge that the question of whether an accident is unavoidable or is the result of defendant's negligence should be submitted to the jury where the evidence supports the possibility of an unavoidable accident. See El Paso Electric Co. v. Surrency, 10 Cir., 1948, 169 F.2d 444, 447; Weschler v. Buffalo & Lake Erie Traction Co., 1928, 293 Pa. 472, 476-478, 143 A. 119, 121; Springfield Township v. Indemnity Insurance Co., 1949, 361 Pa. 461, 463, 64 A.2d 761, 762.
The cases cited by plaintiff
D. Part of the Charge Concerning Inferences from Failure to Call some Members of Plaintiff's Section Gang as Witnesses (Paragraph 22 of Motion for New Trial).
Where potential witnesses are in court and available to both parties,
In view of the arguments made by plaintiff's counsel to the jury concerning the failure of defendant to call the other members of plaintiff's section gang who were present in court,
It should be noted that the court specifically pointed out to the jury (N.T. 531) that "the defendant might have called (these potential witnesses) and didn't * * * and I think that is in accordance with the arguments which were made to you by counsel." Particularly since counsel for plaintiff was the only counsel to ask the jury to draw any inference from the failure of these potential witnesses to be placed on the stand, the language of the charge on this point was more favorable to the plaintiff than the above-mentioned rules of law prescribe for such a situation.
E. Part of Charge Concerning Testimony of Messrs. Osborne and Chiolan (Paragraphs 23, 24 & 15 of Motion for New Trial).
At page 141 of 140 F.Supp. there is summarized the testimony of two impartial witnesses (Mr. Osborne called by plaintiff and Mr. Chiolan called by defendant) concerning the condition of the road at the place where plaintiff fell. To recapitulate in a sentence, Mr. Osborne testified that the whole road was in bad condition and slippery and Mr. Chiolan testified that the road was in generally good condition at the place of this fall. Plaintiff contends that the charge incorrectly stated the testimony of Mr. Osborne
Plaintiff also claims that the testimony of Mr. Osborne was minimized and that of Mr. Chiolan given undue prominence. This contention is apparently
F. Parts of Charge Concerning Statement Obtained From Plaintiff and the Mere Fact That Damages Were Covered Did Not Indicate Liability (Paragraphs 21 and 35 of Motion For New Trial).
Counsel for plaintiff contends that the summary of plaintiff's testimony on liability in the charge (N.T. 492-493) disparaged the plaintiff and her case. The court has reread her testimony and the testimony (Exhibit D-1) she gave at the hearing in January 1951, two months after the accident. The charge seems accurate and not disparaging.
Complaint is also made that the language of the charge improperly repeats "over and over again" that the mere fact that the court charged on the subject of damages "was not to create the impression that the court was in favor of damages or that there was liability." The charge did not use the above-quoted language employed by plaintiff and in only two places said that the mere fact that the charge covered damages is not to be taken as an indication of the trial judge's views on the question of liability. The record does not support either plaintiff's contention that this language was repeated "over and over again"
Plaintiff apparently contends that the first paragraph on page 497 contains the alleged objectionable language.
H. Parts of Charge Concerning Damages (Paragraphs 29 to 34 of Motion for New Trial).
As pointed out above (II-A),
I. Contention That Charge Was Prejudiced and Prejudicially Inaccurate (Paragraphs 7, 8 and 12-14 of Motion for New Trial).
This allegation that the trial judge was not impartial in the charge
A reading of the last three pages of the charge, together with the charge as a whole, indicates to the trial judge that the jury was impartially advised of the issues for their decision. Because of the failure of counsel for plaintiff to submit requests for charge within the time required by the Rules and his failure to furnish any written trial brief, it is not reasonable to object that the trial judge was not more expert in presenting plaintiff's contentions to the jury. The court can find no error in those parts of the defendant's requests for charge which were read to the jury.
Exhibit A to Opinion of March 16, 1956.
I. Contention that charge erroneously stated that plaintiff did not put weight on her foot and was unreasonable in not doing so (Paragraphs 29, 33 & 34 of Motion for New Trial).
The record makes clear that from time to time during the time since plaintiff's fall on November 27, 1950, she used casts, braces, crutches, and restrictive bandages, thereby taking weight off her foot. At certain times her failure to place weight on her foot was recommended by doctors, but at other times this was contrary to the advice of certain doctors (see testimony referred to at page 142 of 140 F.Supp. Plaintiff did not testify that she followed the doctors' advice in putting more and more weight on her foot, but that she tried it and could not do it because "it was hurting."
II. Contention that it was erroneous to say that Dr. Wolcott agreed with the other doctors in believing there was no need for an open reduction operation (Paragraph 30 of Motion for New Trial).
A reading of Exhibit P-11
III. Contention that it was error to draw an inference from the fact that plaintiff failed to call Dr. Wolcott and Dr. Lockman (Paragraph 31 of Motion for New Trial).
On the issue of damages, one of defendant's main contentions was that plaintiff had been physically able to return to work on July 31, 1951. One of plaintiff's contentions was that Dr. Wolcott, of the Women's Medical College Hospital, had believed it was advisable to perform an open reduction operation on plaintiff in August 1951 and, hence, plaintiff could not have been fit for the strenuous work of a track laborer on
Another contention of defendant was that plaintiff's present condition resulted from disuse of her muscles caused by using tight bandages, crutches, a brace, etc., keeping her ankle from getting exercise. During the trial, plaintiff's counsel also brought out by having a witness testify from the medical records of the Philadelphia General Hospital that Dr. Lockman of that hospital had treated plaintiff in 1952 and recommended that she wear a brace. Hence, Dr. Lockman was familiar with plaintiff's physical condition in 1952 and there was no showing that he was unavailable as a witness.
The applicable rule of law in such cases is that where witnesses familiar with the facts are available and not produced on the stand, the jury is entitled to infer that their testimony would be unfavorable to the cause of the party whose interest it is to establish the facts with which the witnesses are familiar. See United States v. Grannis, 4 Cir., 1949, 172 F.2d 507, certiorari denied 1949, 337 U.S. 918, 69 S.Ct. 1160, 93 L.Ed. 1727; Wigmore on Evidence (3rd Ed.), § 285.
In view of the above facts, this language of the charge is no more favorable to the defendant than the trial judge was required to give under the above-mentioned rule of law (N.T. 498-499):
In view of the references to these doctors in the arguments of counsel (N.T. 442-444, 466-467, & 472-473), an instruction on this subject was necessary and proper.
IV. Contention that it was error to point out that Dr. Bonner never saw records of Women's Medical College Hospital (Paragraph 32 of Motion for New Trial).
Plaintiff's counsel called Dr. Bonner, who testified that he examined her on November 9, 1955, when he made the diagnosis described at page 142 of 140 F.Supp. Also, Dr. Bonner testified that plaintiff was using a crutch and cane, during the period since her fall on 11/27/50, under doctor's orders, even though he had only seen the records of the Philadelphia General Hospital and the Temple University Hospital beginning in January 1952 and had not seen the records of the Women's Medical College Hospital (N.T. 186), where plaintiff was treated until the end of 1951 (N.T. 172 and 174-176). Furthermore, it was as of July 31, 1951, that defendant's doctors believed plaintiff had made a sufficient recovery to resume her job as a track laborer. Under these circumstances, the trial judge felt it was his duty to point out in the charge that Dr. Bonner saw none of the 1951 records when plaintiff was treated at the Women's Medical College Hospital (N. T. 499).
FootNotes
"She even jumped when her toes were moved. She refused to bear any weight on her left foot and stated she was unable to, yet a few moments before she had walked back and forth across the room in excellent fashion holding the cane above the floor and actually not using it.
"Before any part of the foot, ankle, or lower leg was touched, she rapidly withdrew the part and shouted with pain.
"We did x-ray studies, and these x-ray studies showed a well-healed oblique fracture about the lateral malleolus, which is the prominent bone on the outer side of the ankle. Actually the fracture was a bit above the ankle joint itself and more accurately would be in the lower end of the shaft of the fibula.
"There was no distortion of the ankle joint whatsoever. The joint margins were smooth. It looked like a perfectly normal ankle joint."
In Dr. Albert's opinion, she would have gotten along quite well without any support, and could have returned to work (N.T. 379). He testified that it was desirable for people in her position to be as active as possible (N.T. 380).
"I saw her first on November 9, 1955, this month, and at that time the patient gave findings indicating that she had an arthritis, traumatic, chronic, of her left ankle; a tenosynovitis, post-traumatic, chronic, at the tendon of the anterior tibeal muscle. She had a bursitis, post-traumatic, chronic, of the Achilles bursa, and nerve injury, 10 to 20 per cent, below the knee of left side."
At N.T. 178, he testified that 10 to 20 per cent. of a denervement is little.
"This authority and responsibility to keep jury findings within reasoned rules and standards is an essential function of United States judges today as it long has been of common law judges. See Capital Traction Co. v. Hof, 1899, 174 U.S. 1, 13-16, 19 S.Ct. 580, 43 L.Ed. 873. It stands as a great safeguard against gross mistake or caprice in fact finding."
"You as the jury are the sole and exclusive judges of the facts. If anything I say in this charge concerning the evidence is not in accordance with your memory and your understanding of what has been testified to, you must disregard what I say as to those facts. That is your province. Your understanding of the facts and your memory of the facts are to control."
This point was re-emphasized throughout the charge (see footnote 71 below). In the supplementary part of the charge, the trial judge stated, at pages 528 and 530:
"You certainly may find that — that is up to you — and I, of course, referred only to very small parts of the testimony. You must consider all of it.
* * * * *
"* * * it is for you to find the facts, and nothing I said should be allowed to make you feel that the plaintiff had not sustained her burden of proving this case or that she had. That is for you to decide. That is your problem."
"In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; and the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on writ of error."
(a) Request that the transcript of the testimony given by plaintiff at the company hearing within two months of the accident (where she was represented by her union representative) be kept from the jury, even though her only description of the road at that time was that it was "dry and frozen" and though she made no comment on her foreman's description of the road as being "free of loose stones and dirt."
(b) Request that the jury be instructed that there was no particular significance in the accident occurring on the city street, rather than on the property of the Reading Company (N.T. 24-26 & 31).
(c) Request that plaintiff be permitted to testify to injury to her side, even though this was not mentioned either in the complaint or at the pre-trial conference (N.T. 68-72).
(d) Permitted plaintiff's doctor to testify after counsel for plaintiff had suggested the answers to him by leading questions (for example, N.T. 181, 187, & 190).
(e) Request to call track supervisor (Mr. Morrison) of one subdivision of defendant under cross-examination as a managing agent under Rule 43(b) (N.T. 228-232).
(f) Permitted what amounted to cross-examination of witness (Dr. Cherner) called by counsel for plaintiff, even though he was clearly not a managing agent within the terms of Rule 43(b) (N.T. 266 ff.).
As pointed out below, the court only included the subject of contributory negligence in the charge at the suggestion of counsel for plaintiff (N.T. 479-481). See also other matters in the charge favorable to plaintiff mentioned in footnote 86.
"There was evidence that she was strong and vigorous and able. There was no proof that she was under any physical disability of any sort."
"It wouldn't make the slightest bit of difference in my case if I showed ten thousand orders from the railroad if, in fact, they were not communicated to her and she wasn't affected by them. I have got to show that, in fact, they did order her, otherwise I have a gap in my proof, so I must show through her, her reaction, her mental frame of mind, and what she did in response to the orders that were given."
Plaintiff's counsel then stated that he would be glad to call plaintiff back at a later point in the case after proving orders from her superiors (N.T. 76). Furthermore, plaintiff was never called back to the stand and questioned on these memoranda or the orders contained in them.
"* * * a motion has been made by the defendant to strike the testimony of Mr. Morrison, and I will grant that motion and strike his testimony, because I do not feel that it has been tied in in any way to make it relevant in this case, and that it will merely confuse the jury with irrelevant evidence; and I direct that no reference to that testimony be made in the closing speeches * * *."
"All women track laborers must be kept in the gang and do the same work as the other laborers in the gang. I am giving each woman laborer a letter to that effect so there will be no misunderstanding."
"There is a natural and frequent tendency for trials to move on tangents and away from the main issues. It is a function, even a duty, of the trial judge to control and check this tendency of his own motion."
"I will permit him to cross-examine, because the plaintiff has as part of its case put in evidence a direction by the railroad prohibiting an operation, and I believe that it is the proper subject of cross-examination for the defendant to go into that evidence which has been offered as part of the plaintiff's case. If he wants to offer this letter in evidence, then he will have to establish a basis for that, and that will be another thing."
It is proper on cross-examination to bring out matter explaining what was said on direct examination. Mintz v. Premier Cab Ass'n, 1942, 75 U.S.App. D.C. 389, 127 F.2d 744; Conley v. Mervis, 1936, 324 Pa. 577, 188 A. 350, 108 A.L.R. 160. It should also be noted that a witness may explain an answer, to which explanations counsel for plaintiff apparently objected. See 58 Am.Jur., Witnesses, 574, and cases there cited.
"Plaintiff in asserting that the charge on `unseaworthiness' brought the subject into the limited sphere of foreseeability, commits the frequent fallacy of quoting out of context. The charge must be considered as a whole with a view of determining the impression conveyed thereby to the jury, and determining whether the charge was misleading."
In the Louisville & Nashville R. Co. case, the court said:
"We are not in accord with the tendency which we have observed here and there to lift, as a ground for reversal, a single inconsistent and incorrect paragraph from the context of a well-rounded charge, correct when viewed in entirety. We must consider whether, upon the whole, the charge of present concern gave appropriate and proper instructions upon applicable law in such fashion as would be unmistakably understood by the jury. Applying this standard, though there is an ambiguity, we find no reversible error in the subject matter of the charge pertaining to the applicability and effect of section 2628(4) of the Code of Tennessee."
The trial judge did read 14 of the 26 paragraphs requested by plaintiff. Plaintiff complains that the trial judge read paragraphs 1, 2, 4, 6, 7 and 8 in too low a voice and too quickly. While the trial judge was reading paragraph 8, counsel for plaintiff interrupted him, saying, "You are going too fast * * *" but not mentioning the low tone of voice, now also a subject of complaint. The trial judge started reading paragraph 8 again from the beginning and, after completing this paragraph and one more paragraph, said to the jury (N.T. 507):
"Now if I read any of these too fast, I want you, any member of the jury, of course, to stop me.
"Do you think you have understood them as I have read them?
"You are all nodding your heads affirmatively, that I haven't read these too fast, and you understand them. That will go on the record."
In spite of the trial judge's use of the word "any," counsel for plaintiff contended at the argument of the motion for new trial that the jury, by nodding their heads, only indicated that they understood the paragraphs read after his interruption of the trial judge (paragraphs 8, 13, and the following paragraphs), and he still contends the jury could not have understood paragraphs 1, 2, 4, 6 & 7. The trial judge has acted on the motion for new trial and prepared this opinion on the assumption that these five paragraphs were not read in order to give plaintiff the benefit of every doubt, although the trial judge believes the jury, by nodding affirmatively, indicated they understood these paragraphs.
"We ought not, therefore, forever base decisions on unverified assumptions about jurors' comprehension of differences between `preponderance' and `conviction.'"
"Now, this is one of the big points for you, this question of whether the plaintiff has proved to you by a preponderance of the evidence that there was a failure to use reasonable care under all these circumstances. There she was with her galoshes, her overalls, her work jacket. The evidence must do more than raise a doubt in your mind on these points, if plaintiff is to sustain the burden. If there is just a doubt in your mind, you must bring in a verdict for the defendant, and that ends your consideration of the case. You don't need to go any further. On the other hand, if you are convinced by the preponderance of the evidence that the defendant or its employees, other than the plaintiff, were negligent, and that this negligence was a factor in causing the injury, then you must find for the plaintiff."
As pointed out above, other portions of the charge made clear that it was the "fair" preponderance of the evidence which was involved. However, the United States Supreme Court, in discussing at length the burden of proof in a civil case, has referred to the "preponderance of the evidence", not the "fair" preponderance of the evidence. See Commercial Molasses Corp. v. New York Tank Barge Corp., 1941, 314 U.S. 104, at page 113, 62 S.Ct. 156, at page 162, citing Sweeney v. Erving, 1913, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, where Mr. Justice Pitney used the phrase "the preponderance of the evidence" at several places in his opinion. See, for example, 228 U.S. at pages 238-239, 33 S.Ct. at page 418.
"* * * where the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of fact is unable to resolve."
"* * * the burden of proof was upon the plaintiff, and we know of no federal rule which limits the number of times that that truth, or any other truth, may be restated by a federal judge in a charge which on the whole is accurate and fair."
"The railroad may not defend on the ground that the plaintiff assumed the risk of working at this location which it prescribed. On the other hand, the railroad is not the insurer of the safety of all its employees. It does not guarantee their safety. All it is required to do under all the circumstances is to provide a reasonably safe place for its employees to work."
When the above-mentioned portions of the charge (those referred to in the first sentence under C) are read together with the above paragraph, the trial judge does not believe this contention is justified.
"The Reading Company has the duty to use reasonable care in providing its employees with a safe place to work. I didn't mean to indicate that Mr. Di Luzio had the whole job. It is the job of the company, and if any of their employees were negligent, or if they were negligent in omitting to send superiors out there, if you feel that the circumstances would require them to send out superiors to this type of crossing for this type of work, and they didn't do it, that is negligence, there is no question about it."
"* * * we will show you, first of all, that Mrs. Burch did not fall in between the rails of the crossing on the Railroad Company's right of way that it is its responsibility to maintain, but that she fell on this street, this paved amesite street belonging to the City of Philadelphia.
"Mr. Richter: Now, Your Honor please, that is creating a misstatement of the law. Your Honor said not to talk about law.
"Mr. Brown: I am not talking about the law.
"The Court: There is no question of the law. He is just explaining his version of the facts.
"Mr. Richter: No argument about the facts, but I don't want any misstatement about the legal obligation of the railroad in relation to the street, too, as well as the railroad. We discussed that yesterday in chambers, Your Honor.
"The Court: Yes, I appreciate that. All Mr. Brown means to say, I am sure, is that he will show that this fall occurred on the street." (Emphasis supplied.)
The italicized language indicates that it may have been plaintiff who pointed out this possible legal argument to the jury.
"Even if you believe plaintiff's position that there were so many pebbles that an unsafe condition existed, you must consider, among other things, whether the defendant's foreman, Mr. Di Luzio, who was the defendant's chief representative on the scene, should have had notice of this condition, in view of the fact that only an hour, approximately, elapsed between the time work started at this location and the time of the accident and the fact that plaintiff herself admitted that all the other workmen, except the man loosening the dirt in the pile of dirt for her, were on the other side of the railroad track.
"You must decide whether this condition existed long enough so that the defendant, under all the circumstances, could be said to have failed to have used reasonable care in not removing the pebbles by sweeping or otherwise."
"If you find that the injury resulted from an accidental slip on one of a few pebbles, neither the defendant nor the plaintiff could be said to be negligent, and you must find a verdict for the defendant, of course. The railroad isn't responsible for accidents. They might happen anywhere."
"* * * the question of whether under all the evidence the accident was unavoidable or was due to the negligence of the defendant and its agents was properly submitted to the jury."
In the Weschler case, the court said "an accident may be one for which neither party is responsible." In the Springfield Township case, the court said "`Accident, and its synonyms casualty and misfortune, may proceed or result from negligence, or other cause known, or unknown.'"
"* * * the more logical view is that the failure to produce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances."
"* * * the better rule is that, the reasons for non-production of evidence being so many and various, comment thereon should be within the discretion of the trial judge who is in a far better position to determine the occasion for it, * * *."
"Is there any doubt about there being pebbles? There have been sitting in the back of the room other men who were there working that same day. They are are employees still on the payroll. Why didn't they call those men up here and let any one of them say there weren't pebbles? They sat here in the courtroom, and not one of those fine, honest men was called outside of the boss. Why didn't they call the others and let them say it was a good street and a good crossing and it was safe? They are here. They are under their control. They are still working for the defendant.
"The railroad company didn't dare call them. That is why. Those men would have come in and would have been just as honest as Mr. Di Luzio, who told you there were pebbles and said, `I saw the mark myself in the street.'"
"You are entitled to consider the fact that the other railroad witnesses who were there were not produced. However, you must also remember they were in the courtroom. They were sitting back there. The railroad had them here. The plaintiff could have called them the same way he called the railroad's doctor, Dr. Cherner. They were here, and you can consider that most of them were on the other side of the track. They were not working on the same side with the plaintiff, according to her own testimony, so maybe that is why they were not produced, but that is up to you to consider. They were not produced, and they were here.
* * * * *
"As you know, I mentioned that these employees of the railroad were in the back of the room and that they were not called as witnesses. I mentioned that because that is something which you can find, if you so desire, if you feel it is significant as a point, indicating that the defendant might have called them and didn't, and that is all there is to that, and I think that is in accordance with the arguments which were made to you by counsel."
"Furthermore, it seems plain that possible witnesses whose testimony is for any reason comparatively unimportant, or cumulative, or inferior to what is already utilized, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony. In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non-production of witnesses whose testimony would be superior in respect to the fact to be proved."
"And will you go on and tell us, please, what the condition of that street was as of about that time.
"Mr. Brown: If Your Honor please, my understanding is that the witness is now testifying to what happened in April of 1951, and I submit that that is not relevant.
"The Court: I understand the witness has testified that before any contract is let he inspects the street very carefully.
"The Witness: No; no, sir; not before the contract is let, sir. After the contract is let and the date to proceed is set. For instance, if we set the date as of April 1, that is the date that I go on the job.
"The Court: Oh, I see. So you did not inspect the street in November 1950?
"The Witness: No."
"As pointed out, there were conflicts in the testimony and it was the duty of the (fact finder) to reconcile them if possible and so to determine what the truth was."
In this connection, paragraph 15 of the Motion for New Trial states "The Court erred in its charge that Dr. Farrell's testimony and Dr. Jones' testimony could be reconciled." Dr. Farrell (called by plaintiff) testified that X-ray pictures taken by him on November 9, 1955, of the left ankle show "some condition which is known medically as atrophy" and some evidence of arthritis (N.T. 138-139). Dr. Jones (called by defendant) testified that he had examined many X-ray plates (N.T. 403) of plaintiff (including those taken by Dr. Hermel on October 27, 1955, of both the right and the left ankle of plaintiff — N.T. 389-390), that "From the viewpoint of the X-rays, no, she has no atrophy" (N.T. 410), but that plaintiff had had soft tissue atrophy which was disclosed by his examination of her on October 27, 1955 (N.T. 404, 409, 409a). On cross-examination concerning the findings of Dr. Farrell, Dr. Jones testified:
"I wouldn't make any statement on a unilateral x-ray because you have to compare the opposite side for comparison purposes, because there is a great deal of variation." (N.T. 410).
In the light of this testimony, the trial judge charged that "much of the medical testimony can be reconciled, I believe, but again it is up to you" (N.T. 485). The charge continued to state, as an example of reconciling the testimony of witnesses, that Dr. Jones testified that he was unable "to rely on Dr. Farrell's testimony because Dr. Farrell's x-rays had only been of the left foot, and unless you took x-rays of both the left and the right foot and could compare the two of them, you would get an inaccurate opinion in certain circumstances. It is up to you to see whether you can reconcile those two and whether this reason for the difference which Dr. Jones explained was a reasonable reason for a difference or whether you believe Dr. Farrell and don't believe Dr. Jones or you don't believe either of them. That is up to you, but you must consider the testimony and decide whether you can reconcile it, fit it together into a pattern, or whether you can't." (N.T. 486). The trial judge believes that this portion of the charge, when read as a whole, is in accordance with the rules of law stated above.
Also, it is noted that this paragraph of the charge leaves the question up to the jury by concluding (N.T. 495):
"It is up to you as to whether you think that possible conflict is important."
"* * * nothing I said should be allowed to make you feel that the plaintiff had not sustained her burden of proving this case or that she had. That is for you to decide. That is your problem. All I can tell you is the law, which is that the defendant has the duty to use reasonable care and to provide this plaintiff with a reasonably safe place to work under all the circumstances."
"You may feel that in addition to the interest of the plaintiff, some of the employees of the Reading Company, because of their working for the Reading Company, had an interest, and that you should discount their testimony on that ground. That is up to you."
(a) The charge never pointed out that plaintiff was walking with an empty shovel when she fell.
(b) The court gratuitously pointed out, after reading plaintiff's 8th request for charge: "Mr. Di Luzio admitted that after the accident he saw loose pebbles and stones in the immediate vicinity where the plaintiff fell."
(c) As pointed out above under III-B, the charge specifically stated that the failure to call the other members of the plaintiff's section gang could be the basis of an inference against defendant in accordance with the argument of counsel (plaintiff's counsel, as he was the only one who had based an argument on this point — see footnote 67), thereby adopting the language of plaintiff's closing speech on this point.
(d) The charge did not comment on the testimony that on March 24, 1953, a doctor treating plaintiff made an entry in her medical report that her "demeanor and story make me feel that ASA grains 10 (a form of aspirin pill) will help this patient as much as anything" (N.T. 162-163).
"There would be no recovery for this if you believe the plaintiff was unreasonable in trying to rehabilitate her leg through using it and that she was able to work in July 1951. If she has co-operated in trying to get well but has not recovered, even though her doctors were not good doctors, that is not her fault, and then her recovery for this second item of damages would vary from $23,000 to $27,800, * * *.
* * * * *
"* * * you must give her something for pain and suffering, because she did have very real pain, very real suffering, very real inconvenience during this period, and it is admitted by everybody that this business of putting weight on a broken ankle is painful, it hurts to get it well. On the other hand, a person has a duty to get it well, has a duty to try to cooperate and reduce the amount of damage."
"Q. Dr. Cherner, as a result of your department's conversation with Dr. Vastine of the Women's College Hospital, was it or was it not concluded that this woman was able to use her left ankle or foot without having any such operation? A. It was."
"* * * in July 1951, Dr. Wolcott felt that an open reduction operation would be desirable because the plaintiff complained of pain preventing her from working. In the letter of August 22, as a result of x-rays, and a typographical error in a previous report, he changed his position and stated that he would not perform an operation.
"Now, this is my memory of the testimony and yours may be different. Dr. Wolcott's position in wanting to do an open reduction was changed as a result of the stand taken by doctors employed by the Reading Company, but I can remember nothing in the record that indicates that his mind was not completely changed by the opinions of the doctors. However, counsel for plaintiff has argued to you that Dr. Wolcott was prevented from doing this operation by the Reading Company doctors, and you may remember some evidence on this which I have overlooked."
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