Taylor v. Baltimore & Ohio Railroad Co.

• Decision Date: 02 April 1965
• Docket Number: No. 304,Docket 28175.,304
• Citation: 344 F.2d 281
• Parties: Curtis TAYLOR, Plaintiff-Appellant, v. The BALTIMORE & OHIO RAILROAD CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

344 F.2d 281 (1965)

Curtis TAYLOR, Plaintiff-Appellant, v. The BALTIMORE & OHIO RAILROAD CO., Defendant-Appellee.

No. 304, Docket 28175.

United States Court of Appeals Second Circuit.

Argued January 22, 1965.

Decided April 2, 1965.

Edward J. Bloustein, New York City (Fuchsberg & Fuchsberg, Jacob D. Fuchsberg, New York City, of counsel), for plaintiff-appellant.

Eugene Z. DuBose, New York City (Alexander & Green, Donald M. Dunn and Alfred C. Moran, New York City, of counsel), for defendant-appellee.

Before MOORE, FRIENDLY and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge:

Curtis Taylor was a freight handler employed by The Baltimore & Ohio Railroad Co. (B & O) on a North River pier. On the night of December 24, 1956, he was helping unload a car float by driving a tractor hauling six "flat trucks" from the float over a gangplank to the pier, and back to the float for reloading. On one of these return journeys, Taylor suffered a back injury, as recounted later in this opinion. On December 26, after he had returned to work, the B & O reported the incident to the Office of the New York Deputy Commissioner of the U. S. Department of Labor administering the Longshoremen's and Harbor Workers' Compensation Act. The report, on a form prescribed by the Department and signed by a freight agent, described the accident as follows:

"He pulled a line of empty trailer trucks up the plank when his tractor stalled halfway up. Another operator pushed the line from behind with his tractor up the plank. In doing so, Taylor was jarred."

On November 20, 1957, Taylor brought this action under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, against the B & O in the District Court for the Eastern District of New York. The case was not tried until February, 1963. Taylor's testimony was that a fellow employee, Green, had negligently driven a tractor against the last of Taylor's flat trucks while Taylor's tractor and string of trucks were still on the pier bulkhead. Green testified that he saw Taylor's tractor stopped halfway up the gangplank, with a rear wheel slipping, with some flats on the plank and some on the pier bulkhead, and that as Green was maneuvering to give the caravan a push, his own tractor hit Taylor's last flat truck.

The judge charged that the first thing the jury must determine was where Taylor was injured, and that if they found he was then on the gangplank, they must render a verdict for the defendant.¹ Taylor's counsel objected only to the judge's instructing the jury to consider this issue first — not to the legal principle charged. See Interlake S. S. Co. v. Nielsen, 338 F. 2d 879 (6 Cir. 1964); Caldaro v. Baltimore & O. R. R., 166 F.Supp. 833 (E.D. N.Y.1956).

After deliberation the jury announced through the foreman, "We, the Jury, find the plaintiff to have been on the gangplank." The judge had this restated and recorded as a general verdict for the defendant. All of Taylor's contentions in this court concern the exclusion or admission of evidence bearing on the place of the injury.

(1) Taylor's lawyer had interviewed Alfred Smith, a fellow employee on the pier, and had taken a signed statement from him, on November 2, 1957 — more than ten months after the accident and a few weeks before suit was brought. In the statement Smith recounted that, on the night of the accident, he had seen Taylor pulling some empty flats heading for the float, and that "as he Taylor approached the gangplank, he stopped on the bulkhead to change to a low gear," at which time another tractor crashed into the last flat truck, and that "it looked like a pretty hard bang." When, having been called as a witness by Taylor at the trial, he was asked whether he had seen or heard something happen that involved Taylor, he answered, "Well, I heard something. That's all." The judge gave Taylor's counsel full opportunity to use the prior statement to refresh Smith's recollection by having Smith reread it to himself but refused to receive it in evidence as affecting Smith's credibility.

The evidentiary status of a prior inconsistent statement of a witness on the stand has been much discussed, particularly since Dean Wigmore's celebrated swerve to the admittedly unorthodox position that the statement should be received as substantive evidence since, by the witness' availability for cross-examination, "the whole purpose of the Hearsay rule has already been satisfied." 3 Wigmore, Evidence § 1018, at 687-88 (3d ed. 1940). At the last term we followed that view to the extent of upholding the reception as substantive evidence of inconsistent testimony of the witness at a former trial and before a grand jury (and also prior identifications vouched for in such testimony). United States v. De Sisto, 329 F.2d 929 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). We went no further because we entertained doubts both as to whether we could, see Bridges v. Wixon, 326 U.S. 135, 153-154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), and as to whether, having in mind the ease of putting thoughts into the minds of prospective witnesses, we should. At the trial in this case, Taylor's counsel did not seek, at least in form, to offer Smith's statement as substantive testimony; he offered it merely for impeachment.

If Smith had testified that he had seen the accident and that Taylor had been on the gangplank, Taylor would indeed have been entitled to have the prior statement received to impeach the credibility of his turncoat witness by the express command of N.Y.Civ.Prac.Act § 343-a, now CPLR Rule 4514, see Puggioni v. Luckenbach S. S. Co., 286 F.2d 340, 343 (2 Cir. 1961), and such reception would also have been proper under federal decisional law apart from the New York statute, see United States v. Allied Stevedoring Corp., 241 F.2d 925, 932-933 (2 Cir.), cert. denied, 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed.2d 1143 (1957). The distinction correctly made by the judge was that here Smith had testified to nothing damaging to Taylor's case; he had simply disclaimed any relevant testimonial knowledge. The authorities are nearly unanimous that in such cases a prior inconsistent statement of facts favorable to the proponent of the witness may not be used to impeach. See 3 Wigmore, supra, § 1043, citing many cases; McCormick, Evidence § 36, at 67, and cases cited in n. 7 (1954); Note, 62 Yale L.J. 650, 653-54 (1953); Kuhn v. United States, 24 F.2d 910, 913 (9 Cir.), modified on other grounds on rehearing, 26 F.2d 463, cert. denied, Lee v. United States, 278 U.S. 605, 49 S.Ct. 11, 73 L.Ed. 533 (1928); Westinghouse Elec. Corp. v. Wray Equip. Corp., 286 F.2d 491, 493 (1 Cir.), cert. denied, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961).² "The maximum legitimate effect of the impeaching testimony can never be more than the cancellation of the adverse answer by which the party is surprised"; "where the witness gives no testimony injurious to the party calling him, but only fails to render the assistance which was expected by professing to be without knowledge on the subject, there is no reason or basis for impeachment under the rule." Kuhn v. United States, supra, 24 F.2d at 913. In the absence of New York authority opposed to the consensus — and none has been cited to us — we are unwilling to construe the general language of Civ.Prac.Act § 343-a as commanding departure from such a wellsettled principle.³

We realize that in strict logic the analysis quoted from the Kuhn opinion is not quite the whole story. If a witness who once professed testimonial knowledge favorable to the proponent denies this knowledge on the stand, the mind asks what caused the change and recognizes that wrongful pressure from the opponent might be the explanation. Intimidation of the witness would, of course, be independently relevant, and proof of this admissible. 2 Wigmore, supra, § 278. But mere failure of a witness to repeat a prior statement helpful to the proponent gives an exceedingly slight basis for drawing the inference. The first statement itself may have been wrong and the oath or the prospect of cross-examination may have led the witness spontaneously to correct it; if the opponent had spoken to the witness, he can as well have been asking information as giving directions; or the witness may simply have forgotten — a fair possibility here, when over five years had intervened between the accident and the trial. The basis for an inference of intimidation is extremely weak as against the danger that if the statement is admitted, the jury will use it substantively regardless of what the judge may say. See McCormick, supra, § 39, at 77. "When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out." Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 26, 78 L.Ed. 196 (1933). Moreover, even if we should assume it was proper for the jury to know that Smith had once said something favorable to plaintiff, they were hardly so obtuse as not to get the point from an examination, stretching over nearly four typed pages, in which Taylor's counsel confronted Smith with his written statement; asked repeatedly whether he had understood it; inquired whether it refreshed his recollection of where Taylor was when he heard the noise; and asked, and received affirmative answers, as to whether Smith's supervisors were in court.

(2) The B & O called Dr. Sigmund Falk, to whom it had sent Taylor for an examination on January 8, 1957. The doctor testified that, under his office procedure, his secretary would first record a history on a card, and the patient would then bring this to the doctor who "checks on it * * * by talking to the patient." One item on the card, which was received in evidence over objection, calls for the place of the injury; this was filled out "Pier 66, gangplank, North River, N. Y." Plaintiff argues that reception of the card as evidence on this issue contravenes the holding of a closely divided court...