Bradley v. Adams Express Co.

• Decision Date: 05 March 1937
• Docket Number: No. 7079.,7079.
• Citation: 89 F.2d 641
• Parties: BRADLEY et al. v. ADAMS EXPRESS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

89 F.2d 641 (1937)

BRADLEY et al. v. ADAMS EXPRESS CO.

No. 7079.

Circuit Court of Appeals, Sixth Circuit.

March 5, 1937.

William Waller, of Nashville, Tenn. (K. T. McConnico and C. P. Hatcher, both of Nashville, Tenn., on the brief), for appellants.

F. M. Bass, of Nashville, Tenn., and Branch P. Kerfoot, of New York City (Bass, Berry & Sims, of Nashville, Tenn., on the brief), for appellee.

Before HICKS and SIMONS, Circuit Judges, and LEDERLE, District Judge.

LEDERLE, District Judge.

The question in this case is whether the trial court committed reversible error in permitting an expert witness to read into the record excerpts from a printed publication.

Appellants claim damages because of the destruction or injury of a number of race horses that were being transported by appellee, a common carrier, at the time the wreck occurred on July 7, 1915.

Another case involving the same wreck was tried at an earlier date and the decision of the trial court was affirmed by this court and later by the Supreme Court. Adams Express Company v. Darden, 286 F. 61; Id., 265 U.S. 265, 44 S.Ct. 502, 68 L.Ed. 1010.

In the present case the jury returned a verdict in favor of the defendant. Appellants contended that the wreck was caused by the defective equipment of the railroad company. The appellee contended that a heavy windstorm was the sole cause of the wreck. This question of fact was submitted to the jury by the court and no exceptions were taken to the court's charge.

The court instructed the jury that "a common carrier is in the nature of an insurer and it is its duty to safely deliver freight entrusted to it to the point of destination. It is required to furnish safe vehicles in which to transport freight," and the court further instructed the jury that the burden is upon the defendant to show "by a preponderance of the evidence by clear proof that the accident was caused by the windstorm alone and not through any fault or negligence of its own."

During the trial of the case much of the proof consisted of the transcribed testimony of witnesses taken in the case of Adams Express Company v. Darden, supra. Much of this testimony tended to prove that the accident was caused by a defective freight car. Appellee called as a witness in this case one Dr. L. C. Glenn, a professor of meteorology at Vanderbilt University who qualified as an expert in that field. He testified that in his opinion based upon the facts in evidence that the storm at the time and place of the wreck was an actual tornado and that it could have caused the wreck. On redirect examination he was asked by appellee's counsel if the government reports did not show that on other occasions cars had been blown out of a moving passenger train by a storm in a similar manner. Appellants objected. The court overruled the objection and exceptions were duly taken by all of the appellants. Thereupon, the witness answered the question in the affirmative. Thereafter, and over the objection of the appellants, the witness read into the record excerpts from the Monthly Weather Review issued by the United States Weather Bureau, which the witness and appellee's counsel intimated was an official publication of the United States government, and appellants' counsel were of the opinion that it was an official record and raised no objection to it on that ground.

The trial court admitted this testimony on the ground that appellants' counsel in the cross-examination of two of appellee's witnesses, asked the same questions. It is the claim of appellants that they merely asked the questions to test their qualifications as expert witnesses, their veracity, and their knowledge of matters to which they testified. It was the court's opinion that appellants' examination went beyond this and injected matters into the case which would be highly prejudicial if appellees were not...