O'Connell v. Pennsylvania Co.

• Decision Date: 02 December 1902
• Docket Number: 1,122.
• Citation: 118 F. 989
• Parties: O'CONNELL v. PENNSYLVANIA CO.
• Court: U.S. Court of Appeals — Sixth Circuit

118 F. 989

O'CONNELL v. PENNSYLVANIA CO.

No. 1,122.

United States Court of Appeals, Sixth Circuit.

December 2, 1902

The plaintiff, while a switchman in the service of the Pennsylvania Railroad Company, sustained the loss of a leg. For this injury he brought this suit, claiming that his foot slipped from a bent and damaged iron step at one end of a car he was climbing in discharge of his duties, and that his foot was thereby thrown on the rail in front of a revolving wheel and crushed. At the conclusion of the plaintiff's evidence, and before any evidence by the defendant, the court below instructed the jury to find for the railroad company.

Charles Koonce, Jr., for plaintiff in error.

Wm. C Bayle, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, announced the opinion of the court.

Three errors are assigned: First. In the admission of evidence in chief for the defendant in cross-examination of the witness Forney, a witness introduced by the plaintiff for the sole purpose of proving the number of the car from which the plaintiff fell. Second. In the exclusion of the testimony of the witness Richards touching the identification and condition of the car from which plaintiff fell. Third. As to the action of the court in directing a verdict. These may be treated in the order stated.

1. The evidence tended to show that the plaintiff was a switchman employed in switching ore cars in a yard assigned to the National Steel Company at Youngstown, Ohio. At about 7 o'clock on the night of December 8, 1899, while attending to his duties, plaintiff opened a switch to admit a train of ore cars being pushed by an engine; the object being to transfer the cars from one part of the yard to another. After setting the switch for the main track, he gave the signal to the engineer to 'come ahead.' When the first car reached the point where he was standing, he attempted to climb on, by reaching out and grasping the handhold, and then springing so as to place his foot in the stirrup at what was the then forward and westward end of the car, the car being the first or front car as the train was then moving. Plaintiff testified that the train at the time was moving at a speed of not exceeding three miles per hour. The tracks at the locus in quo run east and west, and the train of cars was being pushed westwardly. Plaintiff was on the north side of the track. He testified, among other things, as follows:

'I had my lantern on my right arm; put my hand up for the handhold; got it all right, and sprang for the step; I just got a glimpse of it, and saw that there was a step there and my foot slipped off,-- hit the side of the step, and slipped off, and fell on the rail.'

He further said that the step he undertook to place his foot in was on the corner of the car,-- the northwest corner as the car then stood; that it was an iron step, bolted on the sill, and hung below the outer edge of the bottom of the car; and that such steps are a part of the ordinary equipment of freight cars. When asked as to the condition of the step and the circumstances of the accident, the plaintiff, among other things, said 'that his foot hit the side of the step,' 'on the north side or on the west side; and, from the way my foot hit it, it was slanting way back, the same as I would put my foot up, and felt as though it was slanting back towards the end sill of the car. ' For the purpose of identifying the car from which he fell, plaintiff introduced one Elias Forney, a member of the switching crew, and asked Forney if he knew the number of the first car in the train which was being pushed up the track at the time he (O'Connell) sustained his injury, and to give any other marks or words by which it was distinguished. The witness answered that the number of the car was 47,923, and that it was an Erie car. The plaintiff then stopped, and turned the witness over to the other side for cross-examination. On cross-examination he stated that he discovered the number and description of the car at between 11 and 12 o'clock the night of O'Connell's injury, having first gone with O'Connell to the hospital. He said that the car had been shifted while he was gone, but that he got its number from the conductor's report, and then hunted it up, and saw it was an Erie car. In further cross-examination the following occurred:

'Q. Did you examine the northwest step of the car? A. Yes, sir. Q. Was that step bent back on the car you examined? A. No, sir. Q. What was the position of the step on car 47,923 when you saw it? A. The step was solid. Q. Straight down? A. Yes, sir; bolted on the side sill with bolts.'

All this was objected to by the plaintiff in error as not legitimate cross-examination, but evidence in chief. It was however, admitted, over objection, as proper cross-examination. This statement as to the condition of the step on the car examined by the witness was plainly evidence in chief. The witness should have been recalled if the defendant so desired, and thus made the witness of the defendant as to the condition of the step on the car examined by the witness was plainly evidence in chief. The witness should have been recalled if the defendant so desired, and thus made the witness of the defendant as to the condition of the step of the car he had identified by number and name as the car from which plaintiff fell. Montgomery v. Insurance Co., 97 F. 913, 38 C.C.A. 553, 557; Wills v. Russell, 100 U.S. 621, 625, 25 L.Ed. 607; Houghton v. Jones, 1 Wall. 702, 706, 17 L.Ed. 503. The cases cited above are all cases where the trial court had properly applied the rule limiting the cross-examination to the matters opened up by the examination in chief, and in Wills v. Russell the court calls attention to the fact 'that the mode of conducting trials, and the order of introducing evidence, and the time when it is to be introduced, are matters properly belonging very largely to the practice of the court where the matters of fact are tried by a jury. ' 'Cases,' said the court, 'not infrequently arise where the convenience of the witness, or the court, or the party producing the witness will be promoted by a relaxation of the rule to enable the witness to be discharged from further attendance; and if the court, in such a case, should refuse to enforce the rule, it clearly would not be ground of error, unless it appeared that it worked serious injury to the opposite party. ' While we are disposed to concede to a trial judge wide limits in the suspension or enforcement of the rule in reference to the proper limits of a cross-examination and in respect to the order in which evidence is to be introduced, yet we must reserve to this, as a reviewing tribunal, such authority in respect to even such questions of practice as that any serious injury to the rights of the party complaining of the relaxation of the rule may be corrected by granting a new trial, if necessary. In the instance before us the case turned upon the question as to whether the plaintiff's injury was due proximately to a defective appliance. Without having asked the witness Forney a single question in respect to this matter, the defendant was permitted to affirmatively show that no such defect existed as that claimed by the plaintiff. A consequence was that, upon this very affirmative evidence, the defendant, at the close of plaintiff's evidence, asked and obtained a direction to find for the defendant in error. This verdict was directed, as is shown by the charge of the court, upon the ground that this positive evidence, delivered by Forney, that the step was not defective, was not so contradicted by the evidence of other witnesses as to make a case for the jury. We are not prepared to say that in this particular instance the suspension of the usual and proper rule in regard to the limits of a cross-examination did not operate to the very serious injury of the plaintiff's case. Certain it is that no reason appears which appealed to the discretion of the trial judge. ...