Felice v. Long Island Railroad Company

• Decision Date: 25 February 1970
• Docket Number: No. 391,Docket 33714.,391
• Citation: 426 F.2d 192
• Parties: Gabriel FELICE, Plaintiff-Appellee, v. The LONG ISLAND RAILROAD COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

426 F.2d 192 (1970)

Gabriel FELICE, Plaintiff-Appellee, v. The LONG ISLAND RAILROAD COMPANY, Defendant-Appellant.

No. 391, Docket 33714.

United States Court of Appeals, Second Circuit.

Argued January 7, 1970.

Decided February 25, 1970.

Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and MANSFIELD, District Judge.^*

Howard G. Kristol, New York City (George M. Onken, Jamaica, N. Y. and James C. Hansen, New York City, of counsel), for defendant-appellant.

Peter M. J. Reilly, New York City (Edward G. Dougherty, and Roland J. Tellier, New York City, of counsel), for plaintiff-appellee.

FRIENDLY, Circuit Judge:

In this action in the District Court for the Southern District of New York, Gabriel Felice sought to recover under the FELA for a back injury experienced while working at a shop of the Long Island R.R. After trial before Judge Metzner and a jury, he received a judgment for $100,460. Not disputing that there was sufficient evidence for the verdict, the Long Island complains of prejudicial errors at the trial.

On March 8, 1966, Felice, a car repairman, was working with two others, Bilello and Mazzeo, in removing, from the underside of railroad cars, cylindrical tanks that hold the pressurized air used in operating brakes. In the course of this work he seriously injured his back. On March 12 he consulted Dr. David Lipton, who directed hospitalization at Smithtown General Hospital, where he was placed in traction. When this did not succeed in relieving his pain, Dr. Moses Ashkenazy, a neurosurgeon, and Dr. Lipton performed a laminectomy on March 28. Fluid developed in the wound and was removed in April. On May 23 Felice was readmitted for severe leg pain, and another laminectomy and a fusion were performed on June 1.

The controversy concerned the cause of the injury. The railroad's theory was that this had resulted from the mere act of lifting the heavy tank — a cause that would qualify under a workmen's compensation act but not under the FELA. Felice testified that the railroad had failed to see that the premises remained reasonably clean and safe, and that he had slipped on a concealed spot of grease and oil. Defendant's case against this consisted of various records made shortly after the accident which report Felice as saying nothing about slipping. These included:

(1) An accident report prepared on March 8, 1966, by Caradonna, Felice\'s foreman. Under the rubric "Explanation of how reported injury occurred: (including actions leading up to alleged accident)," the report said "Lifting a tank on the hilo with another helper — back just went." The report named Bilello as a witness and quoted him to the same effect.

(2) A card filled out by a nurse in the office of the company\'s Medical Examiner, Dr. V. A. Capozzi, on Felice\'s first visit on March 11, 1966, reciting as his history, "picking up a tank with a helper (expansion tanks for brakes) picked up into hylo, pain in lower back * * *," and a statement reported in the Medical Examiner\'s report of the same visit, reciting under the heading "Statement of injured": "states — picking up a tank with a helper (expansion tanks for brakes) picked up into hylo, pain in lower back * * *."

(3) A record of the Smithtown General Hospital on Felice\'s admission on March 12, 1966, reciting "PT while working, lifted a heavy object and felt a snap in his back with marked pain since then."

(4) Workmen\'s Compensation Attending Physician Reports dated March 14 and 21, 1966, signed by Dr. Lipton, which said in answer to the questions "State how injury occurred and give source of this information"; "lifted heavy object injury to back."

With respect to item (1), Caradonna testified that he "would say" Felice had reported the injury but was not certain. Felice admitted that he reported the injury to Caradonna. Caradonna conceded that there had been complaints that the pit and aisles of the shop were dirty with grease, and that he had observed this at times.

I.

Plaintiff in his pre-trial memorandum had "reserved the right" to call Mazzeo; defendant had stated that it would call Bilello and Mazzeo. Neither was called. At plaintiff's request the court charged:

"Reference has been made by plaintiff to the failure of the defendant to call certain of its employees, Bilello and Mazzeo, who were eye witnesses to the accident. You may draw an inference, if you wish, that if such witnesses were called by the defendant they would have exposed facts unfavorable to the defendant."

Defendant made timely objection to this charge on the ground that the witnesses were equally available to both sides. The court overruled this, citing Case v. New York Central R.R., 329 F.2d 936 (2 Cir. 1964), and McCormick, Evidence § 249 (1954).

We think that in the press of trial the judge read these authorities too hastily. The Case decision, also a FELA case, concerned the propriety of admitting evidence by the defendant why it had not produced employees claimed by the plaintiff to have seen the accident; while we referred to the established principle that unexplained failure by a railroad to call such employees would give rise to an inference against it, and cited the well-known FELA case of Chicago & N. W. Ry. v. Kelly, 84 F.2d 569, 572 (8 Cir. 1936), we did not say that if the failure had not been explained, the inference against the employer was the only one the jury would have been entitled to draw. McCormick states, at p. 534, that where the uncalled witness' "relationship with one of the parties is such that the witness would ordinarily be expected to favor him" — citing the case of a family doctor — "then if such party does not produce his testimony, the inference arises that it would have been unfavorable." He then deals with the situation where as here "the witness would be as likely to be as favorable to one party as the other,"¹ and concludes that the judge "should permit either party to argue the inference against the adversary." But that does not mean that the judge may instruct the jury to consider the inference against one party and refuse to instruct concerning the inference to which that party is equally entitled against the other. If in such a situation one party requests a charge concerning the inference and the other objects, the judge, if he decides to charge on the subject at all, must do so in an even-handed manner, explaining to the jury why it would have been reasonable for either party to call the witness and what inference can logically be drawn from failure to do so.²

II.

Plaintiff called Dr. Lipton. Just before the doctor took the stand, the records of plaintiff's treatment at Smithtown Hospital had been received without objection. Counsel told Dr. Lipton that he could refer to his notes to refresh his recollection if he so desired. He proceeded to testify that when he first saw Felice on March 12, 1966, he took a history, and this was that "while at work for the Long Island Rail Road the patient lifted a heavy object and slipped on grease and twisted himself in an awkward position." Cross-examination developed that this testimony was not based on the hospital records but on a note the doctor had with him stating "Lifted heavy object and slipped on grease." Although at first the doctor said that this was "either written by myself or taken as a history by my girl," and that he believed it was in his handwriting, further cross-examination indicated that the portion of the note relating to the cause of the injury was written by his girl, whose name the doctor could not recall.³ Defendant's counsel objected to the testimony on the ground that no such record had been listed among the exhibits designated in the pretrial order. Still further cross-examination developed that Dr. Lipton had no recollection whatever of the history Felice had given.

A motion to strike the testimony was denied. It should have been granted. Dr. Lipton's recollection of Felice's statement was not refreshed; no adequate foundation was, or apparently could have been, laid for qualifying the note as a record of past recollection, McCormick, Evidence §§ 277, 279 (1954); and, whether or not the note would be admissible under the Federal Business Records Act, 28 U.S.C. § 1732, an issue discussed below, defendant was entitled to rely on the pre-trial order.

III.

This action was begun on April 4, 1966. Plaintiff was allowed to place in evidence, over objection, an Attending Physician's Medical Report by Dr. Ashkenazy dated May 18, 1966, which, under the same rubric with reference to the occurrence of the injury mentioned in item (4) above, recited:

Pt. states: "I was lifting a tank and I slipped and threw my back out of line."

He was also allowed to put in evidence a letter from the same doctor dated August 16, 1966, to the Railroad's Claim Agent, stating that Felice had been referred by Dr. Lipton "with the history that he was lifting a heavy object of about 200 pounds of weight on 3-8-66 when he slipped on some grease and suddenly had to bear the weight in an awkward position. He felt a snap and a tear in his lower back." Since Dr. Ashkenazy was not called as a witness, these statements were admissible, if at all, only by reason of the New York or Federal Business Records Acts, CPLR 4518, 28 U.S.C. § 1732. We can limit ourselves to the federal statute since any attempt by plaintiff to bring himself within the New York statute would face the barriers not only of Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), requiring that the entrant have witnessed the event or have obtained the information from one under a "duty" to transmit the facts, but also of Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417 (1955), excluding statements in medical records of "acts or occurrences * * * not germane to diagnosis or treatment, * * *."⁴

It would be hard to sustain the thesis that this court's many pronouncements concerning the Federal Business Records Act are wholly consistent, although any...