Hawkins v. Missouri Pac. R. Co.

• Decision Date: 16 March 1951
• Docket Number: No. 14043.,14043.
• Citation: 188 F.2d 348
• Parties: HAWKINS v. MISSOURI PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

188 F.2d 348 (1951)

HAWKINS v. MISSOURI PAC. R. CO.

No. 14043.

United States Court of Appeals Eighth Circuit.

March 16, 1951.

J. Fred Jones, Little Rock, Ark. (Edward E. Stocker, Little Rock, Ark., on the brief), for appellant.

Pat Mehaffy, Little Rock, Ark. (Henry Donham, Little Rock, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

In an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., there was a verdict for the employer, on which the court entered judgment, and the employee has appealed.

Appellant claimed that a switch engine, on which he was working as a brakeman in appellee's yards at Spadra, Arkansas, had been started forward without a signal, while he was crossing the track in front of it, and that as a result he had received certain injuries. Appellee's contention was that the engine had been moved only on a signal from appellant himself, given after he had crossed over the track and was standing on the right hand side thereof, and that the accident had occurred when he undertook to mount the footboard, as the engine was passing him, and slipped or fell on it, without any fault of appellee. Appellee further denied that the accident had occasioned any such injuries to appellant as he claimed. The parties were in agreement that the engine was not moving more than two to three miles an hour at the time of the mishap. The evidence in the record would support a verdict for either party, on each of the respective claims and contentions made.

Reversal is sought on rulings of the trial court in matters of evidence and in relation to alleged remarks of appellee's counsel in argument to the jury.

The first point urged is that the trial court erred in sustaining an objection to the following question put to another brakeman of the switching crew, whom appellant called as a witness: "Did Mr. Hawkins (appellant) tell you how this accident happened?" It is contended that answer to the question should have been permitted as part of the res gestae. No foundation was laid for the receipt of any such statement on the part of appellant to the witness, other than to show that a conversation had occurred between the two subsequent to the accident, while appellant was sitting on the footboard of the engine. The witness testified to no observation of any abnormal physical or mental condition or other circumstance which might ordinarily suggest spontaneity. And appellant's own testimony had previously indicated that he did not leave his work after the accident but remained at his tasks for the remainder of the day. In this doubtful setting, we can not say that the trial court could not require that some further indication of non-reflectiveness be established by the witness' testimony, before appellant's statement as to how the accident occurred would be received as a res gestae declaration. See Wigmore on Evidence, 2d ed., § 1747; Navajo Freight Lines, Inc., v. Mahaffy, 10 Cir., 174 F.2d 305, 308, 309.

Beyond this, and in further relation to the right to a reversal, appellant did not undertake to disclose what the witness' testimony in fact would have been, by an offer of proof. Seemingly, counsel at the time did not regard it as of any particular moment whether the testimony was received or rejected. Whatever, however, may have been the situation in this regard, the failure to comply with the requirement of rule 43(c) of the Rules of Civil Procedure, 28 U.S.C.A., as to making offer of proof, leaves appellant here without any basis for complaint of the trial court's action. This is not a situation of such plainness and certainty as to what the witness' testimony would be that the making of an offer of proof could properly be regarded as a mere futility. Cf. Cropper v. Titanium Pigment Co., 8 Cir., 47 F.2d 1038, 1042, 1043, 78 A.L.R. 737; Gantz v. United States, 8 Cir., 127 F.2d 498, 503. And equally, the situation can not be said to be one that involves such a plain probable miscarriage of justice on seeming error as to entitle it to be urged that we should act sua sponte, without regard to procedural preservation and actual demonstration of the asserted error.

The second point urged is that the trial court erroneously allowed medical experts for appellee to testify that a certain physical condition, which appellant claimed he had, would more naturally and probably be produced by an accident of a particular type, such as appellant had sustained some years before in other employment, than by an accident of the type involved in the present suit.

Appellant's doctor had testified that appellant had some compressed vertebrae, occasioned by fractures, which in his opinion had been produced by the present accident. Appellee's experts admitted that appellant's spine contained some depressed or deformed vertebrae but said that the condition was one of such physically-indicated duration that, even if it were possible to regard it as having been occasioned by fracture, the fractures would have had to have occurred before the present accident.

Appellant had admitted in his cross-examination that some 20 years previously, while in other employment, he had had an accident which had caused him to fall a distance of 6 to 8 feet and to light on his buttocks. This accident had been the subject of a suit against his then-employer. Injury to the region of his tail bone had been asserted by him in that suit, but it did not appear, however, that he had made any claim of existing compression fracture of the vertebrae at that time. On cross-examination of appellant's doctor, the question was asked, without objection, whether such a type of fall as was involved in appellant's previous accident, a description of which was made to the witness, was not "the one which most usually results in a compression fracture of the thoracic vertebrae or the upper lumbar vertebrae," and the witness replied, "Yes, sir, it is a very common cause."

When appellee later undertook to ask one of its own medical experts, after describing the fall involved in the previous accident and that involved in the present suit, "Which of the two types of occurrences is most likely or would most usually result in compression fractures?", it was objected that such an abstract question amounted to mere speculation, and that in any event answer thereto would constitute an invasion of the jury's province. The court overruled the objection, and the witness answered that a fall upon the buttocks was the type of accident which was the more likely to occasion compression fractures of the lower vertebrae. The witness went on to give the reasons and basis for his answer. It was made clear by the evidence, however, that of course it was not impossible for either of the two types of fall to produce such fractures.

We do not think that the court erred in allowing the question to be answered in the situation....