Hertz v. Graham

• Decision Date: 03 July 1961
• Docket Number: No. 150,Docket 26349.,150
• Citation: 292 F.2d 443
• Parties: Fannie K. HERTZ, Plaintiff-Appellee, v. Elizabeth N. GRAHAM, individually and doing business as Maine Chance Farm, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

292 F.2d 443 (1961)

Fannie K. HERTZ, Plaintiff-Appellee, v. Elizabeth N. GRAHAM, individually and doing business as Maine Chance Farm, Defendant-Appellant.

No. 150, Docket 26349.

United States Court of Appeals Second Circuit.

Argued January 13, 1961.

Decided July 3, 1961.

John J. Macchia, of Townley, Updike, Carter & Rodgers, New York City (J. Howard Carter and Lee W. Meyer, New York City, of counsel), for defendant-appellant.

William J. Manning, of Simpson Thacher & Bartlett, New York City (Cyrus R. Vance and Rolon W. Reed, New York City, of counsel), for plaintiff-appellee.

Before CLARK, MAGRUDER and MOORE, Circuit Judges.

MAGRUDER, Circuit Judge.

Plaintiff owned a race horse named Speedy Wave. Defendant also owned one named Star of Roses. The two horses collided on the training track at Belmont Park and both were killed instantly. Plaintiff sued Mrs. Graham for the loss of Speedy Wave. Defendant counterclaimed for the loss of Star of Roses. The jury brought in a verdict giving damages to the plaintiff for the death of Speedy Wave. Judgment was entered pursuant to the jury verdict, from which the defendant takes the present appeal. Wesley E. Brite, an exercise boy in the employ of the plaintiff, had, prior to the present litigation, recovered the sum of $80,000 in a separate action for the injuries he received in the accident. Brite v. Graham, Civil Action No. 97-240.

The testimony of Brite and of Monte D. Parke, who was employed as Mrs. Hertz's trainer, was to the effect that, on the morning of October 17, 1954, Brite, mounted on Speedy Wave, and Parke, mounted on a pony, entered the training track at Belmont Park. Their purpose was to "breeze" their horse, that is, to run it a measured distance in a given time, in this instance 3/8 of a mile in 36 seconds. Upon entering the track Brite and Parke encountered defendant's exercise boy and her foreman by the inside rail holding a horse, later identified as Star of Roses, by means of a shank. Parke called out to them, "You'd better get that horse off the track before you get run over." Star of Roses was led to the outside rail, and the exercise boy mounted it, though defendant's foreman still held onto the horse. Both Brite and Parke noted that Star of Roses was in this position when Brite started to breeze Speedy Wave in a counter-clockwise direction occupying only the inside rail, as was usual for breezing. The total width of the track was, as stated by both Brite and Parke, 90 to 100 feet. Neither of them related just what happened in the meantime. Parke testified that he saw the riderless Star of Roses running in a clockwise direction along the rail about "four jumps" before the accident. Brite did not see Star of Roses until the two horses were "10 or 15 feet away" from each other, and although he attempted to avoid the accident the horses collided.

The testimony tending to show that defendant had been guilty of negligence came entirely from three depositions which the district court admitted in evidence. These depositions, by George W. Cochrane, Peter G. Griffiths, and Patrick F. O'Neil, had been taken in the action brought by Brite against this same defendant to recover for his injuries. These three men had worked for the defendant at one time or another and their duties had included the training of Star of Roses. Mr. Cochrane, who was an assistant trainer for Mrs. Graham from April to June of 1954, deposed that Star of Roses was a "rogue" or "outlaw" which, unlike other two-year-old horses, had not been "broken" to gallop or breeze, but customarily would "duck to the left or to the right or would wheel completely around and dislodge his rider and run off." Each time Star of Roses was brought to the track without a lead pony, it succeeded in unseating its rider, said Mr. Cochrane. Griffiths, the trainer for five days in 1954, had similar experiences with Star of Roses, as did O'Neil, who from June, 1953, to May, 1954, was foreman and subsequently assistant trainer. O'Neil further observed Star of Roses on October 17, 1954, shortly before the accident in question. The horse went 100 yards down the track, dislodged its rider, then wheeled and ran clockwise along the rail. According to the depositions, Mrs. Graham did not allow those responsible for the training of the race horse to use spurs or whips, nor did she take notice of advice that Star of Roses was overstimulated sexually and should be gelded. Once Mrs. Graham awoke her trainer at midnight in order to fire him for having used a whip on Star of Roses. This trainer was said to be "one of the finest in the country."

We think it clear that there was sufficient circumstantial evidence submitted to the jury to justify a plaintiff's verdict that Mrs. Graham and her employees had been negligent and that this negligence had caused the accident. From the many recitals of unruly behavior, it was only natural to infer that Star of Roses merely repeated on the fateful morning what by then had become habitual with it. We cannot know with certainty the grounds upon which the jury based its finding of negligence, but many were available. Defendant knew the propensities of the beast but she did not prevent its being taken onto the track where other horses were apt to be breezing. Several methods of correcting Star of Roses' erratic behavior had been suggested: the horse could have been gelded; perhaps whipping would have deterred such conduct; a "ring" or "trap" or other device could have been used; a lead pony could have accompanied it onto the track.

Likewise it could not be said as a matter of law that the plaintiff or her employees were guilty of contributory negligence. When Brite started to breeze Speedy Wave, the inside rail was clear and Star of Roses was under restraint. Parke testified that he had no knowledge of the dangerous propensities of Star of Roses, though he surmised upon entering the track that Star of Roses had been "unruly." We do not forget that if the danger had been seen by Parke he had a duty to use care to avoid it. But we cannot say that this is a case where, on the undisputed facts, contributory negligence would have to be found by a reasonable jury. Townes v. Park Motor Sales, Inc., 1958, 7 A.D.2d 109, 180 N.Y.S.2d 553, affirmed 1959, 7 N.Y.2d 767, 194 N.Y.S.2d 37. The verdict for the plaintiff must be affirmed on the merits unless there is some other reason for reversing it.

Defendant urges two grounds for reversal. First, she says that the court below erred in dismissing her counterclaim, alleging that the fatal collision was caused by the plaintiff's negligence, she being free of the same. Second, that the trial judge committed reversible error in admitting into evidence the three depositions referred to above.

As to defendant's counterclaim, we must inquire whether the doctrine of collateral estoppel called for a dismissal; and whether, even if it did, the trial judge committed reversible error in ordering a separate non-jury trial of this issue in the face of an earlier ruling by another judge of the district court refusing to grant a motion by the plaintiff for a summary judgment on the counterclaim based on the same ground. It seems that, after Brite had recovered in his suit against Mrs. Graham, the plaintiff in the present action moved before Judge Kaufman for summary judgment on the defendant's counterclaim, asserting that the Brite action had conclusively established that Brite was not negligent and that the defendant was. Judge Kaufman, however, ruled that the Brite jury was given the alternative of basing its judgment on a theory of absolute liability for harboring a "dangerous animal" and that under New York law negligence was not an issue in that action. Since in Judge Kaufman's view Brite v. Graham had not determined either defendant's negligence or plaintiff's contributory negligence, it followed that he denied the plaintiff's motion for summary judgment. D.C.S.D. N.Y.1957, 158 F.Supp. 201; D.C.S.D. N.Y.1958, 168 F.Supp. 755.

When this case came on for trial before Judge Levet, plaintiff moved under Rule 42(b), 28 U.S.C.A., for a separate trial without a jury on the matters raised by defendant's counterclaim. Judge Levet agreed with Judge Kaufman that under the New York law recovery could be granted for harm caused by a domestic animal having dangerous propensities, without regard to negligence. See Karlow v. Fitzgerald, D.C.Cir., 1961, 288 F.2d 411. But Judge Levet felt that the Brite action had been presented, perhaps erroneously, in such a way that the jury necessarily determined that Brite was not, and the defendant was, negligent. So finding, he directed that the motion for dismissal of defendant's counterclaim should be granted, on doctrines of res judicata. This appears to be the New York law, which throughout the proceeding the parties have taken to be applicable to this question. Israel v. Wood Dolson Co., Inc., 1956, 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97. See Good Health Dairy Products Corp. of Rochester v. Emery, 1937, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401.

If we thought that Judge Levet was right in his ruling, we could not sensibly upset his decision on the ground that he should have accepted Judge Kaufman's order on the same matter in the motion Judge Kaufman had previously determined. The district court's "law of the case" was not our "law of the case"; and certainly it was not the "law of the case" of the Supreme Court. See White v. Higgins, 1 Cir., 1940, 116 F.2d 312, 317. It may be conceded to be unseemly for judges of co-ordinate jurisdictions to "review" one another's decisions, and ordinarily they do not do so. Yet in the past we have refused to reverse a case for the purpose of protecting the judicial sensibilities of the judge who first made a ruling on the matter. See Dictograph Products Co., Inc., v. Sonotone Corp., 2 Cir., 1956, 230 F.2d 131, 231 F.2d 867, which we assume, has substantially impaired the...