Keller v. Brooklyn Bus Corporation

• Decision Date: 27 May 1942
• Docket Number: No. 247.,247.
• Citation: 128 F.2d 510
• Parties: KELLER v. BROOKLYN BUS CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

128 F.2d 510 (1942)

KELLER v. BROOKLYN BUS CORPORATION.

No. 247.

Circuit Court of Appeals, Second Circuit.

May 27, 1942.

Louis Rothbard, of Brooklyn, N. Y. (Ralph Stout, of New York City, of counsel), for appellant.

William C. Chanler, Corporation Counsel, of New York City (Paxton Blair and James Hall Prothero, both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

SWAN, Circuit Judge.

Federal jurisdiction in this case rests on diversity of citizenship. The action sought damages for the death of Mrs. Hudson, who was the plaintiff's mother and of whose estate she was appointed administratrix. Mrs. Hudson was killed by being run over by the defendant's motor bus due, it is alleged, to the bus driver's negligence. The trial resulted in a verdict for the defendant. From the ensuing judgment the plaintiff has appealed, claiming errors in the charge given to the jury.

The accident occurred at about 11:40 P. M. on April 8, 1939. The bus had been proceeding easterly along Newkirk Avenue in Brooklyn; it stopped at the southwest corner of Newkirk and Flatbush Avenues to let off passengers, among whom was Mrs. Hudson. When the bus stopped the traffic light at the corner showed red against traffic on Newkirk Avenue. After it changed to green the bus started forward and made a wide swing to the right into Flatbush Avenue. In the meantime Mrs. Hudson had walked over to the westerly curb of Flatbush Avenue and when the traffic light was green she started to cross the street. She came into contact with the bus during its turn and after the accident her body was found about 15 feet south of the curb line of Newkirk Avenue, between the southbound rails of the trolley track on Flatbush Avenue, and 18 or 20 feet from the rear of the bus. The principal question of fact was whether she walked into the side of the moving bus or whether she was sufficiently in front of it so that the driver should have seen her. The only eyewitness to the accident testified that she was hurrying across the street, looking toward the south, and that he "saw the woman walk into the side of the bus." One of the passengers, however, gave testimony from which the jury could conceivably have found that just before the accident she was directly in front of the bus and should have been seen by the driver, who could have stopped the bus had he then seen her. Admittedly he did not see her. His testimony that she was never in front of the bus was corroborated by a passenger who occupied a seat directly behind the driver. Obviously the issue of how the accident happened and whether it was caused by the carelessness of the driver or the decedent's own negligence were matters for the jury to determine under proper instructions. It found for the defendant; on the evidence it is difficult to see how it could properly have reached any other verdict.

One of the appellant's complaints relates to the trial court's interpretation of Article 4, section 29, subdivision B of the Traffic Regulations of the Police Department. This requires that the driver of a vehicle "equipped with a mechanical or electrical signalling device" shall, "before turning to the right or left or slowing down," give timely warning by said signalling device. It was the contention of the appellant that this regulation required the bus driver to sound his horn before turning into Flatbush Avenue, but the court refused so to instruct the jury and explained to them that in his opinion the device to which the regulation referred was a mechanical arm or an electrically operated rear light signal with which trucks or other vehicles are often equipped. We agree with the trial court's interpretation; every automobile is equipped with a horn and the idea that the horn must be sounded whenever the vehicle slows down or turns a corner appears fantastic.

The only point really meriting discussion is the charge respecting burden of proof. Early in his instructions the judge correctly stated that the plaintiff had the burden of proving that her mother died because of the negligence of the defendant. He then proceeded to refer to the evidence and concluded this portion of the instructions with the statement that, in order to entitle the plaintiff to recover, the bus must not only be at fault but Mrs. Hudson must have been in the exercise of due care on her own account. This also was clearly correct, but the charge continued: "If the bus was at fault and she also was at fault, if she failed to exercise due care, then the plaintiff has failed to sustain her burden of proof. On the other hand, if the bus was at fault and Mrs. Hudson was not at fault under all the evidence in the case, then the plaintiff has sustained her burden of proof * * *".

It is urged that this erroneously instructed the jury that the plaintiff had the burden of proving the decedent's freedom from contributory negligence, which is contrary to Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, as well as contrary to the law of New York. Decedent Estate Law, Consol.Laws, c. 13, § 131; Code of Civil Procedure, ch. 9, § 841-b; Schrader v. New York, C. & St. L. R. Co., 254 N.Y. 148, 150, 172 N.E. 272. The quoted language does not in so many words say that the plaintiff has the burden of proving that Mrs. Hudson exercised due care, but we shall assume that the jury might have so understood it and that the judgment would have to be reversed had the matter ended here. But it did not. The last instruction given the jury was the following:

"Mr. Rothbard: Would your Honor permit me to make one oral request and that is that the defendant is under the duty of convincing the jury in this case — not plaintiff but the defendant — of convincing the jury that the deceased was guilty of contributory negligence.

"The court: I so charge."

This emphatic declaration that the defendant, not the plaintiff, must convince the jury of the deceased's contributory negligence, was the court's final word before the jury retired for deliberation. It definitely put upon the defendant the "duty" of "convincing" the jury as to negligence on the part of Mrs. Hudson. A majority of the court entertain no doubt that it was sufficient to remove any misconception which may have been engendered in the jury's mind by the preceding instructions concerning the burden of proof if she was at fault in failing to exercise due care.

In the federal courts technical errors which do not affect the substantial rights of the parties cannot be made the basis of reversal. 28 U.S.C.A. § 391. The test of the correctness of instructions is whether upon the whole charge the jury will gather the proper rules to be applied in arriving at decision. Taxi Service Co. v. Phillips, 1 Cir., 187 F. 734, 736-738; People v. Goldstein, 285 N.Y. 376, 383, 34 N.E.2d 362. Applying that test we are satisfied that the jury could have entertained no uncertainty that the burden of convincing them of Mrs. Hudson's negligence was on the defendant. This conclusion is in no respect inconsistent with this court's decision in Cummings v. Pennsylvania R. Co., 2 Cir., 45 F.2d 152, 153. There we held that an incorrect instruction constituted prejudicial error notwithstanding a subsequent correct charge because the later statement "would, in all probability, have been treated only as a restatement of what had gone before. Quite likely the jury was unaware of any change." The same criticism of the correction cannot be made in the present case. If the jury understood the first charge to place the burden of proof on the plaintiff, they could not have understood the later charge as a mere restatement of that. It expressly told them that "not plaintiff but the defendant" had the duty of convincing them of Mrs. Hudson's contributory negligence. Whether a subsequent correct charge is sufficient to cure a prior inadvertent error is necessarily a matter to be determined in the sound judgment of the appellate court. On such a question judges will not always agree. In the present case a majority of the court is convinced that the inadvertent error was cured and no prejudice to the plaintiff survived. Judgment affirmed.

FRANK, Circuit Judge (dissenting).

As I am far less experienced in deciding jury cases on appeal than my very wise colleagues, for whose views I entertain the sincerest respect, I have hesitated to disagree with them in this case. But this seems to me an instance of Homer nodding. I think the majority opinion unwisely overrules former decisions of this court, disregards rulings of other Circuit Courts of Appeals, and has the effect of improperly substituting — contrary to the Seventh Amendment as construed recently by the Supreme Court — a judicial for a jury verdict in a case in which, as my colleagues say, the evidence is conflicting.¹ My reasons for that conclusion are as follows:

The trial judge in his charge gave two conflicting versions of the burden-of-proof rule. The first was wrong, sufficiently so that, if not retracted, the majority opinion concedes it would compel reversal; the second was correct. If it were clear that the jury understood that the judge meant to substitute the second for the first, then the error would be harmless. But I perceive no basis for the belief that the jury understood that he had changed his mind, since he did not so state or imply. See what he did: Immediately after he uttered his earlier mistaken version, he ignored an exception thereto, made by appellant's counsel. Then he went on to give instructions on other matters. After a considerable interval — five folios later in the transcript — he was requested to and did state the correct rule. But he did not then say or imply: "This is in place of what I previously said on this subject, which was mistaken and which you must ignore." How, then, can we say that the jury knew that the second was a retraction?

For reasons noted below, we are...