Korte v. New York, NH & HR Co.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: CHASE, CLARK, and FRANK, Circuit
• Citation: Korte v. New York, NH & HR Co., 191 F.2d 86 (2nd Cir. 1951)
• Decision Date: 24 July 1951
• Docket Number: Docket 21995.,No. 258,258
• Parties: KORTE v. NEW YORK, N. H. & H. R. CO.

191 F.2d 86 (1951)

KORTE v. NEW YORK, N. H. & H. R. CO.

No. 258, Docket 21995.

United States Court of Appeals Second Circuit.

Argued June 5, 1951.

Decided July 24, 1951.

Writ of Certiorari Denied November 5, 1951.

Robert M. Peet, of New York City (Edward R. Brumley, of New York City, on the brief), for defendant-appellant.

Randolph J. Seifert, of New York City (Coughlan, Russell & Seifert and John T. Norton, all of New York City, and William A. Blank, of Brooklyn, N. Y., on the brief), for plaintiff-appellee.

Before CHASE, CLARK, and FRANK, Circuit Judges.

Writ of Certiorari Denied November 5, 1951. See 72 S.Ct. 108.

CLARK, Circuit Judge.

Defendant New Haven Railroad appeals from a district court judgment awarding plaintiff George P. Korte $25,045.52 after a jury trial in an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for personal injuries sustained in the course of his employment as a ticket collector. The errors relied on are (1) lack of sufficient evidence of negligence to justify submission of the case to the jury, and (2) admission in evidence of certain reports in the form of letters of doctors not called to testify in person. We think the judgment must be affirmed.

Plaintiff was injured on December 20, 1946, when he wrenched his back trying to open one of the familiar flat steel trap doors or "traps" which cover the steps on railroad passenger cars and which, when opened, make it possible for passengers to ascend or descend the steps to the vestibule of the car. He was on train No. 369, going from New Haven to Grand Central Station, New York, and was injured when he tried to open the trap, so that passengers could get off at the 125th Street Station in New York.

It appears that traps operating normally are opened by (1) stepping on a release mechanism, which frees the trap so that a spring forces it up from three to sixteen inches, and then (2) pulling it up the rest of the way by hand. In this case according to plaintiff's testimony either the release mechanism, which was "rusty," did not work or the spring was broken; hence the trap did not rise. From the evidence presented, the jury might fairly have found that plaintiff tried to open the trap by stepping on the release, that it did not open, that he then leaned over and, still standing on the release, tried to wrench it upward manually, thereby sustaining the injuries of which he complains. This disposes of defendant's claim that "Plaintiff failed to prove that any defect existed in the trap door or the mechanism by which it was operated that could have prevented the door from rising." For the jury believed the plaintiff, and no other proof was necessary.

Defendant also asserts that the accident was not reasonably foreseeable. Thus it says, "Plaintiff failed to prove that defendant knew or should have known that the trap door or its operating mechanism was defective." These arguments are likewise unavailing after the jury's verdict. The jury was entitled to believe the plaintiff's case as he presented it; in fact, however, it received some measure of support from defendant's evidence. Thus one Hogan, Car Maintenance Assistant to one of defendant's vice-presidents, said that with respect to trains on this run it was the practice that "the interior of the cars is inspected by two inspectors at Grand Central Station. They go over the interior of the car like seats, door locks, doors and so forth, and trap doors, trap door locks: They inspect those to see whether or not they are in good condition." This is normally done, he said further, as soon as possible after the passengers leave the train: "if the men are available at the time they make the inspection right away." Here it was shown only that trap door repairs were made on plaintiff's train after he was injured and had filled out the customary accident report form giving as the reason for the accident: "Trying to open trap which was stuck." So we may not contradict what is implicit in the jury's verdict: that an inspection was not made, or, if made, was faulty, or, if not faulty, was not followed by timely action. It is certainly foreseeable that a man may injure his back or a muscle trying to raise a trap door which, by Mr. Hogan's testimony, weighs "80 pounds without fixtures; with fixtures it runs about 95." Moreover, Mr. Hogan testified that he had had trouble with the trap doors on the New Haven's cars, and in the past had "shopped" cars to have defective traps repaired. The testimony was thus adequate to support foreseeability.

It is apparent from the nature of the accident and the amount of damages awarded that the jury took a generous view of the plaintiff's case and evidence. But the damages, within limits not here exceeded, are not reviewable; and we think the jury was entitled to find the railroad negligent. To recover under the Act plaintiff must of course show negligence, Moore v. Chesapeake & Ohio Ry. Co., 340 U.S. 573, 575, 71 S.Ct. 428; Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 88 L.Ed. 520, which must be the proximate cause of the accident. Reynolds v. Atlantic Coast Line R. Co., 336 U.S. 207, 69 S.Ct. 507, 93 L.Ed. 618. Where the danger is foreseeable, however, the railroad's liability is anything but restricted. Cf. Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73. And the jury may credit or discredit all or part of whatever testimony it hears in arriving at its verdict. Moore v. Chesapeake & Ohio Ry. Co., supra, 340 U.S. at page 576, 71 S.Ct. 428. Thus here it may have given more weight to Mr. Hogan's testimony, that he had had trouble with trap doors on the New Haven in the past, than would a court were it the trier of fact. But we have been cautioned that this is not our province. Thus see Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916, which is again quoted in Myers v. Reading Co., 331 U.S. 477, 485, 486, 67 S.Ct. 1334, 1339, 91 L.Ed. 1615: "Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable." See also Wilkerson v. McCarthy, 336 U.S. 53, 61-64, 69 S.Ct. 413, 93 L.Ed. 497; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 68, 63 S.Ct. 444, 87 L.Ed. 610. It is in the light of such admonitions and of the law as thus announced that we have felt it our duty to uphold jury verdicts under comparable conditions. Morris v. Pennsylvania R. Co., 2 Cir., 187 F.2d 837; Mostyn v. Delaware L. & W. R. Co., 2 Cir., 160 F.2d 15, certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355.

The verdict of the jury must therefore stand unless there was error in the reception of evidence. The question here presented as to the admission of the doctors' reports is an interesting and important one in the application of the Federal Business Records Act, 28 U.S.C.A. § 1732, also the law in Connecticut, Conn.Gen.Stat. 1949, § 7903, and New York, N. Y. Civil Practice Act § 374-a.¹ The background of the offer came in the plaintiff's testimony as follows: The same day the accident occurred he went back to New Haven to the Railroad emergency hospital, where he was "taped up for the night" by the nurse, and told to return the next day to see Dr. Jenkins. Dr. Jenkins, who saw him continuously for two and a half or three months, sent him to a surgical factory to have a corset, or brace, made, and gave him heat treatments. But since he was getting worse, Dr. Jenkins had him X-rayed and then sent him to Dr. O'Connor, an orthopedic specialist. Dr. O'Connor examined him on January 20 and again on February 10, 1947, and sent him to Dr. Brody, a neurosurgeon, who examined him on February 17. Some two weeks later he was at New Haven Hospital under the care and examination of both doctors and of others, and thereafter had further care from them and others. It is the admission of two letters from Dr. O'Connor to "New York, New Haven and Hartford Railroad Co., Claim Department, New Haven, Connecticut," and of one letter of Dr. Brody to Dr. O'Connor marked "cc. Dr. Ralph Jenkins, New Haven Railroad," which presents the issue.

Photostatic copies of these letters were "furnished" plaintiff by defendant. Each is on the office letterhead of the respective doctor, giving his name, title, and New Haven street address. Each bears the rubber stamp showing receipt at the "Office of District Claim Agent" of defendant and the date. The first from Dr. O'Connor, dated January 21, 1947, and received the following day, states that he examined "the above named conductor at my office on January 20, 1947," goes on to give a "history" on patient's report, then an "examination" in detail, and concludes: "This man does not present a typical picture of any condition; however, it is my opinion that this is an atypical intervertebral disc lesion. I hesitate to suggest an operation in view of the fact that the findings are not typical but I believe this man is going to continue to have trouble. Both from the viewpoint of expense and disability the operation would be the best thing that could be done at the present time." The second letter, also from Dr. O'Connor, written on February 11 and received by defendant on February 12, is as follows:

"I have re-examined Mr. Korte at my office on February 10th, at which time I find that he has all the complaints which he had at his previous examination and all the objective findings are essentially the same.

"It would appear that in view of the continuation of the findings that a positive diagnosis of an intervertebral disc lesion is justified and an...