Lewis v. Baker

• Decision Date: 20 November 1975
• Docket Number: Docket 75-7134.,No. 195,195
• Citation: 526 F.2d 470
• Parties: Clifford J. LEWIS, Jr., Plaintiff-Appellant, v. George P. BAKER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

526 F.2d 470

Clifford J. LEWIS, Jr., Plaintiff-Appellant, v. George P. BAKER et al., Defendants-Appellees.

No. 195, Docket 75-7134.

United States Court of Appeals, Second Circuit.

Argued October 7, 1975.

Decided November 20, 1975.

Albert A. Juron, New York City (Juron and Minzner, P. C., New York City), for plaintiff-appellant.

Robert M. Peet, New York City, for defendants-appellees.

Before WATERMAN, OAKES and MESKILL, Circuit Judges.

WATERMAN, Circuit Judge:

Plaintiff, Clifford J. Lewis, Jr., brought this action in the United States District Court for the Southern District of New York pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. and the Federal Safety Appliance Act, 45 U.S.C. § 1 et seq. alleging he suffered a disabling injury while employed by the Penn Central Railroad. Judgment was entered in favor of defendants after a jury trial. Plaintiff appeals and seeks a new trial on the following grounds: (1) accident reports were improperly admitted into evidence; (2) the trial court erred in charging the jury that they might infer proper functioning of the brake from evidence of the brake's condition before and after the accident; and (3) the trial court erred in charging that the jury might consider plaintiff's response to a question in his employment application on the issue of his credibility. Finding no merit to the above contentions, we affirm.

On the date of his injury, October 26, 1969, plaintiff was employed as a freight brakeman or car dropper in the Penn Central railroad freight yard in Morrisville, Pennsylvania. His work called for him to move freight cars in a railroad yard by riding them down a slope while applying the brake manually. Plaintiff testified that immediately before the incident in question, he climbed onto the lead car of two box-cars, stationed himself on the rear brake platform of that car, applied the brake to test it, and found that the brake held. Upon his signal, another employee of the railroad released the two box-cars from the rest of the train at the top of a hill, at which time they started to roll down the slope. Plaintiff then started to turn the vertical brake wheel so that the car would slow down as it descended the slope and would ease into the train with which it was to couple on a track beyond the bottom of the slope. He claims that the brake did not hold, that the car continued to gather momentum, and that he then decided to leap off the car to avoid injury. As a result of the fall, he claims to have sustained substantial knee injury and the aggravation of a preexisting psychiatric condition which has precluded his returning to his job. There were no witnesses to the accident other than the plaintiff.

At the trial, defendants sought to rebut plaintiff's allegations of a faulty brake with evidence that the brake had functioned properly immediately prior to the accident when the plaintiff tested it, and immediately after the accident when it was checked in connection with the preparation of an accident report. It was the defendants' contention that plaintiff improperly set, or forgot to set, a necessary brake handle, panicked, and then leapt from the car.

In support of their interpretation of the events, defendants offered into evidence a "personal injury report" and an "inspection report." Frank Talbott, a trainmaster, testified that the personal injury report was signed by him and prepared under his supervision. The information had been provided to him by William F. Campbell, the night trainmaster. Talbott confirmed the authenticity of the record and testified that he was required to make out such reports of injuries as part of the regular course of business. At the trial David W. Halderman, an assistant general foreman for the defendants, identified the inspection report which had been prepared by Campbell and by Alfred Zuchero, a gang foreman. This report was based upon an inspection of the car Campbell and Zuchero had conducted less than four hours after the accident. Halderman testified that Zuchero was dead and that Campbell was employed by a railroad in Virginia. The latter was thus beyond the reach of subpoena. Halderman also confirmed that following every accident involving injury to an employee his office was required to complete inspection reports, and that such reports were regularly kept in the course of business. Over objection, the court admitted both reports into evidence.

Determination of the admissibility of these reports under the Federal Business Records Act¹ involves two problems: whether the reports are business records within that statute, and whether the fact that the accident report was prepared by an employee who had neither first-hand knowledge of the accident nor had inspected the purportedly defective car and brake affects admissibility into evidence.

As a preliminary matter, there is little doubt that these reports are each a "writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event..." 28 U.S.C. § 1732 (1966). Furthermore, it is beyond dispute that these reports were made pursuant to a regular procedure at the railroad yard, and that Talbott, Campbell and Zuchero made the reports within a reasonable time after the accident. Appellant argues, however, that notwithstanding the presence of those factors which would indicate a full compliance with 28 U.S.C. § 1732, the Supreme Court's decision in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), precludes their admission into evidence. There the Court upheld the inadmissibility of an accident report offered by the defendant railroad that had been prepared by one of its locomotive engineers. The Court stated that since the report was not prepared "for the systematic conduct of the business as a business," it was not "made `in the regular course' of the business" of the railroad. 318 U.S. at 113, 63 S.Ct. at 481. We find significant differences between the report and the circumstances of its making in that case and the facts here, and we uphold the district court's admission of the records below.

In Palmer v. Hoffman, the engineer preparing the report had been personally involved in the accident, and, as Circuit Judge Frank stated in his opinion for the Court of Appeals, the engineer knew "at the time of making it that he was very likely, in a probable law suit relating to that accident, to be charged with wrongdoing as a participant in the accident, so that he was almost certain, when making the memorandum or report, to be sharply affected by a desire to exculpate himself and to relieve himself or his employer of liability." 129 F.2d 976, 991 (2d Cir. 1942) (italics omitted). Here there could have been no similar motivation on the part of Talbott, Campbell or Zuchero, for not one of them was involved in the accident, or could have possibly been the target of a lawsuit by Lewis. In United States v. New York Foreign Trade Zone Operators, 304 F.2d 792 (2d Cir. 1962), we sustained the admissibility of a similar report by the co-employee of the injured party which had been prepared as part of the regular business of the defendant pier-owner and operator. As we explained there, the mere fact that a record might ultimately be of some value in the event of litigation does not per se mandate its exclusion. In Palmer v. Hoffman, "obviously the Supreme Court was concerned about a likely untrustworthiness of materials prepared specifically by a prospective litigant for courtroom use." 304 F.2d at 797. The fact that a report embodies an employee's version of the accident, Taylor v. Baltimore & Ohio R. R. Co., 344 F.2d 281 (2d Cir. 1965), or happens to work in favor of the entrant's employer, Naylor v. Isthmian S. S. Co., 187 F.2d 538 (2d Cir. 1951) does not, without more, indicate untrustworthiness. See Pekelis v. Transcontinental & W. Air, Inc., 187 F.2d 122 (2d Cir.), cert. denied, 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374 (1951). In the absence of a motive to fabricate, a motive so clearly spelled out in Palmer v. Hoffman, the holding in that case is not controlling to emasculate the Business Records Act. Therefore the trial court must look to those earmarks of reliability which otherwise establish the trustworthiness of the record. See Gaussen v. United Fruit Co., 412 F.2d 72, 74 (2d Cir. 1969).

Here the ICC requires the employer to prepare and file monthly reports of all accidents involving railroad employees. Assistant general foreman Halderman testified that following every injury he was required to inspect the equipment involved and to report the results of the inspection on a regular printed form.² As we stated in Taylor v. Baltimore & Ohio R.R. Co., supra, "it would ill become a court to say that the regular making of reports required by law is not in the regular course of business." 344 F.2d at 285. In addition to their use by the railroad in making reports to the ICC, the reports here were undoubtedly of utility to the employer in ascertaining whether the equipment involved was defective so that future accidents might be prevented. These factors, we think, are sufficient indicia of trustworthiness to establish the admissibility of the reports into evidence under the Federal Business Records Act.³

The fact that the trainmaster Talbott completed the personal injury report based on information supplied to him by a third person, Campbell, does not render the report inadmissible. 28 U.S.C. § 1732 explicitly states that "lack of personal knowledge by the entrant or maker" shall not affect the admissibility of the record, and may only affect its weight.⁴ See also United States v. Re, 336 F.2d 306, 313-14 (2d Cir.), cert. denied, 379 U.S. 904, 85 S.Ct. 188, 13 L.Ed.2d 177 (1964). Nor does the fact that the entrant does not testify preclude the admission of the record. All that is required is that someone who is sufficiently familiar with...