Masterson v. Pennsylvania R. Co.

• Decision Date: 14 June 1950
• Docket Number: No. 9938.,9938.
• Citation: 182 F.2d 793
• Parties: MASTERSON v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

182 F.2d 793 (1950)

MASTERSON v. PENNSYLVANIA R. CO.

No. 9938.

United States Court of Appeals Third Circuit.

Argued November 11, 1949.

Reargued May 1, 1950.

Decided June 14, 1950.

Philip Price, Philadelphia, Pa. (Owen B. Rhoads, Robert M. Landis, Barnes, Dechert, Price, Myers & Clark, all of Philadelphia, Pa., on the brief), for appellant.

Joseph S. Lord, 3d, Philadelphia, Pa. (Richter, Lord & Farage, Philadelphia, Pa., on the brief), for appellee.

Before MARIS, GOODRICH and HASTIE, Circuit Judges.

MARIS, Circuit Judge.

The plaintiff, Christ H. Masterson, sued his employer, the Pennsylvania Railroad Company, in the United States District Court for the Eastern District of Pennsylvania, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries which he sustained when an automobile which he was driving swerved from the highway and crashed into a guard rail near Flinton, Pennsylvania. At the trial the railroad requested a directed verdict in its favor which the trial judge refused. The jury rendered a verdict in favor of the plaintiff upon which judgment was entered. Motions for judgment n. o. v. and for a new trial were denied and the railroad brought the case here on appeal.

The railroad's first contention is that there was no evidence upon which the jury could predicate a finding of negligence on its part and that, therefore, its motion for a directed verdict should have been granted. In passing upon this contention we must, of course, consider the evidence in the light most favorable to the plaintiff. So viewed the evidence tended to establish the following facts:

The plaintiff was one of a number of coal inspectors employed by the railroad. His duties required him to travel over the entire eastern soft coal region of the United States inspecting mines that supplied coal to the railroad. It was the regular practice of the coal inspectors to use at their own discretion whatever transportation to the mines was available, such as trains, taxicabs or rented automobiles, and to pay the cost of such transportation for which they were later reimbursed by the company.

The plaintiff followed this procedure everywhere but in Altoona, Pennsylvania. There for a period of time before the war he had used his own automobile. Thereafter he was issued a special wartime government permit authorizing him to use taxicabs, and everywhere but in Altoona he continued to use that permit to hire taxicabs. Some time before the date of the accident, however, the plaintiff stopped using taxicabs in Altoona and began the practice of renting automobiles from the Altoona Drive Yourself Company, an automobile rental agency operated by F. B. Close. The plaintiff testified that he was told to do so by his foreman, W. L. Lloyd. The Drive Yourself Company was not owned by or affiliated with the railroad but there was a standing arrangement or contract between the two under which the Drive Yourself Company was to furnish automobiles from time to time for use by employees of the defendant.

On the morning of June 25, 1945 the plaintiff obtained a green Chevrolet automobile from the Drive Yourself Company to drive from Altoona to Houtzdale, Pennsylvania, to make an inspection of a mine at that place. He had previously driven this same automobile and had noticed its tendency to swerve to the right, which condition he had reported to both Close and Lloyd, telling the latter that the car was dangerous to drive. Lloyd had stated, however, that it was the only car the Drive Yourself Company had available and that plaintiff would have to use it. The plaintiff accordingly took the car, drove to Houtzdale in it and made his inspection. On returning from Houtzdale to Altoona, as he entered a curve in the highway at a speed of about thirty-five or forty miles per hour, the automobile started to swerve to the right and in spite of the plaintiff's efforts it pulled itself out of his control, went off the road to the right, and crashed into the guard rail. It was for a fracture of the sixth cervical vertebra alleged to have been suffered in this accident that the plaintiff brought the present suit.

The railroad asserts that the facts as we have recited them are not sufficient to establish negligence on its part. We do not agree. This is not a case in which the employee was wholly free to choose his own means of proceeding to and from the place at which he was to perform his duties. On the contrary he had been directed by his employer to use for that purpose a particular means, namely, an automobile to be obtained from the Drive Yourself Company, with which concern the employer had a standing arrangement to provide just such facilities for the use of its employees. In the present case, however, we do not have to decide whether even under these circumstances the employer would have been liable to its employee for injuries resulting from a defective automobile thus obtained in the absence of knowledge on its part of the defect. For the evidence of the plaintiff indicates that the railroad through its foreman, Lloyd, had actual notice of the defective condition of the automobile in question and nonetheless directed the plaintiff to use it. We think that there can be no doubt that the jury was justified from this evidence in finding that the railroad was guilty of negligence which was the proximate cause of the accident in which the plaintiff suffered the injuries he alleged. It follows that the trial judge did not err in refusing to direct a verdict for the defendant.

We turn then to certain alleged trial errors which the railroad contends call for a new trial. The first of these involves the admission into evidence of copies of two letters to the railroad's chief medical examiner, one purporting to be signed by Dr. A. E. Colcher and the other by Dr. R. C. Kell. The copies had been annexed by the railroad to its answer to an interrogatory filed by the plaintiff. Each letter indicated that the plaintiff had been examined by the writer and stated certain facts with respect to his history and condition together with the writer's findings or conclusions. Over the objection of the railroad the copies of the letters were admitted into evidence as memoranda made in the regular course of business. Their admission is sought to be justified under the Federal Business Records Act or the Uniform Business Records as Evidence Act, which is in force in Pennsylvania. If admissible under either act, their admission was not error. Federal Civil Procedure Rule 43(a), 28 U.S.C.A.

The Federal Business Records Act, 28 U.S.C.A. § 1732, provides that: "In any court of the United States and in any court established by Act of Congress, any 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, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter."

The provisions of the Uniform Business Records as Evidence Act, 28 P.S.Pa. § 91b, are that: "A record of an act, condition or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."

We think that these...