Pennsylvania R. Co. v. Hammond

• Decision Date: 01 June 1925
• Docket Number: No. 340.,340.
• Citation: 7 F.2d 1010
• Parties: PENNSYLVANIA R. CO. v. HAMMOND.
• Court: U.S. Court of Appeals — Second Circuit

7 F.2d 1010 (1925)

PENNSYLVANIA R. CO. v. HAMMOND.

No. 340.

Circuit Court of Appeals, Second Circuit.

June 1, 1925.

Alexander S. Diven, of Elmira, N. Y., for plaintiff in error.

Mortimer L. Sullivan, of Elmira, N. Y., for defendant in error.

Before ROGERS, HOUGH, and HAND, Circuit Judges.

ROGERS, Circuit Judge.

This action is brought under the federal Employers' Liability Act (35 Stat. 65 Comp. St. §§ 8657-8665). The plaintiff in his complaint asked for judgment against defendant in the sum of $150,000, for injuries he received in the performance of his duties as a fireman on one of defendant's locomotives — the accident occurring near Penn Yan in the state of New York. And it is stipulated between the parties that the plaintiff and the defendant were each engaged in interstate commerce at the time the plaintiff received the injuries for which the suit is brought.

The jury returned a verdict in the plaintiff's favor for $47,000, and judgment has been entered against defendant in that amount, together with $1,755.61, being plaintiff's costs and disbursements; the whole aggregating $48,755.61.

The complaint alleged that on June 11, 1923, the defendant so carelessly and recklessly placed and located cars and obstructions on its tracks that the plaintiff was brought into violent collision with the said car, cars, or obstructions, and as a result thereof received grievous and permanent bodily injuries. It further alleged that the said injuries were due solely to the negligence and carelessness of the defendant, while the plaintiff was in the exercise of due care and diligence.

The defendant in its answer set up as a first defense to the cause of action that the injuries alleged in the complaint were not due to any negligence on the part of the defendant.

It set up as a second defense that the injuries sustained were caused by reason of the plaintiff's own negligence, or that such negligence contributed thereto.

It set up as a third defense that the plaintiff assumed the risks incident to his employment as a fireman on defendant's locomotive; the employment being an obviously dangerous one, and the risks being obvious and well known to him at the time he entered upon his employment.

It set up as a fourth defense that, before the commencement of the action, and for a valuable consideration, the plaintiff, by an instrument in writing, and signed by him, released the defendant from the alleged claim set forth in the complaint.

Before considering the real merits of this case, we may refer to the fact that the defendant strenuously insists that a serious error was committed in the impaneling of the jury. It seems that, after the plaintiff had put in all his evidence and two of defendant's witnesses had been examined, one of the jurors was taken ill and a mistrial was declared. Counsel then asked the court to allow the case to go over the term on the ground that the entire panel of jurors was disqualified from sitting in the case. The court, however, denied the motion, and stated that he did not think that the facts relied upon constituted disqualification.

At the second trial, the defendant challenged for cause three jurors who sat in the previous trial. Each juror, being interrogated, stated he could disregard the evidence introduced in the uncompleted case, and that he had formed no impression from the testimony then introduced.

The challenge for cause was denied, and an exception was taken. After the defendant had exhausted all its peremptory challenges, there remained four jurors in the box who sat in the first trial. These were challenged for cause, the challenge was overruled, and exception was taken.

It has been held in some cases that a juror who has once sat in a case is disqualified from again hearing the case. In Weeks v. Medler, 20 Kan. 57, 62, Judge Brewer (afterwards an Associate Justice of the Supreme Court of the United States), writing for the court, and holding such a juror incompetent, said:

"The idea is that a juror, having once served, will have opinions more or less strongly settled from the testimony he has heard, and of course he will have such opinions whether he has heard much or little testimony. Indeed, it would seem as though there were greater danger of injustice from a juror who has heretofore heard only one side of the case than from one who has heard both. * * * But whether much or little, they heard all the plaintiff's testimony; and, if that made out a prima facie case, and they heard nothing more, their convictions in favor of the plaintiff would naturally become more settled and fixed during the interval between the two trials, and they would scarcely enter the second inquiry entirely impartial as between the parties."

But in the Kansas case the statutes of the state made it a good cause of challenge that one "has formerly been a juror in the same cause." The incompetency of such a juror is held in Famulener v. Anderson, 15 Ohio St. 475. Some of the cases hold that a juror who sat on the first trial is disqualified to sit on the second trial if in the first trial the jury disagreed. Dothard v. Denson, 72 Ala. 541; Hester v. Chambers, 84 Mich. 562, 48 N. W. 152. And in a number of cases the courts have held that a juror is not incompetent merely because he heard the evidence at a former trial, if he had formed no opinion as to the merits. Smith v. State, 207 Ala. 428, 93 So. 397; Stover v. State, 204 Ala. 311, 85 So. 393; Leas v. Patterson, 38 Ind. 465; State v. Prins, 117 Iowa, 505, 91 N. W. 758; State v. Sechrist, 226 Mo. 574, 126 S. W. 400; Wade v. State, 12 Tex. App. 358; and see Commonwealth v. Roddy, 184 Pa. 274, 39 A. 211; 35 C. J. 347.

While we are inclined to think that, under the circumstances, no error was committed in impaneling the jury, it is not necessary to decide that question at this time, and we dispose of this case on other grounds.

We come now to what we regard as the real merits of the case. The plaintiff testified that at the time he was injured he was stationed on the left side of his locomotive, in the gangway between the engine and the tender; that he was passing the Penn Yan station at a speed of from 20 to 25 miles an hour; that holding onto a handle on the engine he thrust his head some 8 or 10 inches beyond the locomotive, looking back to see whether any orders were given, and that it was the custom and practice of firemen so to look back for orders; and that, while he was so engaged in looking, he was struck on the side of the head by some object which he described as a steel gondola car. He was struck almost as soon as he put his head out of the engine; being hit on the back side of his head and thrown out upon the ground. He was put into an ambulance and taken to a hospital in Penn Yan, where he remained for a month, and then was removed from there to a hospital in Rochester. The testimony disclosed that at the time of the trial he had total paralysis of his right arm which the surgeons thought would be permanent. He had a broken neck "definitely at the sixth and seventh, and less definitely at the fifth cervical vertebra." The right shoulder bone, which was fractured at the time of the injury, seemed at the trial to be entirely cured. At the time of the accident, his right hand was broken, and at the time of the trial the hand was still in a splint, which was worn at that time merely as a support.

The plaintiff testified that the car by which he was struck was standing on a crossover which connected the main track, on which his locomotive was running, with a siding track running parallel thereto; and he claimed that the car on the crossover was within 8 or 10 inches of the side of his locomotive. But his testimony as to the location of the car was contrary to that of the five members of the train crew, who testified that it was on a siding and between three and four car lengths from it. There was other evidence to the same effect. The testimony of some eight witnesses located the car on the siding. If their testimony was believed, then it was also necessary to believe that the clearance between the siding and the plaintiff's locomotive was at least 26½ inches. And the engineer on the locomotive had testified that, if the steel gondola car had been standing on the crossover, he would have seen it, as he was looking ahead. He testified he saw no car on the crossover. The court in his charge, after directing attention to the fact that there was a conflict in the testimony as to the position of the car, whether it was on the crossover or on the siding, said:

"I instruct you that it makes no difference whether this car was on the crossover or projected over the switch, or whether it was on the straight track of the siding, providing you find the location was in dangerous proximity to the moving train. That is a question that is submitted to you as one of fact. Was this car in a dangerous position? Was it so close to the moving train so that, when this plaintiff leaned out a distance of 8 to 12 inches in the performance of his duties, he was struck?"

The defendant's counsel excepted to this, and asked the court to charge as follows:

"I ask your honor to charge that, unless the jury find the accident happened as the plaintiff says — by his head coming in contact with the car while standing on the crossover — their verdict must be for the defendant.

"The Court: Declined.

"Mr. Diven: Exception. That if the car was not on the crossover, but was on the siding, their verdict must be for the defendant.

"The Court: Declined.

"Mr. Diven: Exception. I also ask your honor to charge the jury that, if the car was on the siding, the plaintiff cannot recover under his complaint.

"The Court: Declined.

"Mr. Diven: Exception. I except to your honor's submitting any question of clearance between the side track and the main track to the jury, as no negligence can be predicated thereon; and I ask your honor to charge the jury that no...