Perrone v. Pennsylvania R. Co.
Decision Date | 01 May 1944 |
Docket Number | No. 296.,296. |
Citation | 143 F.2d 168 |
Parties | PERRONE v. PENNSYLVANIA R. CO. |
Court | U.S. Court of Appeals — Second Circuit |
Joseph A. McLaughlin, of New York City (Vine H. Smith and Harry S. Austin, both of New York City, of counsel), for plaintiff-appellee.
Alfred W. Andrews, of New York City (Samuel E. Swiggett and William L. Shumate, both of New York City, of counsel), for defendant-appellant.
Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.
1. This case was here on a previous appeal where we reversed a judgment, entered at the close of the testimony, dismissing the complaint on the erroneous ground that the evidence was insufficient to go to the jury. Perrone v. Pennsylvania R. Co., 2 Cir., 136 F.2d 941. So similar are the records on the two appeals that, with one exception noted below, we need not discuss the evidence or the questions raised by defendant here which are virtually identical with those considered in our previous opinion. To be sure, that opinion, constituting the "law of the case," is not binding upon us, and we would be free to disregard it if, upon reconsideration, we felt that our previous conclusions were substantially wrong.1 But, having read the briefs and the record here, we see no reason not to abide by our prior decision.
2. The following question, however, was not before us when we rendered that decision. On the first day of the trial, Brennan, a witness called by the plaintiff, testified that he had been working with plaintiff before and at the time of the accident. On direct examination, the following questions and answers were given:
On the second day of the trial, on cross-examination of Brennan, the following questions, answers and colloquies occurred:
The exhibit was not then offered in evidence and plaintiff's counsel did not then see it. On the third day of the trial, when Brennan was no longer present and just before the last witness was called, defendant offered it. It consisted of a portion of a statement signed by the witness a week after plaintiff filed his complaint, a statement apparently obtained at the instance of defendant. It contained the following sentences which defendant asserts would have impeached Brennan's veracity:
The trial judge sustained an objection to the reception of this exhibit. No harm would have been done by its admission. But we think that the judge's ruling was...
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