Texas and Pacific Railway Company v. Buckles, 15585.

• Decision Date: 11 June 1956
• Docket Number: No. 15585.,15585.
• Citation: Texas and Pacific Railway Company v. Buckles, 232 F.2d 257 (5th Cir. 1956)
• Parties: TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Walter N. BUCKLES, Jr., and Silas R. Stanley, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

232 F.2d 257 (1956)

TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Walter N. BUCKLES, Jr., and Silas R. Stanley, Appellees.

No. 15585.

United States Court of Appeals Fifth Circuit.

April 6, 1956.

Rehearing Denied April 23, 1956.

Writ of Certiorari Denied June 11, 1956.

COPYRIGHT MATERIAL OMITTED

Charles Egan, Shreveport, La., for appellant.

Simon Herold, L. L. Lockard, Shreveport, La., for appellees.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

Writ of Certiorari Denied June 11, 1956. See 76 S.Ct. 1052.

RIVES, Circuit Judge.

Each appellee sued separately under the Federal Employers' Liability Act¹ for injury arising out of the same accident, and the actions were consolidated for trial. Both plaintiffs were members of a yard crew on a switch engine bound for the round house and temporarily stopped by a red light, at which time another switch engine attempted to couple onto the rear thereof. The plaintiffs' evidence, which the jury accepted, tended to prove that such coupling attempt was not one customarily made, that there was no prior warning of the impact, and that the speed of the second engine was excessive under the circumstances. The jury returned a verdict for Buckles in the amount of $26,400.00, and for Stanley in the amount of $32,800.00.

Appellant specifies some twenty claimed errors relating to various rulings of the district court upon the evidence, in refusing to declare a mistrial, in refusing special requested charges, in its general charge to the jury, and in denying the defendant's motion for a new trial.

Specifications 1 and 2 relate to references to the children of the plaintiffs.² Ordinarily, testimony as to a plaintiff's family is irrelevant.³ In this case, however, prior to the trial, the defendant had filed its request for special instructions, among others the following:

"(i) A person\'s estimated future loss of earnings or diminished earning power reduced to present value in the manner set forth above must be further reduced by a reasonable deduction for income taxes which would have been paid upon the sum if received as a result of actual work."

That request was honored by the court in its instructions as follows: "* * * any award made by you to the plaintiffs is not subject to income tax liability or other deductions which would have been made had the plaintiffs continued at their regular employment, and you should take this into consideration."⁴ The number of dependents, being implicit in the income tax problem, was thus made an issue by the defendant. The evidence of the plaintiffs' children was restricted by the court to the question of income tax, and on each occasion where children were referred to the jury was specifically instructed not to consider collateral issues nor the number of children for any other purpose. We should usually assume that the jury obeyed the instructions of the court. Pennsylvania Co. v. Roy, supra, 102 U. S. at page 459, 26 L.Ed. 141. In this case, that assumption is strengthened by the orderly manner in which the trial was conducted, and the absence of other evidences of appeals to prejudice or sympathy.

Specification 3 relates to the action of the trial court in permitting Dr. S. W. Boyce to testify as an expert witness, primarily for the plaintiff Buckles, over the objection of the defendant that the witness' name had not previously been furnished to counsel for the defendant. The court at first sustained that objection, stating:

"Our instructions to counsel, which were sent out a month or so in advance of the pre-trial conference last September, expressly required the names and addresses of all witnesses then known and expected to be used be given to the other side and also went on to say in the event new witnesses were learned of immediately, or promptly, they should notify the other side and to give them a short summary of the expected nature of their testimony.

"Under those circumstances, I see nothing to do but sustain the objection."

Counsel for the plaintiff Buckles then explained that he did not know that Dr. Boyce would testify until the preceding Friday when he examined Buckles. The court responded:

"I misunderstood. I had been under the impression you had known all along Dr. Boyce was going to be a witness and failed to notify Mr. Egan.

* * * * * *

"If you only had him examined last Friday, I think you are entitled to go ahead with him. I will withdraw the ruling and let him testify. I will caution you in the future that even if you do have a last minute examination like that be sure and tell the other side you are doing so immediately."

The district court, we think, was in better position than this Court to construe and apply its own rules of pre-trial practice, and we find no error nor abuse of discretion in this action of the court.

Specification 4 is that the trial court erred in excluding the hospital record of Buckles. Appellant's insistence is that, under 28 U.S.C.A. 1732(a), that record was admissible because made in the regular course of the hospital's business.⁵ In objecting, Buckles' counsel insisted that the real purpose of introducing the hospital record was to get before the jury the views of a doctor who had been asked to resign from the hospital staff, and who was not available for cross-examination. After examining the record, the court stated: "I will sustain it on the ground that the doctor is not here for cross-examination." The hospital record offered in evidence is not brought forward in the transcript of record on appeal, nor as an exhibit, and consequently we are not in position to say that the court erred in excluding the record, nor that any such error was "inconsistent with substantial justice." See Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A.

Specification 5 is that the trial court erred in refusing to give special charge 8 requested by defendant"⁶ In the case relied on by appellant, Owens v. Union Pacific Railway Co., footnote 6, supra, the Supreme Court spoke of what remained of the defense of assumption risk prior to the 1939 amendment to the Federal Employers' Liability Act abolishing that defense, now 45 U.S.C.A. § 54. The accident in that case occurred before the enactment of that amendment, but suit was brought afterwards. By that amendment "every vestige of the doctrine of assumption of risk was obliterated from the law". Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58, 63 S.Ct. 444, 446, 87 L.Ed. 610. Charge 8 was, therefore, properly refused.

Specification 6 is that the trial court erred in refusing to give special charge 9 requested by the defendant.⁷ Appellant relies particularly upon an expression in the concurring opinion of Mr. Justice Frankfurter in Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. at page 71, 63 S.Ct. at page 453.

"By specific provisions in the Federal Employers\' Liability Act, it has swept away `assumption of risk\' as a defense once negligence is established. But it has left undisturbed the other meaning of `assumption of risk\', namely, that an employee injured as a consequence of being exposed to a risk which the employer in the exercise of due care could not avoid is not entitled to recover, since the employer was not negligent."

If appellant's counsel had read the succeeding page of the concurring opinion, he would have found the answer to his contention:

"`Assumption of risk\' as a defense where there is negligence has been written out of the Act. But `assumption of risk\', in the sense that the employer is not liable for those risks which it could not avoid in the observance of its duty of care, has not been written out of the law. Because of its ambiguity the phrase `assumption of risk\' is a hazardous legal tool. As a means of instructing a jury, it is bound to create confusion. It should therefore be discarded." 318 U.S. at page 72, 63 S. Ct. at page 453.

Specification 7 is that the trial court erred in refusing to give special charge 14(c) requested by defendant.⁸ Appellant relies upon the case of Thompson v. Camp, 6 Cir., 163 F.2d 396, 403, while the appellees insist that the record in this case is devoid of any proof to sustain the charge and that it is not a matter of which we can take judicial knowledge; especially, in view of the fact that the work expectancy of the plaintiffs was materially less than their life expectancy. They call attention also that the court carefully charged that work and life expectancy tables were not binding.⁹ The parties had, in fact, stipulated as to the work expectancy and life expectancy of both men.¹⁰ The common knowledge of the jury which they were given permission to use (see footnote 9, supra) embraces the knowledge, that men in a hazardous occupation are sometimes killed. With deference to the opinion of the Sixth Circuit in Thompson v. Camp, supra, we think that the court did not err in this case in refusing special charge 14(c).

Specifications 8, 9 and 11 are that the trial court erred in refusing to give special charges 14(d), (f) and (h) requested by defendant.¹¹ The appellant states merely, "The requested charges are practically self-evident statements and each should have been given on the authority of Thompson v. Camp, supra." We agree with the appellees that, "* * the jury under our system is considered as having ordinary sense and experience, and is thought as capable of taking into account the self-evident facts of life as anybody else."

Specification 10 is that the trial court erred in refusing to give special charge 14(g)¹² requested by defendant. No authority is cited for this novel concept. The charge, we think, was properly refused for the reason assigned to specifications 8, 9 and 11. Its implication that it is more blessed to be unable to work than to work is, to say the least, debatable.

Specifications 12, 14, 16 and 18 do not have enough merit, in our opinion, to warrant discussion. Specification 13 is that the trial judge erred in that portion of the...