Winkler v. Pringle, 14365.

• Decision Date: 05 November 1963
• Docket Number: No. 14365.,14365.
• Parties: Edmund WINKLER, Appellant, v. Samuel W. PRINGLE and the Pennsylvania Railroad Company, a Corporation, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

324 F.2d 613 (1963)

Edmund WINKLER, Appellant, v. Samuel W. PRINGLE and the Pennsylvania Railroad Company, a Corporation, Appellees.

No. 14365.

United States Court of Appeals Third Circuit.

Argued October 17, 1963.

Decided November 5, 1963.

Edmund Winkler, pro se.

Bruce R. Martin, Pringle, Bredin & Martin, Pittsburgh, Pa., for appellees.

Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.

PER CURIAM.

Appellant, a naturalized citizen and resident of Pennsylvania, sued the defendant railroad in the Court of the Common Pleas, Allegheny County, Commonwealth of Pennsylvania, for alleged personal injuries and property damage as a result of a collision between his automobile which he was driving and a train of the railroad. The other defendant, an attorney, represented the railroad in that action. The trial judge, while he thought that the plaintiff's "* * * case is very, very slim * * *" felt that "* * * the jury should pass on it." The jury did so and found in favor of the defendant railroad. Plaintiff in that trial claimed leg injuries as a result of the accident. In the course of the trial it appeared from plaintiff's testimony that his legs had also been damaged from treatment received by him while a prisoner in a Russian prison camp during the last war. The closing arguments of counsel, if they were taken stenographically, have never been transcribed. It is claimed by appellant that in the summation by defendant Pringle he referred to appellant as a "foreigner". Appellant's attorney, summing up in that suit, did refer to appellant's experience in a Russian prison camp. On a defense mistrial motion as to this, the trial judge, denying the motion, instructed the jury:

"I will say this to you twelve men and women — I believe in you, in all of you, and some experience that some litigant may have had in Russia hasn\'t any part in this case at all; and neither is there any prejudice against the railroad nor does it have any place in this case at all. This case is to be decided by you twelve folks, unanimously, upon the facts and circumstances that existed on July 14, 1956 and that alone. The question that you have to decide, as I see it, and I may as well say it now, is was the Railroad Company negligent, was Mr. Winkler contributorily negligent, was he negligent. That is all you have to decide."

There was no objection to the alleged language of the defense at the time uttered or thereafter in plaintiff's post trial motion. No appeal was taken from the judgment entered in favor of the defendant.

Later appellant sued the railroad and its attorney in the state court for defamation arising out of the alleged above noted remark. The defense demurrer to that action was sustained, 110 Pittsburgh L.J. 323 (1962). The appeal to...