evidence of inconsistencies regarding them is inadmissible, as well.
In addition, though not decisive of the question, it should be noted that the induction report and the information contained in it are confidential. 38 U.S.C. § 456, 38 U.S.C.A. § 456. Defendant did not subpoena the Veterans Administration file it now seeks to make use of, nor did it ask the court to do so. Furthermore, while plaintiff called for the medical records from the file, for the benefit of veteran Benjamin Hawkins, as it was entitled to do, it vigorously objected to use of the other papers in the confidential file for the purposes to which defendant put them.
Besides the objections detailed above, defendant contends that the court erred in its charge and that plaintiff failed to establish any right to maintain this action.
As to the first point, defendant claims that error was twofold: that the court in its charge incorrectly stated the facts on the availability of a safe footway or clearance for deceased, and that it should not have refused defendant's proferred charge which would have instructed the jury to take into consideration, inter alia, 'that the defendant furnished (the deceased) a reasonably safe passageway from one point to the other.' Whatever error there may have been in this course, the court feels that it was not prejudicial on the question of negligence was adequate, and there was ample evidence in the record justifying a jury finding that the railroad failed to supply a safe place to work, and that its negligence, in whole or in part, caused the death of Edna Hawkins. Under these circumstances, defendant's motion for a new trial on this point is denied. Cf. Lavender v. Kurn, 327 U.S. 645, 66 S. Ct. 740, 90 L. Ed. 916.
Defendant's last contention, however, is correct. Under the terms of the Federal Employers' Liability Act, where an employee has been killed, the cause of action vests in his personal representative, even though the representative then sues for the benefit of surviving relatives. Defendant argues that the plaintiff has nowhere proved his appointment as administrator, and that, therefore, he has no right to maintain the action. On this basis, defendant moved for a directed verdict and now moves for judgment n.o.v. or, alternatively, for a new trial. Plaintiff's supplemental memorandum in opposition to the motion points out that at the time his complaint was filed, only a technicality marred his rights as administrator; i.e., one of the necessary sureties had not yet signed the administrator's bond, and that this has since been done. Plaintiff argues that the now valid letters of administration should relate back and he seeks to amend his pleadings accordingly. This fails to meet defendant's contention that plaintiff has not proved his right to maintain the action as administrator, and, while it is conceivable that the court could take judicial notice of that appointment, Rule 59, Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, offers a fair and perhaps more orthodox solution of the problem. Limited new trials on a large variety of specific issues have been issued before under the rule. Cf. Commentary, Partial New Trials, 3 Fed.Rules Svc. 729, 730. Therefore, an order should be entered granting a new trial on the specific issue of Robert McGlothan's capacity to sue for the benefit of Benjamin Hawkins, but defendant's motions attacking the verdict and judgment are otherwise denied.