Before BIGGS, McLAUGHLIN, and O'CONNELL, Circuit Judges.
The appeal in the case at bar is directed to alleged errors by the court below in the reception and exclusion of certain evidence. As will be seen from the statement of facts which follows, no small portion of the responsibility for the alleged irregularities can be traced to a lack of artistic presentation by counsel for the litigants. In view of the fact that the instant case has now been tried for the third time,*fn1 we are reluctant to measure with Procrustean standards the discretion exercised by the trial court in the reception and exclusion of that testimony; and it is not without regret that we come to the conclusion that the case should be tried a fourth time.
This is a personal injury case under the Jones Act, 38 Stat. 1185, 41 Stat. 1007, 46 U.S.C.A. § 688. It originally included a claim for maintenance and cure on which the appellant was awarded damages and which is no longer an issue. There was a jury verdict in favor of the defendant on the indemnity action. The trial judge denied plaintiff's motion for a new trial and this appeal is from that decision.
The appellant was captain of the barge "Greater." At the time of his accident, he was 55 years old.Born in Austria, his incomplete knowledge of English made it necessary for him to give his testimony at the trial through an Italian interpreter. The accident occurred around midnight of February 28, 1942. At the time, appellant was alone on the barge and his was the only testimony as to the accident itself. The barge had been towed that day in the Delaware River from Pier 82 Philadelphia to the Philadelphia Navy Yard. According to the plaintiff, in the course of the voyage the barge had taken in water faster than it could be pumped out. Because of this, it was brought alongside the sea wall at the Navy Yard and tied up there. While trying to rig up an emergency pump, plaintiff slipped on a wet platform, striking a stanchion and injuring his left shoulder and back. The defendant denied that there had been any such accident and, among other evidence in support of this contention, introduced the log book of the tug "Atlantic City," which he claimed had towed the barge on the particular occasion. The purpose of this evidence was to show that there was no entry of accident to plaintiff in the log book. The captain and crew of the "Atlantic City" were also permitted to testify. Plaintiff objected to that evidence on the ground that the tug had not been identified as having been the vessel which towed the "Greater." This is appellant's first point on appeal.
Plaintiff on cross examination was asked, "What was the name of the tug that picked you up to take you to the Navy Yard?" He answered, "I think it was called the 'Atlantic' but, of couse, I am not sure as I didn't expect all this to happen." He was then asked, "Who was the Captain on it?" He replied, "The Captain belonged to the Pennsylvania Tug. I don't know his name." He said that the tug tied up to the lighter and started for the Navy Yard at 8:20 A.M. On direct examination, he stated, "A tug came from the Pennsylvania Company and attached itself to my lighter."
Admittedly the barge was loaded with steel piling. Captain Derrickson of the tug "Atlantic City" testified that on February 28, 1942, his tug hauled a lighter loaded with steel piling from Pier 82 to the Navy Yard. He picked up the lighter at 8:50 A.M. on that day and delivered it to the Navy Yard at 10:20 A.M.The "Atlantic City" is a Pennsylvania Railroad tug. The only tugs which that concern had on the Delaware River at the critical time were the "Atlantic City," "Camden," and "Greenwich." There was a tug on the Delaware River during that period named the "Atlantic" and owned by the Standard Oil Company. The lighter towed by the "Atlantic City" was not identified by name in the tug's log and Captain Derrickson could not say that it was the "Greater."
L. J. Koenning, the superintendent of the particular job at the Navy Yard, testified that the lighter "Greater" arrived there on February 28, 1942, between 10 and 11 A.M.; that it was the only lighter which came in that day; that it was loaded with piling; and that it was brought in by Pennsylvania Railroad tugboat. He saw both the tug and the barge come in, but did not know the name of the tug.He identified a demurrage bill from the Pennsylvania Railroad Company for one day's demurrage on the lighter "Greater," which he said was for the trip in question.
The trial judge early in his charge told the jury that "It does not seem to the court here that it is in dispute between the plaintiff and defendant * * * that the said lighter was loaded with steel pilings at Pier 82 under the propulsion of a Pennsylvania tug named the 'Atlantic City' and was being transported to a portion of the Delaware River Navy Yard * * *." The court later said, "I have said the tug transporting the lighter was the 'Atlantic City' because the logs in evidence so indicate and the plaintiff himself so testified that he thought the name of the tug was 'Atlantic', but this is left for you as a question of fact to be determined, whatever may be your opinion, if it may differ with that of the court."
Following the charge, counsel for the plaintiff at side bar said to the court, "If Your Honor please, I except to that portion of the charge wherein you say that it is [not] in dispute that the tug 'Atlantic City' was the tug which towed this barge down." The court replied, "I did not say that. I said it was my opinion - if they found differently, they could, but that was my opinion, which I have got a right to state."
It clearly appears from the above that whether the tug which towed the barge "Greater" was the Pennsylvania Railroad tug "Atlantic City" was a question of fact to be determined by the jury, as was indicated by the trial court. In this situation the log of the "Atlantic City" and the evidence of her captain and crew were quite properly admitted.
Appellant's second point is that the District Judge charged that it was undisputed that the "Atlantic City" towed the "Greater." This is completely disposed of by the above quotations from the court's charge, where he fairly and plainly left that question to the jury.
Appellant's final point has to do with the exclusion of testimony of Messrs. Skalamera and Ruggieri and that of Dr. Bartel, all of whom were called in rebuttal by the plaintiff.
By Skalamera, plaintiff offered to show the condition of the barge on March 1, 1942, shortly after the accident, and also that on that day Skalamera saw plaintiff with his arm in a sling. All this had been testified to by plaintiff as his own witness and was very much a part of his affirmative claim. In barring the testimony, the court said, "* * * the former record in this case shows that this man was a witness for the plaintiff in chief on your trial there, and there ...