Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
This action to recover damages for the death of Edna Hawkins was brought by her representative under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. A verdict was returned in the amount of $10,000, but the court below granted to the defendant a partial new trial on an issue not pertinent here, and at the same time rejected its arguments for a full new trial or, in the alternative, for judgment in accordance with its motion for directed verdict. 72 F.Supp. 176. This appeal followed the disposition, contrary to the interest of the defendant, of the partial new trial. 74 F.Supp. 808.
The defendant asserts that it is entitled to a retrial of the case because the court below erred in (1) instructing the jury on the evidence with respect to the existence of a reasonably safe footway, and denying the defendant's request for charge on that issue; (2) excluding evidence relating to the marital status of decedent and her husband; and (3) allowing interest from the date of the judgment entered upon the verdict, rather than from the date of the order following the disposition of the partial new trial.*fn1
The issue first raised by the defendant does not encompass the full scope of its alleged liability for negligence, but rather one phase of the case against it. Accordingly, the necessary statement of the evidence is considerably narrowed.
Edna Hawkins suffered her fatal injuries on December 27, 1944, while in the defendant's employ as a switch oiler on its tracks in the immediate vicinity of the Girard Avenue-Forty-Fourth Street Bridge, in Philadelphia. Eight tracks, running in an east-west direction, pass under this bridge, some being separated by the concrete bridge supports or abutments, as they were referred to in the court below. A plan, introduced in evidence, assigns names to these tracks, which, for convenience, will be used here, and discloses their relation to each other and to the abutments. Reading from north to south, the plan is as follows: "Jersey," abutment, "Westward," "Eastward," abutment "Cut," "Departure," abutment, "No. 2 Freight," abutment, "Outward Passenger," and "Inward Passenger."
A few minutes prior to the accident the decedent was given instructions, at a point east of the east side of the bridge, to oil the "No. 28 switch." That meant that she was to oil a switch on the "eastward" track about ten feet east of the east side of the bridge, and another switch on the same track about ten feet west of the west side of the bridge. It is thus obvious that at some time she had to pass under the bridge, there being no evidence of any other means of getting from one side to the other. Although there was no direct evidence that the decedent was trying to get from one side of the bridge to the other,*fn2 the fact is that she was crushed to death just within the east side of the bridge between an engine moving west*fn3 on the "Eastward" track and the abutment to the south of it.
It is conceded, as it must be, that there is no sufficient clearance for a person to stand or walk under the bridge between an engine on the "Eastward" track and the abutment to the south of it. There was evidence, adduced by the defendant, however, of clearances north of the "Westward" track, between the "Departure" track and the abutment to the south of it, and between the "No. 2 Freight" track and the abutment to the north of it. The defendant's evidence also disclosed that the decedent had no duties that would take her to the "No. 2 Freight" track or those to the south of it, the "Outward Passenger" and the "Inward Passenger." These latter three tracks, according to the testimony, are high speed "main" lines, whereas the others in the group are "yard" tracks on which traffic operated at a reduced speed not exceeding 15 MPH. Moreover, one of the defendant's witnesses stated that the designated pathway under the bridge was south of the "Departure" track, and that decedent might have been subject to discipline if she were found along the "main" lines. Another of the defendant's witnesses, however, testified that he had given the decedent her instructions when she first took over the job of switch oiler, and his testimony affords the inference that he had instructed her to use a clearance north of the "Westbound" tracks.
With this evidential background, the defendant requested a charge to the jury as follows:
"In considering the question of negligence on the part of the defendant you may take into consideration the evidence that the decedent had no duties to perform under the bridge; that her duties were to be performed at points either east or west of the bridge and beyond the abutments and that the defendant furnished her a reasonably safe passageway from one point to the other."
This request was refused, but in the course of his instructions to the jury, the learned trial judge said:
"The testimony, as I recollect it, was that Mrs. Hawkins, or Mrs. Smith, as she was known by the railroad company, was to perform her services on tracks which were beyond the tracks over which there has been some evidence offered that she could have crossed and then went through and under the bridge by what they called a sort of footway, as it were, a clearance. But you must bear in mind that the evidence discloses that her work was on the tracks in the opposite direction, and the tracks that she must cross in order to get to this clearance, to go under the bridge, were tracks over which were operated trains at a high rate of speed. It will be for you to determine whether under those circumstances she should cross those tracks to get to that footpath or clearance and go under the bridge, or whether it was the reasonably safe thing for her to go through the bridge where the yard trains were operated at a reduced speed."
We do not think it was error to deny the quoted request for charge. Plainly, the decedent had a duty to be under the bridge at some time. Considering the position of the switches on which she was to work, it is plain, too, that she would have had to cross tracks to reach a "reasonably safe" pathway, if there was one, or follow the "Eastward" track, along which she met her misfortune. It was for the jury to measure the risks involved, and to determine the extent, if any, to which the decedent was contributorily negligent, since the statute under which the action is brought provides for recovery where the defendant is wholly or partially at fault. 45 U.S.C.A. § 51. Whether there was a reasonably safe footway depended, among other things, on the position of the decedent with respect to the pathways, the scope of her work and the area in which she was permitted to operate, her previous experience,*fn4 and the instructions given to her.
Nevertheless, it is patent that the charge as rendered was erroneous, for the evidence was undeniably misstated. The learned trial judge did not consider the error to have been prejudicial, 72 F.Supp., at page 181, and concluded that, "in any event, a new trial is not merited." We are thus to determine whether ...