Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellant's main ground for reversal of this district court judgment in favor of appellee is that it was deprived of a fair trial by reason of the deliberate conduct of appellee's attorney throughout the trial.
The suit was under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Appellee was assistant chief timekeeper for appellant. While on a ladder in the storeroom in appellant's Philadelphia terminal he fell and sustained injuries. On the merits, the disputed condition of the ladder waw important. On damages, the allegation that appellee's back had been seriously injured from the fall was strongly controverted.
The conduct complained of began early in the trial. Plaintiff, who claimed an injury to his back resulting from his fall, was being cross-examined regarding the condition of his back prior to the fall. He admitted that he had had sacroiliac trouble "for the past ten years" and that he had been taking treatments for back trouble "for one kind or another, for ten years before the accident." He said he went once to a doctor during that period. Then he said, "Twenty some years ago, fourteen or fifteen years ago, I went to Doctor Beidelman." He was asked, "In Reading?" He answered, "Yes, sir." He was asked, "How many times did you go, do you know?" Then came one of the objected to interruptions by plaintiff's counsel, Mr. Richter, who instead of waiting for his turn on redirect said:
"Just a minute. Let us get these things straight. If you are talking about things other than the back that is another story. I object to your suggestion that a cold or bronchitis would have anything to do with this. I have the record from which I would like to read; it is the official company record, the medical record in this case, and I think I picked out in my direct examination each and every time when there was anything that could possibly be associated with his back, - if Your Honor will look at this."
The defense attorney moved for a withdrawal of a juror on the ground that the comments had been made in front of the jury. Mr. Richter, still in the presence of the jury, said, "Haven't I stated the truth?" Mr. McConnell, defendant's counsel, said, "I think no." Mr. Richter continued "Of course not, but if Your Honor will refer to Mr. McConnell's record - your own record - ". Mr. McConnell attempted to address the trial judge who broke in and said "I will overrule that motion and give you an exception, Mr. McConnell."
The cross-examination continued with the defense attorney directing the plaintiff's attention to the fact that its subject was plaintiff's back trouble. Plaintiff was asked, "How many times did you see Dr. Beidelman for back trouble? A.Once. Q. Just one time? A. That was caused by bronchial condition. Q. Over a period of ten years - ". And Mr. Richter again broke in the cross-examination and the unfinished question by commenting "That was on account of a bronchial condition the witness said."
A little later one of plaintiff's medical experts, Dr. John, was being cross-examined regarding plaintiff's back condition. The doctor was being reminded that the plaintiff had testified that he had pain with his back for ten years prior to the accident. Then occurred the following:
"Q. Mr. Straub has testified that he had pain with his back for 10 years before this accident, doctor.
"Mr. Richter: - That is not accurate at all, Hour Honor, and I absolutely object to Mr. McConnell insinuating that sort of thing into this record because that is not so.
"The Court: - He said that his back was his weak spot and that he had trouble with that, but nothing in the way of an accident had been testified to.
"Mr. Richter: - And moreover he said he had two periods in which for short periods of time he had some pain in his back and I have these records right in front of me, now, Mr. McConnell, you are not going to put things into this record that aren't in it, and I am going to stop you.
"Let us go right to the record and see. In 1942, Your Honor - I have all these records right here - in 1942 we have an acute cervical sprain which lasted 4 1/2 days. Now, there is nothing more on the back until in 1944, several cervical fractured ribs when he was helping a friend down the steps, and that was a question of six days. Now, we have nothing until we get to 1947 when we have the man with an acute bronchial pneumonia which threw his back out - that is 1947, Your Honor.
"Now, there is nothing whatsoever between 1947 and 1949, the date of this accident, which is over two years.
"The Court: - Mr. McConnell, at side bar we had a little discussion about a question. You said you would put the question. Do you want to put that question?
"Mr. McConnell: - If Your Honor please, I want to point out, in view of Mr. Richter's remarks I want to remind the Court and also Mr. Richter that on the cross examination of Mr. Straub I said to him: 'George, haven't you had sacroiliac trouble for the past ten years and received treatment during that time,' and after a while he said yes. Now, that is what I had in mind.
"The Court: - That is the sacroiliac, nothing from any accident. Dr. John is asking about if there was another accident. He said he had not heard about it.
"Mr. McConnell: - There isn't any other accident that we know of.
"Mr. Richter: - And all that Mr. Straub meant is that 10 years ago was the first time that he had anything with his back. But here are the actual records, and there is no use in trying to insinuate into this case that here is a man who had trouble within a 10 year period, and that is not so.
"Mr. McConnell: - I move for the withdrawal ...