and approximately midway during the period that he was on the stand is not subject to the argument that he had been confused by innumerable questions on cross-examination, which his counsel has argued to you affected his testimony.
'Now, this was his testimony at this time when he was first asked about it on cross examination:'
(The court then read from the notes of testimony.)
* * * * *
'* * * he did say they were right close to the block, and that was the same impression that Mr. O'Grady had gotten from his view of the engines.'
* * * * *
'It is quite probable, therefore, that you will find that both Mr. O'Grady and Julius Wells, the plaintiff, were inaccurate in their thought as to the location of the stationery engines. But you may find it significant in determining the reasonableness of Mr. O'Grady's conduct, that Mr. Wells with a far better view of it than Mr. O'Grady, testified when first examined on the subject that these engines were right close to the bumper block.' (Italics added.)
Plaintiff argues that this language in the charge is reversible error because (1) it submits fully and prominently the theory of one party and does not call equal attention to the main points of the other party's case, and (2) it contains what plaintiff calls an 'argument for defendant' since it points out that if plaintiff misjudged the location of the standing type 400 engine, it may have been reasonable for Mr. O'Grady to misjudge their location also.
The trial judge has reviewed carefully the testimony and read and reread the speeches of counsel and the charge which must be considered together. For these reasons, the conclusion has been reached that no reversible error is present in the charge when read as a whole and in relation to the closing speeches:
1. In including this reference to plaintiff's testimony in the charge, the trial judge was carrying out his duty to see that the jury rendered its verdict on the evidence relevant to the issues.
The federal courts have held that it is the duty of the trial judge to see that the relevant evidence on the issues to be decided by the jury are submitted to it. See Garrison v. United States, 4 Cir., 1932, 62 F.2d 41; Texarkana Bus Co., Inc., v. Baker, 5 Cir., 1944, 142 F.2d 491, 493, and cases there cited.
In the Garrison case, the court said in 62 F.2d at page 42:
'In addition to this, the trial judge should not hesitate to give the jury the benefit of his views as to the facts, leaving to them, however, the final determination of the issue.'
It has been repeatedly held that it is not reversible error for a federal trial judge to comment upon, and express his opinion upon, a particular item of testimony so long as the decision as to the weight and effect of the testimony is left to the jury.
See Vicksburg & M.R.R. Co. v. Putnam, 1886, 118 U.S. 545, 553, 7 S. Ct. 1, 30 L. Ed. 257; Graham v. United States, 1913, 231 U.S. 474, 480, 34 S. Ct. 148, 58 L. Ed. 319; Lever Brothers Co. v. Atlas Assurance Co., Ltd., 7 Cir., 1942, 131 F.2d 770, 778-779; Zurich v. Wehr, 3 Cir., 1947, 163 F.2d 791, 793.
In the Vicksburg case, the United States Supreme Court stated the rule as follows in 118 U.S. at page 553, 7 S. Ct. at page 2:
'In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; and the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on writ of error.'
The reference to this testimony, which was not mentioned in the closing speeches of either counsel, became important and necessary in the interests of enabling the jury to arrive at a true and just verdict because the plaintiff's closing speech, in relying on Mr. O'Grady's fault, referred to Mr. O'Grady's saying that he could not be sure the engine was near the bumper so that, plaintiff argued, he should have been 'doubly careful.' This was not a case of the court emphasizing the theory of the defendant but was a situation where the trial judge referred to evidence, which had not been mentioned by either party, as 'one factor' which the jury 'may find * * * significant in determining the reasonableness of Mr. O'Grady's conduct * * *.' (see page 9 of this opinion (138 F.Supp. 830)).
cited by counsel for plaintiff for the proposition that the trial judge must comment on evidence of both parties are so different on their facts from this case that they are not relevant authorities in the situation presented by this record. For example, the language constituting reversible error in the charge in the Virginian Ry. Co. case (particularly relied on by plaintiff) contained such sentences as these, see pages 402 and 403 of 166 F.2d:
"You see, as I told you a while ago, if you think that a witness testifies falsely about something, you don't need to believe him on anything, so if you believe that Murdock (the engineer) said he sanded the rail, knowing that he did not sand the rail, then that would be a false statement and you would not have to believe anything he said.
* * * * *
'Murdock had said at a former trial of this case that in the position in which he was sitting, when he testified that he was sitting in the same position that he was when he waved to his daughter so that we know that when he said before it was impossible, sitting in that position, to wave at his daughter, that that wasn't so -- I mean to wave at these boys -- that wasn't so, because he shows now that it was possible -- not only possible, but he had done it just a minute before that."
The court commented on such statements in the charge as follows, at page 402 of 166 F.2d:
'In discussing his evidence as to these matters, the trial judge not only made argument in answer thereto but did so in such a way as to disparage his statements and to imply that he was testifying falsely.'
There is nothing in the charge now under consideration indicating that the plaintiff testified falsely or disparaging his testimony. The trial judge only referred to an important part of plaintiff's testimony which had not been referred to in the arguments of counsel. It should also be noted that the trial judge did refer to testimony and arguments made by counsel for plaintiff, such as plaintiff's reliance on the mark on the fence, the testimony concerning the duty of engineers to look ahead, and the contents of plaintiff's points for charge.
If it was proper for the court to comment on this testimony at all, it seems clear that it was proper to read from the notes of testimony in the same way that plaintiff's counsel had read from the notes of testimony in his closing speech. In Roback v. Pennsylvania Railroad Co., D.C.E.D.Pa.1949, 81 F.Supp. 841, 843, the trial judge quoted the testimony of one of the medical witnesses in his charge. Defendant argued that mentioning the doctor's testimony was such 'emphasis' on his testimony that failure to comment in addition on defendant's medical testimony was unfair to defendant. The court dismissed the motion for a new trial, holding that the action of the trial judge was not reversible error. The refusal to grant a new trial was affirmed on appeal (3 Cir., 1949, 178 F.2d 485), although this point was not mentioned in the opinion of the Circuit Court of Appeals.
Also, plaintiff complains that the trial judge did not point out the plaintiff's later statements on redirect examination that he did not know how far the standing engines were from the bumper block.
As pointed out above,
counsel for plaintiff had gone over this later testimony of plaintiff fully in his closing speech. The language of the charge both referred to the argument plaintiff had made on this point in his closing speech (through mentioning the 'innumerable questions' on cross examination), thereby recalling it to the jury's attention, and pointed out that plaintiff so testified when 'first examined on the subject',
thereby implying that his later testimony had been different.
2. In any event, the use of the language in the charge alleged to be objectionable is harmless error.
Even if the language of the charge, pointing out that plaintiff, as well as Mr. O'Grady, believed that the engine was back near the bumper block, was error, it seems clear that it was harmless error
in view of the jury's special finding that the defendant was negligent. This language was clearly and expressly related to the question of the negligence of Mr. O'Grady.
The italicized language in the charge at page 9 of this opinion 138 F.Supp. 830, makes clear that the discussion of plaintiff's testimony to which objection is made is specifically related only to the issue of defendant's negligence. Also, the issue of damages is discussed in the charge after the issue of negligence and this discussion of damages separates the language alleged to be objectionable from that part of the charge calling the jury's attention to the issue of contributory negligence. To the extent that this testimony was considered by the jury on the issue of contributory negligence,
it would seem to the trial judge to have been helpful, rather than adverse, to a finding that plaintiff acted with due care. Counsel for defendant had pointed out to the jury the proposition urged on the court by plaintiff, namely that the plaintiff did not know where this standing engine was. Then counsel for defendant continued his argument, inferring that plaintiff should have known its location, due to the view available to him, if he had stayed at his post at the east end of his engine. The alleged objectionable discussion of plaintiff's testimony emphasized that, to the extent plaintiff could estimate, the standing engine was way back by the bumper block and, further, that this was also the conclusion of the engineer, who was the only other person on plaintiff's engine.
There was ample evidence from which the jury could find plaintiff 50% negligent under the terms of the Federal Employers' Liability Act without considering the language alleged to be objectionable and, further, that this negligence contributed to the injury (see, for example, the last sentence of footnote 7).
Now, January 26, 1956, defendant's motion for a new trial is denied.