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March 16, 1956

Lucille H. BURCH

The opinion of the court was delivered by: DUSEN

Plaintiff has filed a motion for a new trial after the jury returned a verdict for defendant at the conclusion of a trial lasting three days in this suit brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51.

At approximately 7 a.m. on a cold, clear, dry day in late November 1950, the plaintiff (a 55-year old widow weighing about 183 lbs. and about 5' 4 1/2' tall, who had been working for the defendant railroad company as a track laborer *fn1" since April 20, 1944) started to work on the south side of Scott's Lane grade crossing of the defendant company. She was bringing loose earth on a small, square, three-foot long shovel from a pile of dirt south of the southerly track and on the east side of Scott's Lane (see spot marked in red on P-2, N.T. 42 *fn2" ), to a point near the west edge of the paved road (see spot marked in red on P-1 and N.T. 32) where the dirt was being filled in under the track and beside the track, apparently in order to give a better foundation for the wooden planks placed next to the tracks (N.T. 42 and D-1), *fn3" which had raised above the level of the rails. Scott's Lane, which was paved with macadam on a stone base, came up a hill with a 15% to 16% grade to the crossing and the base of the pile of dirt was about four feet below the level of the ground at the track where plaintiff was filling in the holes. Plaintiff was wearing galoshes, work clothes and a jacket. All the other members of the section gang or group of workers to which plaintiff was attached were on the north side of the railroad tracks, except for one man who was loosening the dirt in the dirt pile from which plaintiff took the loose dirt on her shovel. Plaintiff had walked back and forth across this road for about an hour prior to her fall.

 Between 8:00 and 8:15 a.m., while crossing the road with an empty shovel toward the east side in order to get more dirt, plaintiff fell at a point (see spot marked on P-5 with largest red dot -- N.T. 48) three feet south of the southerly track and 2 1/2 to 3 feet west of the east edge of the paved road. Plaintiff testified as follows concerning her fall (N.T. 51-52):

 'A. When I was going to get a shovel of dirt, coming back my feet just rolled out from under me and I fell. I could feel pebbles and things -- that's all I could feel on my feet, so I went down.

 'By Mr. Richter:

 'Q. Now, when you fell down, could you see anything on the ground near your feet that gave you any indication of what had happened? A. All I see was marks from pebbles where my heels had pushed through.

 'Q. Now, tell us what the surface of the road was like at that place. A. It was worn out. The road was worn out, and all full of pebbles all the way down, from the rail down.

 'Q. How big were these pebbles? A. About the size of my little fingernail.

 'Q. Now, when you say pebbles, do you mean two, three, five, or how many? A. No, sir, I mean all over. There is hundreds of them.

 'Q. And you say when you fell you saw where your heel had done what? A. Pushed through. Pushed through the pebbles and stones.'

 Mr. Di Luzio, *fn4" foreman of plaintiff's section gang, found an ash-color, five- or six-inch heel mark at a level place in the vicinity of where plaintiff fell, but only very few pebbles (N.T. 330), perhaps 20 or 30 scattered around (N.T. 331). Also, he testified that, within two months of the accident, he asked plaintiff what caused her to fall and she never mentioned any pebbles as causing her to fall. She was carrying an empty shovel at the time that she fell. He described the work being done by plaintiff on this day as 'light work.'

 Although the plaintiff testified that the road was narrow and worn out in November 1950, Mr. Chiolan, whose office was on this road south of the crossing, testified that the condition of the paving on this road was generally good in November 1950. Mr. Osborne, a field supervisor for the Philadelphia Department of Streets, testified that he had inspected the road in April 1951 and found that the surface was worn away down to the stone base, with the result that cars would pick up the stones and carry them down the hill. This made the road very slippery so that he 'had to be careful to pick his step up from the bottom all the way to the top' of the hill. He also testified that there would not be much difference between the condition of the road when he inspected it in April 1951 and its condition in November 1950.

 Plaintiff was taken to the Women's Medical College Hospital, where it was discovered that she had a fracture of the inner side of the left ankle. Several casts were put on her left leg from time to time during the period prior to the summer of 1951. *fn5" She was seen by representatives of the defendant's medical department either at her home or at their office approximately 17 times prior to July 31, 1951, *fn6" when she was given her return to work card. During this period (particularly in June and July), defendant's medical department asked plaintiff to remove the tight, constricting bandage she was wearing and to walk without her crutch in order to exercise her left ankle and leg. *fn7" Dr. Jones, called by plaintiff, stated that in the average case of this type, weight bearing on the fractured ankle was desirable eight weeks after the initial injury. Dr. Albert, who examined plaintiff on July 17, 1951, at defendant's request, testified that she was able to return to work and Dr. Hermel, who took X-rays of her ankle on that date, testified that the fracture was 'well healed * * * by well organized bony union in excellent position' with no evidence of fibrous material, arthritis or atrophy. Dr. Jones, who examined plaintiff in April 1952, testified that she had no need for a cane or crutches at that time and that the first evidence of soft tissue atrophy from disuse was observed by him on his second examination on October 27, 1955. Also, Dr. Jones testified that prolonged use of a brace, tight bandage or crutch would cause atrophy.

 Subsequent to the summer of 1951, plaintiff also received treatments at Philadelphia General and Temple University Hospitals. Dr. Bonner (one of plaintiff's medical witnesses) diagnosed her condition on November 9, 1955, as 'arthritis, tenosynovitis, bursitis, and 10-20% nerve injury.' *fn8" Dr. Farrell, called by plaintiff, stated that his X-rays taken in November 1955 indicated (a) definite evidence of deformity at a location where it would cause disability, (b) that the joint would become tired more quickly than a normal joint with walking, (c) that the condition was permanent, and (d) that there was slight atrophy due to disuse, as well as evidence of arthritis. *fn9" The plaintiff testified that the doctors had not payed 'much attention' to her complaints (N.T. 70-73).

 In view of the strong feelings of counsel in favor of, and against, the motion for new trial and the length of the briefs and letters *fn10" with authorities which have been submitted, the trial judge has considered almost all the objections to the conduct of the trial raised by counsel for plaintiff at greater length than is usual. The inability of the trial judge to see any merit in plaintiff's contentions rests on basic differences of approach in these three particulars, as well as on the matters covered in parts I to III of this opinion below:

 1. A federal trial judge is not a mere moderator but has an affirmative duty to see that the relevant evidence on the issues to be decided by the jury is submitted to the jury as clearly as possible. See Packwood v. Briggs & Stratton Corp., 3 Cir., 1952, 195 F.2d 971, certiorari denied, 1952, 344 U.S. 844, 73 S. Ct. 61, 97 L. Ed. 657; Garrison v. United States, 4 Cir., 1932, 62 F.2d 41, 42. *fn11"

 The approach of counsel for plaintiff is exemplified by this language made in objection to the charge (N.T. 525):

 'I take exception to the fact that Your Honor took the trouble to remark, something which the defendant's counsel never even thought of, that while Dr. Bonner saw the records at the Philadelphia General Hospital and saw the records up at the Temple Hospital, he did not see the records up at the Women's Medical College Hospital.' (Emphasis supplied.)

 As the trial judge understands his function, the question of whether defendant's counsel thought of a material point is not the test of whether it is worthy of being called to the jury's attention. *fn12"

 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. *fn13" See Vicksburg & M.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. *fn14"

 2. The evidence in this case presented a much stronger case for defendant than for plaintiff and the trial judge cannot make up for deficiencies in the plaintiff's evidence in order to present a case of equal weight to the jury. See Gallagher v. Hildebrand, 285 Pa. 350, 352, 132 A. 174 (1926). The trial judge tried to lean over backwards in being impartial and fair to the plaintiff because of the weakness of her case. *fn15"

 3. Where counsel, with advance notice that his case will be listed first on the first day of a trial period, fails to present to the trial judge any written trial memorandum and does not present any Requests for Charge within the time prescribed by the rules, he cannot object that his contentions have not been submitted to the jury in the manner he would have preferred.

 I. Contention That Verdict Was Against The Law (Paragraphs 3, 10 & 36 of Motion for New Trial).

 Plaintiff apparently contends under this point that the court ruled, as a matter of law, that the plaintiff could not recover on the ground that defendant subjected her to a job too hard for her to perform as a woman. The court did not use any such language in the charge and, at the request of counsel for plaintiff, did charge the jury that they should take into consideration 'the physical capabilities of the employee under the circumstances' in determining whether the plaintiff exercised 'ordinary care to assure that' the plaintiff had a reasonably safe place to work (N.T. 506-507). It also should be noted that plaintiff neither included in her requests for charge filed with the court a request to charge that defendant subjected plaintiff to a job too hard for her nor did plaintiff specifically point out to the court its failure to charge on this point. *fn16" None of the cases relied on by plaintiff *fn17" to support her position that defendant was negligent in giving plaintiff the type of work she was doing at the time of the accident are applicable to the facts of this case. *fn18" Her foreman testified that he gave her the lighter work of carrying loose dirt in a small shovel and would not permit her to lift the planks near the rails (see footnote 1). There is neither evidence that she complained that the work assigned to her on this day (or any other day) was too hard for her nor evidence that the carrying of the dirt contributed to her fall, since she had only an empty shovel in her hand when she fell (N.T. 45). *fn19" Hence, there is no evidence that plaintiff was forced to do work which was too difficult for her within the theory of the cases cited in footnote 17. The courts emphasized that the female plaintiffs had complained that the work was too difficult for them in the last two cases cited in that footnote.

 In this connection, plaintiff's counsel argues in his brief (pp. 24-26) that the action of the trial judge in striking out the testimony of Mr. Morrison, track supervisor of one sub-division of defendant's railroad, was error sufficient to justify a new trial, even though no objection by plaintiff's counsel to this ruling appears on the record (N.T. 430-431). Mr. Morrison, called on cross-examination by plaintiff under F.R.Civ.P. 43(b), 28 U.S.C., *fn20" was asked about a memorandum concerning a road trip by the Board of Directors of defendant on April 26 and 27, 1949, which memorandum concluded with this paragraph (P-12):

 'Also make general cleanup of papers, rubbish, etc. on your section and keep your women laborers out of sight when this train passes.'

 He testified that some of the time of both men and women track laborers had to be spent in picking up papers and that this memorandum was put out because the Directors did not like to see track laborers doing light work, since they were hired and paid for heavy work. When plaintiff's foreman, Mr. Di Luzio, was questioned about receiving the orders contained in this memorandum, he testified that he did not remember receiving the order and counsel for plaintiff acquiesced in the court's direction that Mr. Di Luzio's testimony on this point be stricken. Mr. Di Luzio never testified that he passed these orders on to plaintiff and he testified, to the contrary, that he gave her the lighter work of his own volition (see footnote 1). *fn21"

 In an effort to show that the abovequoted language was recognition on the part of the railroad that its management was requiring women to do work beyond their physical capabilities (N.T. 75) and did not approve of their doing light work, such as picking up papers, counsel for plaintiff also examined Mr. Morrison concerning a memorandum of February 15, 1949, to plaintiff, telling her to report for a hearing and investigation involving her inability to perform the work of a track laborer, and a memorandum of February 26, 1949, asking her to report on March 1 for a supplemental hearing involving this subject. Mr. Morrison testified that plaintiff stated she was able to do the work of a man and he did not remember her ever complaining that her work was too heavy. Plaintiff testified that she was always ready and willing to do any of the work of a track laborer prior to November 27, 1950.

 Since plaintiff was unsuccessful in showing any admission by the company, or by Mr. Morrison personally, or any other evidence that plaintiff was doing any work in excess of her physical ability or that plaintiff had ever made a claim that she had been asked to do work which was too difficult for her, and since consideration of this testimony and these memoranda had emphasized conflicting inferences that might be drawn from the language of four exhibits (P-9, P-10, P-12 and P-13), *fn22" offered by plaintiff, the court granted defendant's motion to strike the testimony of Mr. Morrison just before the closing speeches *fn23" and advised the jury to disregard the testimony of Mr. Morrison at the beginning of the charge. *fn24" Since the court did not include P-8 *fn25" in the motion to strike and permitted this exhibit to go out to the jury (N.T. 533), the record contained both in this exhibit and in plaintiff's testimony evidence that plaintiff was required, as far as the defendant company was concerned, to do all the duties of a track laborer. The controversial memoranda and Mr. Morrison's testimony added nothing to the record which could do more than indicate that defendant believed at one time in 1949 that plaintiff took the position that she was incapable of doing all the work of a track laborer, that two hearings were held on the subject, and that at these hearings she said she was able to do the work of a male track laborer. *fn26"

 It is improper to permit in evidence testimony which might tend to draw the minds of the jury from the important issues, especially where it may prejudice, confuse or mislead them into giving their attention to collateral matters. See Cleland v. Peters, D.C.W.D.Pa.1947, 73 F.Supp. 769, 773; Howser v. Pearson, D.C.1951, 95 F.Supp. 936, 941; *fn27" cf. United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 229-230, 60 S. Ct. 811, 84 L. Ed. 1129; National Labor Relations Board v. Donnelly Garment Co., 1947, 330 U.S. 219, 236, 67 S. Ct. 756, 91 L. Ed. 854; Thompson v. American Steel and Wire Co., 1934, 317 Pa. 7, 11, 175 A. 541.

 In the Cleland case, the court rejected certain evidence until a proper foundation had been established to make it relevant. No such foundation was ever established in this case relating the memoranda either to plaintiff or to the issue of the physical difficulty of the work done by plaintiff at the time of the accident.

 II. Contention That Verdict Was Against The Evidence.

 A. Testimony by Dr. Cherner from Opinions in Medical Reports by Other Doctors (Paragraph 6 of Motion for New Trial).

 It seems clear that even if there were errors in the admission of medical testimony, all of which concerned solely the damages, such errors would be no basis for a new trial in view of the verdict for the defendant. See George P. Clark Co. v. Kuebler Foundries, 3 Cir., 1922, 285 F. 568, 569; Gallagher v. Hildebrand, 1926, 285 Pa. 350, 352, 132 A. 174; Harkinson v. Pennsylvania Co., etc., 1938, 329 Pa. 209, 212, 198 A. 11. *fn28" However, since the plaintiff has put such reliance on this reason for new trial in his brief, the trial judge will explain his legal position in admitting this testimony.

 Plaintiff's counsel called Dr. Cherner, a medical doctor employed by defendant to take care of its injured and sick employees and follow their progress (N.T. 294), with his records, and documents concerning plaintiff (N.T. 260). Dr. Cherner was asked whether his records showed that it was a fact that Dr. Wolcott at Women's Medical College Hospital wanted to perform an open reduction operation on plaintiff but that Dr. Neupauer (head of defendant's medical department) directed that the operation not be performed and answered 'That is correct.' Dr. Cherner then asked to explain his answer by reference to a letter of August 22, 1951 (P-11). The trial judge ruled, on objection by plaintiff, 'that the witness should not discuss the letter of August 22, 1951, as the matter therein is a proper subject of cross-examination.' *fn29" However, counsel for plaintiff, rather than waiting for the cross-examination as suggested by the court, proceeded to examine this witness on part of this letter. The witness commenced a lengthy explanation of the background of the letter, but counsel for plaintiff first objected at page 275, where Dr. Cherner testified that a Dr. Swenson, of Jefferson Hospital, took X-rays in June 1951 which showed an old, healed fracture at the lower end of the fibula. *fn30" Particularly in view of the previous and later testimony, in accord with the opinion of Dr. Swenson, that the fracture was healed, *fn31" this testimony was, at the least, admissible in order to show the good faith and reasonable cause of defendant's medical department in opposing the proposed open reduction operation. *fn32" Counsel for plaintiff's objection to cross-examination of this witness on another part of this one-page letter of August 22, 1951, was properly overruled, since the defendant was entitled to show its objection to the operation was based, in part, on the findings of the Women's Medical College Hospital's radiologist (Dr. Vastine), irrespective of the validity of those findings. *fn33"

 B. Verdict as Against the Weight of the Evidence (Paragraphs 1 and 2 of Motion for New Trial).

 There is ample evidence in the record to support the verdict of the jury that the plaintiff's injuries did not result, in whole or in part, from the negligence of the officers, agents, or employees of the defendant. *fn34" The jury was entitled to find that the plaintiff's injuries were not the result of any negligence in providing for plaintiff the path from the pile of dirt to the track across the paved city road, in view of Mr. Chiolan's testimony that the condition of the road just south of the track was generally good and Mr. Di Luzio's testimony that there were 'very few' pebbles on the road. A careful reading and re-reading of the record has confirmed the opinion of the trial judge as stated as follows at the conclusion of the plaintiff's case, when defendant made a motion for dismissal of the action under F.R.Civ.P. 41: *fn35"

 'I am very concerned as to liability. I will permit the case to go to the jury, but I think it is only fair to say to Mr. Richter, for whatever value he considers it, that I consider this case is a very thin case on liability. I think it is only fair that I tell Mr. Richter this.'

 III. Contentions Concerning the Charge.

 In considering the many objections made by plaintiff to the charge, the following two principles must be kept in mind:

 1. The charge must be considered as a whole. Plaintiff's brief, in many cases, takes a small portion of the charge (often a single sentence -- see, for example, pages 44 and 84) and criticizes it without taking into consideration other parts of the charge. The charge must be judged in its entirety. McLeod v. Union Barge Line Co., D.C.W.D.Pa.1951, 95 F.Supp. 366, 369, affirmed 3 Cir., 1951, 189 F.2d 610; Goodyear Fabric Corp. v. Hirss, 1 Cir., 1948, 169 F.2d 115, 117; Louisville & Nashville R. Co. v. Farmer, 6 Cir., 1955, 220 F.2d 90, 98-99. *fn36"

 2. Plaintiff's requests for charge were not submitted within the time prescribed by the rules and need not be considered. *fn37" Both parties had ample notice that this case would be called for trial at 10 a.m. on the first day of the trial period, but the trial judge received no authorities, or statement of position, in writing from counsel for plaintiff until approximately 9:30 of the morning he was scheduled to give his charge at 9:45. *fn38"

  The first sentence of F.R.Civ.P. 51 provides:

 'At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.'

 Under such circumstances, it is clear that the failure of the trial judge to read all these requests for charge would not have been ground for a new trial. *fn39" See Paul v. Duluth, Missabe & Iron Range Ry. Co., D.C.D.Minn.1950, 96 F.Supp. 578, 580.

 A. Part of Charge Concerning Sympathy and Prejudice *fn40" (Paragraph 4 of Motion for New Trial).

 The closing speech to the jury of counsel for plaintiff contained this language:

 'That is for five long years she would have made $ 60 or $ 62 a week, whatever it amounts to, and she would have had that $ 15,000 to spend on herself, and, yes, to be a human being herself, too, and to continue to do the same kind of decent thing she did before when she took two colored foundlings and raised them as her own, when she raised two little children like her own, and gave to them a mother's feeling, a mother's care.

 'If she wanted to spend it on those little children, she had a right to do it. She had a right to have that $ 15,000. coming into her home, slowly, in small amounts, save a dollar, do something that would give her pleasure; and her pleasures in her simple way were not fancy dress and fancy living, but being a mother to little children that needed it. I think that nothing bespeaks more wondrously for this fine little woman than what she actually did, because her acts speak louder than words.' (N.T. 448-449).

 '* * * so I give you my solemn word that whatever this woman gets will be protected for her with some substantial life insurance company, so that she will be paid by them week by week and year by year, and if she should pass away from this world before that time, let her leave to those who are near and dear to her what any of us would leave if we had accumulations that we wanted to leave to our family or those that were dear to us.' (N.T. 455-456).

 In view of this emphasis on these 'little children' and the plaintiff having something to leave to those 'who are near and dear to her,' the trial judge felt it was his duty to neutralize any possible prejudice by including in his charge a sentence indicating that there might be those interested in the defendant who were also in need and included the following paragraph in his charge:

 'If you are sympathetic or prejudiced in favor of or against either the plaintiff or the defendant, you should not allow such sympathy or prejudice to influence you at all in your verdict. You should no more be swayed by sympathy for the plaintiff than for the widows and orphans who may be receiving dividends or interest from the defendant company and who may need that income for themselves and for their families. No sympathy of any sort for either side should play any part in your decision.' (N.T. 483).

 The Federal Courts have consistently and repeatedly emphasized that the Federal trial judges have an affirmative duty to act on their own motion and to counteract irrelevant, prejudicial remarks of counsel. See Chicago and North Western Ry. Co. v. Kelly, 8 Cir., 1934, 74 F.2d 31, 35; F. W. Woolworth Co. v. Wilson, 5 Cir., 1934, 74 F.2d 439, 442-443, 98 A.L.R. 681; London Guarantee & Accident Co. v. Woelfle, 8 Cir., 1936, 83 F.2d 325, 338-339; Beck v. Wings Field, Inc., 3 Cir., 1941, 122 F.2d 114, 117; Hockaday v. Red Line, Inc., 1949, 85 U.S.App.D.C. 1, 174 F.2d 154, 156, 9 A.L.R.2d 601; New York Central R. Co. v. Johnson, 1929, 279 U.S. 310, 318, 49 S. Ct. 300, 73 L. Ed. 706.

 B. Part of Charge Concerning Burden of Proof (Paragraphs 5, 25 and 26 of Motion for New Trial).

 The portions of the charge concerning the burden of proof is contained in the paragraphs on pages 490, 495-496 and 511. Plaintiff objects to the use of the word 'convince' once and the word 'conviction' twice on page 490. One can agree with counsel for plaintiff and Judge Frank that it would be better not to use those words in a civil case without finding their use, together with language making clear that the burden was to prove 'by the weight or fair preponderance of the evidence' grounds for a new trial. See Larson v. Jo Ann Cab Corp., 2 Cir., 1954, 209 F.2d 929. Counsel for plaintiff seeks to distinguish this decision, which refused to grant a new trial even though the words 'convince' or 'conviction' were used many times, on the ground that no objection was made in that case to the charge. However, although counsel for plaintiff objected to the charge, which he contends repeatedly commented on the kind of proof required, he did not object to the use of the words 'convince' and 'conviction,' which use could have been remedied easily if objection and the ground therefor had been stated distinctly as provided by F.R.Civ.P. 51. *fn41"

  Plaintiff also objects to the statement that 'The evidence must do more than raise a doubt in your mind * * *.' *fn42" In using this wording, the trial judge was relying on the language of the United States Supreme Court in Commercial Molasses Corp. v. New York Tank Barge Corp., 1941, 314 U.S. 104, at page 112, 62 S. Ct. 156, at page 161, 86 L. Ed. 89, where the court said:

 'Wherever the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of fact is unable to resolve. (Citing cases.) The English courts * * * have reached the same conclusion. (Citing cases.)' *fn43"

 Counsel for plaintiff argues that the facts of the Commercial Molasses case are different than those involved here. While this is true, the Supreme Court in that case discussed the burden of proof in a civil case at length and plaintiff's distinctions do not seem significant. Also, counsel for plaintiff submitted no requests for charge on the burden of proof and no requests at all within the time prescribed by F.R.Civ.P. 51. *fn44"

 The complaint of counsel for plaintiff at pages 39 ff. of his brief, that the charge indicated that the preponderance of the evidence was a heavier burden than that contemplated by the language of 'reasonable doubt' applicable to a criminal case, does not seem valid to the trial judge. The exact language used is quoted in footnote 42 and there was no use of the term 'reasonable doubt' or explanation of its meaning to this jury, which had only been sitting on civil cases during this term of their duty.

 Plaintiff argues (page 86 of her brief) that there was too much repetition of the burden of proof. The space given to this subject occupied three paragraphs (less than three pages) of a charge of 36 pages (not including the part of the charge dealing with contributory negligence, which covered one page). *fn45"

 C. Portion of Charge Concerning Duty To Use Reasonable Care To Provide Safe Place to Work (Paragraphs 16 to 20 & 27 of Motion for New Trial).

 The language of the charge dealing with this subject is found at N.T. 489-491, 505-507, 528-529, and last sentence of paragraph on 530. *fn46" The trial judge believes the instructions given are in accordance with the United States Supreme Court decisions relied on by plaintiff *fn47" and that the contents of plaintiff's requests which were not read or are deemed not to have been read (see footnote 38) and nothing material in view of the facts of this case, even though those requests were not presented within the time limit prescribed by F.R.Civ.P. 51. Counsel for plaintiff makes the following additional objections which are related to this part of the charge: *fn48"

 1. The contention that the charge indicated that defendant's negligence depended on the conduct of Mr. Di Luzio alone is not supported by the record. *fn49" The charge repeated on at least six occasions that the jury should decide whether defendant used reasonable care under all the circumstances (N.T. 489, 495, 496, 506-507, 510, 528). The charge repeated on at least five occasions that the Federal Employers' Liability Act granted recovery for injuries resulting from the negligence of 'any of the officers, agents or employees of the carrier.' *fn50" If there could have been any doubt on this subject in the jury's mind prior to the court's supplementary charge, it would seem to have been covered by the language of the charge at pages 528-529. *fn51"

 2. The contention that the trial judge should have charged that the defendant had an affirmative duty to inspect the crossing prior to plaintiff's arrival at work and that the portion of the basic charge on this point contains error is not supported by the cases. *fn52" Plaintiff's brief (p. 78) argues that the charge should have included a statement that the plaintiff had the duty to prove affirmatively inspection prior to the fall because counsel for defendant, in his opening speech, 'told the jury that since the Railroad Company did not own the public highway where the accident happened that that fact was a complete defense to his case.' *fn53" The trial judge did instruct the jury on this point on two occasions:

 (a) After the opening speeches and before any testimony was offered, the court said (N.T. 31):

 '* * * in order to prevent your getting any misconceptions or wrong ideas from what may have been said yesterday, I instruct you that it is not necessarily significant that the injury to plaintiff may have occurred on the City street rather than on the property of the defendant, the Reading Company.'

 (b) The court read paragraph 8 of plaintiff's points for charge, which stated that defendant had an affirmative duty of inspecting the place of work (N.T. 505-506).

 After explaining that defendant had the duty to use reasonable care to provide plaintiff with a safe place to work under all the circumstances, the trial judge also said in the basic charge that the jury would have to decide whether defendant's foreman should have had notice of any unsafe condition prior to the time of plaintiff's fall. *fn54" In the supplemental language of the charge quoted on page 31 above, the court specifically pointed out that the jury might find the defendant negligent in failing to send out 'superiors (of Mr. Di Luzio) to this crossing for this type of work.' The trial judge finds that the cases (of the many cited by both counsel) which are most in point on this subject are Frizzell v. Wabash R. Co., 8 Cir., 1952, 199 F.2d 153, 157-158, and Kaminski v. Chicago River and Indiana R. Co., 7 Cir., 1953, 200 F.2d 1, 4. *fn55" In the Kaminski case, the court said at page 4:

 'Before defendant can be charged with negligence in failing to remedy the condition which caused plaintiff's injury, or failed to warn plaintiff of the existence of such a condition, it is necessary to establish that the defendant had actual knowledge of the condition, or, in the exercise of ordinary care, should have known of its existence.'

 The court believes that this part of the charge on this point is supported by these cases and not inconsistent with the United States Supreme Court cases which are reviewed in the Frizzell case, 199 F.2d at page 157. Plaintiff's point 8 was more favorable to plaintiff than the law prescribes under these facts and reading it was harmless error.

 3. The contention that the reference to dynamite established a false standard of care and duty is not supported by the record. *fn56" In an effort to comply with the United States Supreme Court's holding that the duty of the employer becomes more imperative as the risk increases, *fn57" the charge included this language (N.T. 491):

 'If a railroad employee is engaged in carrying dynamite, clearly the degree of care imposed on the railroad to give him or her a smooth passageway is higher than when he or she is carrying a light load of dirt. You will remember the uncontradicted testimony of the foreman that he told her to do light work and that she was carrying light loads. At least, that is my memory, and if my memory does not agree with yours, again, that is for you to determine.

 'Reasonableness varies with the place and the danger of the work. Less diligence is required to constitute reasonable care where the danger is slight than would be required where the danger is great.'

 Counsel for plaintiff objected to the reference to dynamite at the end of the charge and the trial judge used this supplementary language on this point (N.T. 529):

 'When I was referring to dynamite, of course, that was purely an example. It had nothing whatsoever to do with this case. I was just trying to illustrate the principle that the greater the danger of a particular work, the greater the burden is on the railroad. It varies according to the circumstances, of course. You can understand that, and I was just using that as an illustration. It has nothing whatsoever to do with this case.'

 This does not seem to the trial judge to be error. *fn58"

 4. The contention that the part of the charge mentioning an accidental slip is error is not supported by the law. *fn59" After defining negligence, the duty of defendant to use reasonable care in furnishing its employees with a safe place to work and the burden of safe place to work and the burden of defendant would not be negligent 'if you find that the injury resulted from an accidental slip on one of a few pebbles.' *fn60"

 The decided cases support the principle adopted by the trial judge that the question of whether an accident is unavoidable or is the result of defendant's negligence should be submitted to the jury where the evidence supports the possibility of an unavoidable accident. See El Paso Electric Co. v. Surrency, 10 Cir., 1948, 169 F.2d 444, 447; Weschler v. Buffalo Lake Erie Traction Co., 1928, 293 Pa. 472, 476-478, 143 A. 119, 121; Springfield Township v. Indemnity Insurance Co., 1949, 361 Pa. 461, 463, 64 A.2d 761, 762. *fn61"

 The cases cited by plaintiff *fn62" involve factual situations where there was no evidence to show that plaintiff's injuries resulted from any cause other than negligence. In this case, if the jury believed Mr. Di Luzio and Mr. Chiolan, there was ample evidence from which the jury could find that plaintiff's route took her across a well-paved portion of a macadam road with very few pebbles and that her injuries resulted from an unavoidable accident. *fn63"

 D. Part of the Charge Concerning Inferences from Failure to Call some Members of Plaintiff's Section Gang as Witnesses (Paragraph 22 of Motion for New Trial).

 Where potential witnesses are in court and available to both parties, 64 the failure to produce is open to an inference against both parties, the strength of the inference being up to the jury under the circumstances existing in the case. Delaware & Hudson Co. v. Nahas, 3 Cir., 1926, 14 F.2d 56, 60; United States v. Cotter, 2 Cir., 1932, 60 F.2d 689, 692, certiorari denied 1932, 287 U.S. 666, 53 S. Ct. 291, 77 L. Ed. 575; United States v. Beekman, 2 Cir., 1946, 155 F.2d 580, 584; Wigmore on Evidence (3rd Ed. § 288). *fn65" There is no requirement that the trial judge comment on these possible inferences, but he has the right to do so, pointing out such circumstances bearing on the testimony as exist in the particular case. See United States v. Cotter, supra, 60 F.2d at page 692; Century Indemnity Co. v. Arnold, 2 Cir., 1946, 153 F.2d 531, 534, certiorari denied 1946, 328 U.S. 854, 66 S. Ct. 1346, 90 L. Ed. 1626. *fn66"

 In view of the arguments made by plaintiff's counsel to the jury concerning the failure of defendant to call the other members of plaintiff's section gang who were present in court, *fn67" the trial judge considered it proper to point out not only he inferences that could be drawn from failure to call these employees but also that possibly the reason these witnesses were not produced was that even the plaintiff admitted all but one of them were on the other side of the track from the place where she fell and, hence, would not have been in a position to give testimony of value. *fn68" In a factual situation such as this, courts have consistently recognized that no inference can be drawn from the failure to produce potential witnesses unless their testimony would be superior to that already in the record. See Wigmore on Evidence (3rd Ed.), § 287; *fn69" Morton v. United States, 1945, 79 U.S.App.D.C. 329, 147 F.2d 28, 31, certiorari denied, 1945, 324 U.S. 875, 65 S. Ct. 1015, 89 L. Ed. 1428; Commonwealth v. Tauza, 1930, 300 Pa. 375, 381, 150 A. 649.

 It should be noted that the court specifically pointed out to the jury (N.T.531) that 'the defendant might have called (these potential witnesses) and didn't * * * and I think that is in accordance with the arguments which were made to you by counsel.' Particularly since counsel for plaintiff was the only counsel to ask the jury to draw any inference from the failure of these potential witnesses to be placed on the stand, the language of the charge on this point was more favorable to the plaintiff than the above-mentioned rules of law prescribe for such a situation. *fn70"

 E. Part of Charge Concerning Testimony of Messrs. Osborne and Chiolan (Paragraphs 23, 24 & 15 of Motion for New Trial).

 At page 141 of 140 F.Supp. there is summarized the testimony of two impartial witnesses (Mr. Osborne called by plaintiff and Mr. Chiolan called by defendant) concerning the condition of the road at the place where plaintiff fell. To recapitulate in a sentence, Mr. Osborne testified that the whole road was in bad condition and slippery and Mr. Chiolan testified that the road was in generally good condition at the place of this fall. Plaintiff contends that the charge incorrectly stated the testimony of Mr. Osborne *fn71" by saying that he did not know what the condition of the road was. *fn72" In fact, the charge stated that Mr. Osborne testified that the road was very slippery; that it had holes in it; that he had to be careful to pick his step in walking up it in April 1951; and that he estimated the road was in pretty much the same condition in November 1950, when the accident took place. On rereading the transcribed notes, it appears the charge was correct. Mr. Osborne testified that he had the road under his supervision in April 1951, not November 1950. *fn73" Therefore, this contention that the charge incorrectly stated this testimony is not supported by the record.

 Plaintiff also claims that the testimony of Mr. Osborne was minimized and that of Mr. Chiolan given undue prominence. This contention is apparently 74 based on the language indicating that Mr. Osborne's testimony (normally city streets were repaved only because of need) could be reconciled with Mr. Chiolan's testimony (in this case, the repaving was done at least in part due to the gift by his company of seven feet of their street frontage in order to secure a wider, paved road from which their tractor-trailers could turn into their plant south of the crossing). *fn75" The record supports fully this language of the charge. *fn76"

  The summary of Mr. Chiolan's testimony in the charge was factually accurate. Less space was devoted to Mr. Chiolan's testimony than to Mr. Osborne's testimony in the charge, so it is difficult to see the basis for the claim of 'undue prominence.'

 F. Parts of Charge Concerning Statement Obtained From Plaintiff and the Mere Fact That Damages Were Covered Did Not Indicate Liability (Paragraphs 21 and 35 of Motion For New Trial).

 Counsel for plaintiff contends that the summary of plaintiff's testimony on liability in the charge (N.T. 492-493) disparaged the plaintiff and her case. The court has reread her testimony and the testimony (Exhibit D-1) she gave at the hearing in January 1951, two months after the accident. The charge seems accurate and not disparaging. *fn77"

 Complaint is also made that the language of the charge improperly repeats 'over and over again' that the mere fact that the court charged on the subject of damages 'was not to create the impression that the court was in favor of damages or that there was liability.' The charge did not use the above-quoted language employed by plaintiff and in only two places said that the mere fact that the charge covered damages is not to be taken as an indication of the trial judge's views on the question of liability. The record does not support either plaintiff's contention that this language was repeated 'over and over again' *fn78" or her contention that this language inferred that the court thought no damages should be awarded. *fn79"

  G. Part of Charge Alleged to State That Plaintiff Was Guilty of Contributory Negligence As a Matter of Law in Not Putting Weight on Her Foot (Paragraph 28 of Motion for New Trial).

 Plaintiff apparently contends that the first paragraph on page 497 contains the alleged objectionable language. *fn80" However, this language does not even mention the word 'negligence.' Furthermore, the trial judge only mentioned the subject of contributory negligence in the charge at the suggestion of counsel for plaintiff *fn81" who said 'I am just trying to avoid any suggestion that you withdrew any issue from the jury * * *. I would rather not give any possible room for argument.' The contention that the language on page 497 was an inaccurate statement of facts will be covered by H below and Exhibit A.

  H. Parts of Charge Concerning Damages (Paragraphs 29 to 34 of Motion for New Trial).

  As pointed out above (II-A), *fn82" any errors in connection with that part of the trial relating to damages were made harmless by the verdict of the jury in favor of the defendant. In accordance with this legal principle, it has been consistently held that any errors in a charge which concern the damages are not ground for reversal where the jury returns a general verdict for defendant or makes a special finding of no liability. See Blanton v. Great Atlantic & Pacific Tea Co., 5 Cir., 1932, 61 F.2d 427, 429; Bryne v. Greene, 1 Cir., 1934, 70 F.2d 137, 139; Dupont v. Gallagher, 1948, 360 Pa. 419, 423, 62 A.2d 28; Goldstein v. Aronson, 1950, 365 Pa. 435, 438, 76 A.2d 217. *fn83" An examination of the subjects of the above paragraphs of the Motion for New Trial indicates that they contain no reversible error, if any error at all. In view of the length of this opinion, a brief comment on these paragraphs will not be included here but will be attached to this Opinion and Order as Exhibit A.

  I. Contention That Charge Was Prejudiced and Prejudicially Inaccurate (Paragraphs 7, 8 and 12-14 of Motion for New Trial).

  This allegation that the trial judge was not impartial in the charge *fn84" is based on the contention that he committed error in the matters covered by Sections A to H of Part III of this Opinion. *fn85" For the reasons given in this Part III, the trial judge does not believe the charge contains reversible error. *fn86"

   The following statements of the appellate courts seem appropriate:

  'Finally, the appellant presses the argument that the charge as a whole is slanted in favor of the plaintiff. This is a matter of judgment. We could hardly expect one who has lost a lawsuit to look at it from the same point of view as the victor.' Robak v. Pennsylvania R. Co., 3 Cir., 1949, 178 F.2d 485, 487.

  'Appellant complains that the court below unduly stressed appellee's testimony. The charge was a correct resume of all the evidence, and we may consider only the record before us. Appellant's misfortune is that the evidence exhibited a much stronger case for defendant than for plaintiff, and, if it created an impression in defendant's favor, it was because the testimony warranted it.' Gallagher v. Hildebrand, 1926, 285 Pa. 350, 352, 132 A. 174.

  A reading of the last three pages of the charge, together with the charge as a whole, indicates to the trial judge that the jury was impartially advised of the issues for their decision. Because of the failure of counsel for plaintiff to submit requests for charge within the time required by the Rules and his failure to furnish any written trial brief, it is not reasonable to object that the trial judge was not more expert in presenting plaintiff's contentions to the jury. The court can find no error in those parts of the defendant's requests for charge which were read to the jury. *fn87"

  Exhibit A to Opinion of March 16, 1956.

  I. Contention that charge erroneously stated that plaintiff did not put weight on her foot and was unreasonable in not doing so (Paragraphs 29, 33 & 34 of Motion for New Trial).

  The record makes clear that from time to time during the time since plaintiff's fall on November 27, 1950, she used casts, braces, crutches, and restrictive bandages, thereby taking weight off her foot. At certain times her failure to place weight on her foot was recommended by doctors, but at other times this was contrary to the advice of certain doctors (see testimony referred to at page 142 of 140 F.Supp. Plaintiff did not testify that she followed the doctors' advice in putting more and more weight on her foot, but that she tried it and could not do it because 'it was hurting.' *fn88" The charge did not say at any point that plaintiff did not have good cause to refuse to put weight on her foot or that she was unreasonable in not putting weight on her foot. This decision was left to the jury under language based on the Restatement of Torts, § 918(1) and Comment (e). *fn89" Cf. Murphy v. American Barge Line Co., 3 Cir., 1948, 169 F.2d 61, 64; Lewis v. Pennsylvania R. Co., D.C.E.D.Pa.1951, 100 F.Supp. 291, 294; Feather-smith v. United States, D.C.E.D.Pa.1952, 104 F.Supp. 226, 229-230. Also, the charge did not state that a person has a duty to suffer pain.

  II. Contention that it was erroneous to say that Dr. Wolcott agreed with the other doctors in believing there was no need for an open reduction operation (Paragraph 30 of Motion for New Trial).

  A reading of Exhibit P-11 *fn90" and consideration of the testimony on this point indicates to the trial judge that, after considering new X-rays, as well as X-rays taken at Jefferson Hospital, Dr. Wolcott did not want to perform an open reduction operation as of 8/21/51, even though he believed the bone was not entirely healed. See N.T. 313-314. *fn91" Even if the trial judge was incorrect, the charge emphasized that the trial judge's memory on this point might be different from that of the jury and that the jury might remember some evidence that the judge had overlooked. *fn92" There is no evidence in the record that plaintiff was unable to produce Dr. Wolcott as a witness, so that any confusion in the record on this point, which was introduced into the case by plaintiff, is her responsibility. Under such circumstances the charge does not contain reversible error in this respect.

  III. Contention that it was error to draw an inference from the fact that plaintiff failed to call Dr. Wolcott and Dr. Lockman (Paragraph 31 of Motion for New Trial).

  On the issue of damages, one of defendant's main contentions was that plaintiff has been physically able to return to work on July 31, 1951. One of plaintiff's contentions was that Dr. Wolcott, of the Women's Medical College Hospital, had believed it was advisable to perform an open reduction operation on plaintiff in August 1951 and, hence, plaintiff could not have been fit for the strenuous work of a track laborer on July 31, 1951. As pointed out above under part II of this Exhibit A, the plaintiff produced the testimony concerning Dr. Wolcott's views on such an operation from the defendant's medical records, but the testimony and Exhibit on this point do not make crystal clear what Dr. Wolcott's ultimate view concerning this operation was. Under these circumstances, Dr. Wolcott was very familiar with a relevant fact, that is the physical condition of plaintiff's left leg and ankle in the summer of 1951, and there was no showing that he was unavailable as a witness.

  Another contention of defendant was that plaintiff's present condition resulted from disuse of her muscles caused by using tight bandages, crutches, a brace, etc., keeping her ankle from getting exercise. During the trial, plaintiff's counsel also brought out by having a witness testify from the medical records of the Philadelphia General Hospital that Dr. Lockman of that hospital had treated plaintiff in 1952 and recommended that she wear a brace. Hence, Dr. Lockman was familiar with plaintiff's physical condition in 1952 and there was no showing that he was unavailable as a witness.

  The applicable rule of law in such cases is that where witnesses familiar with the facts are available and not produced on the stand, the jury is entitled to infer that their testimony would be unfavorable to the cause of the party whose interest it is to establish the facts with which the witnesses are familiar. See United States v. Grannis, 4 Cir., 1949, 172 F.2d 507, certiorari denied 1949, 337 U.S. 918, 69 S. Ct. 1160, 93 L. Ed. 1727; Wigmore on Evidence (3rd Ed.), § 285.

  In view of the above facts, this language of the charge is no more favorable to the defendant than the trial judge was required to give under the above-mentioned rule of law (N.T. 498-499):

  'In this connection, you are entitled to take into consideration plaintiff's failure to produce as a witness Dr. Wolcott, to whom she referred so often during this case, and Dr. Wolcott was never here in court. Dr. Lockman was never here in court, and those were the doctors who treated this plaintiff during this early period when the Reading Company says that they gave her a return-to-work slip, that she was perfectly able to return to work, and their doctors say there was a complete union, and they say that she kept using Ace bandages and other supports which did not put the proper weight on the ankle in order to permit its recovery.'

  In view of the references to these doctors in the arguments of counsel (N.T. 442-444, 466-467, & 472-473), an instruction on this subject was necessary and proper.

  IV. Contention that it was error to point out that Dr. Bonner never saw records of Women's Medical College Hospital (Paragraph 32 of Motion for New Trial).

  Plaintiff's counsel called Dr. Bonner, who testified that he examined her on November 9, 1955, when he made the diagnosis described at page 142 of 140 F.Supp. Also, Dr. Bonner testified that plaintiff was using a crutch and cane, during the period since her fall on 11/27/50, under doctor's orders, even though he had only seen the records of the Philadelphia General Hospital and the Temple University Hospital beginning in January 1952 and had not seen the records of the Women's Medical College Hospital (N.T. 186), where plaintiff was treated until the end of 1951 (N.T. 172 and 174-176). Furthermore, it was as of July 31, 1951, that defendant's doctors believed plaintiff had made a sufficient recovery to resume her job as a track laborer. Under these circumstances, the trial judge felt it was his duty to point out in the charge that Dr. Bonner saw none of the 1951 records when plaintiff was treated at the Women's Medical College Hospital (N.T. 499).

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