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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. ยง 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 ...

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