Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
This is an appeal from a judgment for the defendant in a suit brought by the plaintiff as Executrix of the estate of her deceased husband. Claims are made both under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 and the Boiler Inspection Act, 45 U.S.C.A. § 23.
The case was tried twice. At the first trial plaintiff recovered a verdict of $30,000. The district court, however, ordered a new trial. At this trial the court directed a verdict on the F.E.L.A. claim and the jury found against the plaintiff on the claim made under the Boiler Inspection Act. The plaintiff would have us restore the verdict originally rendered in her favor. If unsuccessful in this demand she asks for a new trial because of alleged mistakes in the course of the one which she lost.
We shall not restore the first verdict. The trial judge had three points in mind when he set it aside and ordered a new trial. One had to do with the question whether there could be recovery on behalf of a minor child who lived with the plaintiff and her husband and who, it was claimed, was supported by them. The claim of the child dropped out before the case was submitted to the jury but conceivably there could have been an atmosphere of sympathetic emotion engendered by the introduction of the child's needs into the case.
There was also a question of surprise in the claim made under the Boiler Inspection Act. It is true that such a claim was mentioned in the original pleadings. But the court and defendant's counsel were assured that the plaintiff's reliance was on the Federal Employers' Liability Act. It was only after testimony developed during the trial that plaintiff's counsel determined to press a claim for liability based on that statute.
A third ground was the trial court's belief that he had mistakenly admitted testimony which, on further consideration, he believed to be inadmissible. The problem presented by this testimony will constitute the main part of this opinion and will be postponed until later.
The authority of the trial judge to grant a new trial is expressly recognized by rule 59, Fed.R.Civ.P., 28 U.S.C.A., which in turn refers back to "any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States * * *." 6 Moore, Federal Practice P59.05, p. 3759 (2d ed. 1953), discussing rule 59 says: "As the motion for new trial is addressed to the sound discretion of the trial court, its grant or denial of the motion is not normally subject to reversal in an appellate court * * *." See, to the same effect, 3 Barron & Holtzoff, Federal Practice and Procedure § 1302 (Rules ed. 1950). If any one of the three grounds which the learned trial judge had in mind is sufficient to justify his order for a new trial, the order must stand. There was adequate support for the exercise of his discretion in this case.
We turn, then, to the problems presented at the second trial. So far as the claim based on the Boiler Inspection Act is concerned the jury's verdict settles that unfavorably to the plaintiff and we shall not disturb the verdict. The appellant makes complaint about the judge's charge not adequately covering the peril to "health" as well as "life or limb" in discussing the basis of recovery against a defendant. But the plaintiff's complaint here is not borne out by the record. We think the jury had the claim based upon alleged violation of the duty imposed by this statute correctly put to it and its verdict settles the matter.
We turn, then, to the question which is the heart of the case. That is the question of evidence sought to be introduced by the plaintiff of a telephone call made by her husband on the day in which it is alleged that his fatal exposure to inclement weather took place. Likewise, we must face the admissibility of certain statements put in writing by employees of the defendant. These items were excluded by the trial judge on the second trial and the result of the exclusion was to denude the plaintiff's case of proof of liability.
If the plaintiff in this case can prove that management forced a sick employee, of whose illness they knew or should have known, into work for which he was unfitted because of his condition, a case is made out for the jury under the Federal Employers' Liability Act. As to this general proposition we think there is no dispute.*fn1
There are two pieces of evidence which the plaintiff sought to introduce as part of such a case. One had to do with statements made by two employees in the yard where Nuttall reported for duty on the day in question. Since these proffers of testimony are, along with the conversations to be discussed later, the heart of this appeal we set them out verbatim.
"Statement relative to personal injury sustained by Clarence O. Nuttall at Wilmington, Del. on January 5, 1952.
"I am John O'Hara reside at 234 N. Franklin St., Wilmington, Del. Employed by Reading Co. as Fireman & am a qualified Engineman. On 1/5/52 I was Fireman on the 7:00 A.M. Wilmington Yard Shifter, had OE50. Clarence Nuttall was Engineman.
"When I reported for duty 7:00 AM 1/5/52 & checked engine, etc. I noticed Nuttall did not look well. I asked him what was the matter. He just said he wasn't feeling too good. He was coughing and couldn't seem to get his breath. Nuttall told me that he had called the yard office about 6:00 am and asked to be relieved and he was told that he couldn't be as there were no men available to take his place. Nuttall operated engine for approximately an hour then as he did not seem at all well I asked him to allow me to run & he agreed. He then stayed on Fireman's side for rest of tour of duty. He sort of propped himself on the Fireman's seat but he kept perspiring & coughing. He seemed to have trouble getting his breath after a coughing spell & seemed weak. I suggested to him that he ought to go home but he refused saying the yardmaster told him there was no one available for his relief. He continued on the job but his condition got worse. Approximately 1 pm he went to yard office & reported off until further notice. When he got off engine at end of tour of duty he was very weak & I offered to take him home. I helped him over to his auto but he refused to let me drive him home. He got in his auto & drove away himself.
"I worked with Engineman Nuttall for several days prior to Jan. 5, 1952 & he seemed well except that on Jan. 4, 1952 ...