Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
Was reversible error committed by the trial judge when, without notice to counsel or their knowledge, in response to an inquiry from the jury while they were considering their verdict in the jury room, he sent the jury supplementary oral instructions?
That is the primary question presented on this appeal from the judgment of the United States District Court for the Eastern District of Pennsylvania in an action under the Federal Employers' Liability Act.*fn1
The facts may be summarized as follows:
On September 1, 1953, while working with a crew of men for the defendant Lehigh Valley Railroad at Rockdale, Pennsylvania, plaintiff was injured. The crew was engaged in track raising, an operation which consisted of dumping stone ballast on the roadbed after which jacks were used to raise the tracks with the ties still attached.
Plaintiff's job was to "Knock-off" rail anchors with a sledge hammer. A rail anchor is a three-pound device designed to stabilize the rails. It is "J" shaped and curved to bear on the outside top of the base of the rail and along the entire bottom of the rail base. The inner part of the anchor is attached by a short notch over the flange of the rail so that the force of a hammer, applied in a downward direction to strike the top of the inner part, releases the anchor.
At the time of the accident plaintiff was straddled over the rail with his right foot inside it and his left foot on the outside on top of the curved portion of the anchor. Plaintiff knocked a rail anchor off by following the normal procedure. The anchor flew out, struck a stone which flew into the air and struck his eye glasses resulting in injury to his eye.
Plaintiff testified that sometime in 1951 while he was pick-hammer tamping, a stone came up and hit him in the face, and as a result of that incident he requested goggles of the foreman while on the anchor removing job in 1951 and was told that none was available.
The trial judge, following submission of the case to the jury and their retirement to the jury room for deliberation, proceeded to hear another case. While the latter was in progress the jury sent the trial judge a written inquiry as to whether plaintiff was receiving workmen's compensation. The trial judge, without notice to counsel or their knowledge, orally instructed the marshal to advise the jury that the answer to their question was in the negative.
The jury later returned the following verdict:
"Well we the jury unanimously agree that the defendant nor plaintiff is guilty of negligence. The jury also awards the sum of $5,000 and a life job at a guaranteed yearly wage to the plaintiff, Mr. George Snyder."
In response to an inquiry from the trial judge as to the verdict, the forelady of the jury stated that "we just decided it was a freak accident." At the request of counsel for the plaintiff, the jury was polled on the question, "do you find the defendant negligent?" Each juror answered this question in the negative. The trial judge thereupon entered judgment for the defendant.
Plaintiff's motion for a new trial was denied, and in a memorandum opinion the trial judge stated that a verdict should have ...