'Now, nobody wants you to give up a conscientiously held opinion, but, on the other hand, this case does not seem to me to be one of extreme difficulty. I mean, it would not be submitted to you if you could not decide it one way or the other.'
At the very end of the supplemental charge, the trial judge used this language (N.T. 197):
'Now, I urge you to please go out again and discuss this matter and see if you cannot come to a decision. If you cannot, I do not want anybody to give up a conscientiously held view.'
This language was proper under the decision of Allen v. United States, 1896, 164 U.S. 492, 501-502, 17 S. Ct. 154, 41 L. Ed. 528, most recently referred to with approval in United States v. Curcio, 2 Cir., 1960, 279 F.2d 681, 682. See, also, Lehigh Valley R. Co. v. Allied Machinery Co., 2 Cir., 1921, 271 F. 900, 904; Railway Express Agency v. Mackay, 8 Cir., 1950, 181 F.2d 257, 262, 19 A.L.R.2d 1248.
2. References to the photographs.
Defendant complains that too much emphasis was placed on the photographs in the supplemental charge. However, the supplemental charge also told the jury to 'consider it all -- consider everything' (N.T. 196). Also, the supplemental charge did not purport to be a repetition of the entire charge and it must be read in connection with the basic charge. See Luterman v. City of Philadelphia, 1959, 396 Pa. 301, 152 A.2d 464; cf. Burch v. Reading Co., D.C.E.D.Pa.1956, 140 F.Supp. 136, 149, affirmed 3 Cir., 1957, 240 F.2d 574, certiorari denied 1957, 353 U.S. 965, 77 S. Ct. 1049, 1 L. Ed. 2d 914.
Even if the trial judge had told the jury that, in his personal opinion, the pictures were the most important evidence, this would have been proper if the decision of the facts had been clearly left to the jury.
The federal courts have consistently held that a trial judge is entitled to give his personal opinion of, and comment on, the evidence even in a criminal case as long as he leaves the ultimate determination of the facts to the jury. See United States v. Kravitz, 3 Cir., 281 F.2d 581. Both the charge and the supplemental charge emphasized to the jury that it was for them to determine the facts, as follows:
A. At N.T. 172, the jury was told that it was its function to determine facts.
B. They were repeatedly told that they should disregard the judge's memory of the testimony if it did not coincide with their memory.
C. This language appears at N.T. 181:
'* * * you have got to determine what the facts are -- that is your very difficult job -- and then apply them to this law as I have read it to you.
'I think that you know that you must consider all the circumstances in determining whether there is negligence, all the surrounding factors; you must look at the pictures; you must remember the testimony as best you can.'
D. The last statement made to the jury before it retired was this language (N.T. 193-4):
'Also, I just want to, of course, warn you again that anything that I say as to the facts is to be controlled by your finding and not by any statement of my memory unless it accords with your memory and your findings. In other words, when I say that if Mr. Alston stopped in a certain position, then, as I remember the evidence -- and you accept all his testimony -- you would find Mr. London negligent, that is just my memory of it. That is no instruction on your part, because your memory of Alston's testimony may be quite different from mine. It is for you to determine what are the facts and apply them to the law as I gave it to you.'
E. At N.T. 196 of the supplemental charge, the trial judge told the jury 'Consider everything. You have got to make up your mind as to who was telling the truth. * * * Now, what is the fact? What do the pictures show? These are the sort of things that it seems to me you ladies and gentlemen have to consider and in your own good judgment determine.'
A careful consideration of the record establishes that refusal to grant a new trial is not 'inconsistent with substantial justice.' See F.R.Civ.P. 61, 28 U.S.C.
An order will be entered dismissing the post-trial motions of the third-party defendant.