killed was entitled to do the unloading and was in the exercise of proper care for his own safety * * *.'
It should have been obvious to any consignor exercising reasonable care in loading the boxcar in the present case that there would be danger to the employees of the consignee because of the shape and weight of the crates in which the lockers were placed. Standing on end on a base 36 1/4' by 6 1/2' and almost 7 1/2 feet high and weighing 278 pounds they would have no support in the direction in which men would be working after part of the cargo had been removed. It should have been obvious to a consignor exercising reasonable care toward the men who were to unload the cargo that one of these heavy crates might fall and injure a person unloading the cargo when he was not looking. The consignor, exercising reasonable care, could have and should have done something about this danger. According to the testimony of plaintiff's expert witness, the crates at the end of the car could have and should have been secured in place by the consignor to protect employees of the consignee by driving nails on an angle through the edge of each crate and into the wall of the boxcar. Also the unloading could have been made safe by banding together the sixteen crates at the end of the car in a fashion described as 'snaking' which involved the interwinding of metal banding around each crate, the binding being stapled alternately to the outside edge of the crate and to the rear wall of the boxcar.
The defendant has admitted that on the day it loaded the boxcar and for a year previously its employees 'used blocking, bracing, and/or stripping to secure shipments of equipment identical or similar to the metal lockers involved in the accident.' It is further admitted that defendant 'had readily available the equipment and personnel necessary for bracing, stripping and/or blocking of the sixteen lockers * * *' at the time of the loading of this boxcar.
Clearly the defendant was negligent in the way it loaded the boxcar in respect to its duty to exercise reasonable care to protect employees of the consignee from possible injury when they were in the act of unloading the cargo. This negligence was a proximate cause of plaintiff's injuries. There was danger from possible falling crates as they stood on end in the boxcar, but this danger did not make plaintiff guilty of contributory negligence when he turned his back to push a crate on the rollers. The danger was not so obvious that it imposed a legal duty on plaintiff to expect it and watch for it at all times.
In addition to the contentions on these post-trial motions that there was no breach of duty by the government and that plaintiff was guilty of contributory negligence, a number of objections have been raised against the introduction of certain testimony at the trial. Over objection, the court allowed plaintiff's expert witness to express an opinion to the effect that the loading pattern utilized by the government was not a safe one; the court likewise allowed plaintiff's doctor to express an opinion as to the causal relationship between the various illnesses suffered by plaintiff subsequent to this accident. The government contends that it was error to permit these experts to express an opinion on questions of ultimate fact. Since one of the important issues before the trial judge was whether or not the freight car was loaded properly and in a safe manner, the testimony of the expert on loading was relevant and admissible to help the finder of fact to decide this question. Since another issue was the amount of the damages, the testimony of the medical expert was relevant to help the finder of fact to determine how much of the injury was due to the accident, especially in making a finding of fact on the question whether later operations were caused by the accident rather than by improper medical care at the time of the first hospitalization.
The government also questions the admissibility over objection of the testimony of plaintiff's doctor that plaintiff told him that he was 'injured by * * * boxes * * * that had fallen on top of him from behind * * * which threw him to the ground * * * after which he had pain in his right hip.'
This statement was part of the medical history of the patient and was medically germane. Moreover, there was ample testimony elsewhere in the record to sustain the finding that plaintiff was struck from behind by a falling crate. The admission of this testimony was not prejudicial error.
Finally, it should be noted that all these objections to the introduction of testimony were made in a paper intitled 'Government's Supplemental Motion for a New Trial', which was filed on January 28, 1964, over three and one-half months after the entry of judgment in this case, more than three months after the court's findings were filed and more than two months after the transcript of testimony had been filed. These objections are not timely. Fed.R.Civ.P. 59(b); 6(b).
And now, this 26th day of May, 1964, the court makes the following order: (1) The motion of the United States of America to amend the judgment of the court is denied; (2) The motions of the United States of America for a new trial are denied; (3) The motions of the United States of America for the amendment of the Conclusions of Law filed by the court are denied; (4) The motions of the United States of America to amend the court's findings of fact Paragraph Numbers 7, 8, 9, 11, 16, 17, 18, 19, 20 and 26 are denied; (5) The court's finding of fact Paragraph Number 21 is stricken; (6) The court's finding of fact Paragraph 10 is amended to read: 'Plaintiff was employed generally as a crane operator but he helped in the work of unloading boxcars once or twice a week.'
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