Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 87-04763.
Sloviter, Chief Judge, Greenberg and Weis, Circuit Judges.
In this Safety Appliance case we conclude that the district court properly charged that, if its equipment is not defective, a railroad may invoke the defense that railcars did not couple automatically because the couplers were out of alignment. We also determine that although plaintiff's counsel's closing argument went beyond the bounds of legitimate advocacy, that dereliction does not permit defense counsel to respond by referring to objectionable evidence not in the record. Because of the effect of those comments, we will reverse the judgment in favor of defendant and remand for a new trial.
Plaintiff, Charles Reed, was a freight conductor who was injured on May 7, 1986 in the course of his employment with defendant Philadelphia, Bethlehem & New England Railroad. He brought suit under the Federal Safety Appliance Act and the Federal Employers' Liability Act, but withdrew the latter count shortly before trial.
On the day of the accident, Reed and his crew were assigned the task of weighing the train cars. To accomplish this, the workers were to "cut," or uncouple, each car and allow it to pass across an automatic scale on the tracks. The cars were then to reconnect at a point beyond the scale.
Reed uncoupled a boxcar from the rest of the train. He climbed aboard, and rode it down beyond the scale. After he signaled, the crew uncoupled the next car, a scrapcar. The scrapcar passed over the scale, and contacted the boxcar but failed to couple with it on impact.
Reed then went between the two cars and found the knuckles on both couplers closed. He first opened the knuckle on the boxcar, using a lever located on the outer-edge of the car. He attempted the same maneuver on the scrap car, but testified that the lever did not function. He stepped between the two cars to open the knuckle. As he was so engaged, the scrap car lurched forward, amputating part of his foot.
The case was tried to a jury. During closing arguments, plaintiff's counsel made emotional and misleading comments. To counter this, the trial judge permitted defense counsel to tell the jury that plaintiff received disability benefits.
The trial judge submitted the case to the jury on the plaintiff's theory that the railroad was liable on proof that the cars failed to couple automatically on impact and that the cutting lever on the scrap car was defective. The court also instructed the jury to consider the railroad's defense that the cars failed to couple because the couplers were out of alignment and the cutting lever was, in fact, operable.
In response to an interrogatory, the jury found that the railroad had not violated the Safety Appliance Act. Accordingly, the court entered judgment for the railroad. Plaintiff's post-trial motions were denied, and this appeal followed.
This appeal presents two unrelated issues: the application of the Safety Appliance Act and defense counsel's comments to the jury in the closing argument.
FEDERAL SAFETY APPLIANCE ACT