Frank Cereste v. The New York, New Haven and Hartford Railroad Company ( 1956 )

FRANK, Circuit Judge.

1. The evidence sufficed to support a verdict that defendant had been negligent in not providing plaintiff a safe place to work. It was for the jury to determine whether the presence on the path of the coal, on which plaintiff tripped, constituted negligence.¹

2. Defendant, on cross-examination of plaintiff, brought out evidence tending to show that, before trial, he had stated to some of defendant’s representatives that he did not know what caused him to stumble. Defendant offered no written statement signed by plaintiff. Even if we assume that this pre-trial statement flatly contradicted his trial testimony, the jury, of course, could disregard the former and believe the latter.

3. It might be argued that actual or constructive notice to defendant was not necessary since defendant had control of the premises and therefore its conduct was the sole cause of the dangerous condition found by the jury to have existed at the time of the accident.² But we need not consider that argument since the evidence of such notice was ample.

Several of defendant’s employees testified that, in April 1949 and previously, they had seen coal falling on the path between tracks 9 and 10 from coal cars bumping against one another. We think it was not error to receive evidence as to coal thus falling in other parts of the yard or at times other than April 1949, for such evidence was relevant as showing the practice as a result of which coal was likely to be found on the path where the accident occurred. But even if reception of this evidence was error, it could not have been prejudicial in the light of the overwhelming proof that coal had so fallen on that path at the approximate time of the accident. Moreover, constructive notice to defendant was also shown by plaintiff’s testimony that he had seen coal scattered along that path one week before the accident.

Evidence was received that an employees’ Safety-First Committee had notified the defendant in 1947 and 1948 that coal scattered in its yard constituted a menace to the employees working there. Since the accident occurred on April 11, 1949, we do not think that this evidence was too remote. Nor did the defendant object to it on that basis but solely because it was not limited to the area of the accident. However, we think that evidence of the complaints, which referred to the condition of the yard as a whole, was admissible to show that defendant had notice of the condition of the path between tracks 9 and 10, a subject which apparently was included in the Committee’s general complaint.

4. The trial judge admitted evidence of past conduct of the defendant, apparently because it showed a habit of negligence. Thus testimony was admitted, over defendant’s objection, that a substantial number of defendant’s employees assigned to clean-up and construction work had been used solely for construction work in April, 1949 and previously; that only a small force had been left in the Oak Point yard, where the accident occurred, to take care of emergencies; and that clean-up operations did not normally constitute an emergency.

In negligence cases not based on F.E. L.A., most courts have held such evidence inadmissible.³ Wigmore says, “Of course, in all other affairs of life, except in a court-room, one does give weight to what one knows of a person’s careful or negligent character, in judging upon the probable facts.” Noting that the courts, in rejecting such evidence, do so because “there is too much risk” of prejudicing juries, he remarks, “Nevertheless, it seems unreasonable to exclude what may be useful evidence.” ⁴ And he says also, “To evidence a party’s conduct that has led to a personal injury, a habit of certain careful or negligent conduct has probative value.” ⁵ A considerable number of decisions hold such evidence admissible when there were no eyewitnesses to the occurrence.⁶ This exception lacks reason; for, if the evidence is highly prejudicial, it is no less so when eyewitnesses are unavailable.

McCormick, in his recent thoughtful treatise on Evidence (1954), says (Section 162): “Character and habit are close akin. Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. ‘Habit,’ in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation. If we speak of character for care, we think of the person’s tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway-cars while they are moving. The doing of the habitual acts may become semi-automatic. Character may be thought of as the sum of one’s habits though doubtless it is more than this. But unquestionably the uniformity of one’s response to habit is far greater than the consistency with which one’s conduct conforms to character or disposition. Even though character comes in only exceptionally as evidence of an act,. surely any sensible man in investigating whether X did a particular act would be greatly helped in his inquiry by evidence as to whether he was in the habit of doing it. We are shocked, then to read such judicial pronouncements as the following: ‘For the purpose of proving that one has or has not done a particular act, it is not competent to show that he has or has not been in the habit of doing other similar acts.’ But surely, if ‘habit’ is used in the sense we have suggested above, expediency and sound reason would lead to the opposite approach, namely, that evidence that an act was habitually done by X under like circumstances will be received as evidence that it was done by X on the particular occasion. Nevertheless, the judge should possess the discretion usual in this field of circumstantial evidence to exclude if the habit is not sufficiently regular and uniform, or the circumstances sufficiently similar, to outweigh the danger, if any, of prejudice or confusion. The reluctance of some courts to accept this view of the general admissibility of habit to show an act, and the doctrine of other courts that evidence of habit will be received only when there are no eyewitnesses, are probably due to a failure to draw a clear line between character and habit. This is contributed to by the popular custom of describing character in terms of ‘habits,’ such as ‘habits of care’ or ‘habits of intemperance.’ In consequence these courts mistakenly apply to evidence of specific habit, the restrictions developed for the far less probative and more prejudicial evidence of character. On the other hand, evidence of the ‘custom’ of a business organization or establishment, if reasonably regular and uniform is usually received much more willingly by the courts, perhaps because there is here no tempr tation to confuse this with evidence of character. Thus it is usually held that when a letter has been written and signed in the course of business and placed in the regular place for mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed. Proof of the existence of the person’s habit or of the custom of the business, may be made by testimony of a witness, to his. conclusion that there was such a habit or practice. It also may be made by evidence of specific instances, though these later would be subject to the judge’s discretion to require that the instances be not too few or too many, and' that the time be near and the circumstances be sufficiently similar.” See áláo Model Code of Evidence (A.L.I.1942) Rule 307; Uniform Rules of Evidence (1953) Rule 50.

The Supreme Court has • construed' F.E.L.A. in a manner most generous to. employees,⁷ presumably on the theory-that the statute expresses a policy of unusually high regard for their protection. Absent any Supreme Court decision under F.E.L.A. excluding evidence of a habit of negligence, we think we should accept the more rational view; and we therefore hold that the trial judge did not “abuse” his discretion in receiving this evidence. Cf. Brown v. Western Railway of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100 (strict construction of the complaint by a state court, under state rules of practice, in an action under the F.E.L.A. is not binding on the Supreme Court on appeal from a dismissal of the complaint); Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (burden of proof imposed by Pennsylvania law upon one attacking the validity of a written release is not applicable to seaman suing in the Pennsylvania courts under Section 33 of the Merchant Marine Act, 46 U.S.C.A. § 688). The writer of this opinion thinks we need not now decide whether we should apply the same evidence rule in cases not arising under F.E.L.A.

Aside, however, from the question of whether this evidence was admissible as tending to show a habit of negligence, it was relevant to show that clean up operations were not properly performed shortly before the accident. There was ample evidence showing that coal was present on the paths between tracks 9 and 10. There was also testimony in the record that only enough men were left in the Oak Point yard in April, 1949, and prior thereto, to take care of emergencies; and that clean up operations did not normally constitute an emergency. This evidence tended to show that clean up operations were not performed adequately, if at all, at the approximate time of the accident. It was therefore relevant evidence and not too remote. Accordingly, its admission was not error.

5. Defendant made no request for a charge concerning notice. Accordingly, the judge did not err in his charge on that subject (quoted in the footnote),⁸ especially as defendant did not except. Judgment affirmed.

1 . Southern Ry. Co. v. Puckett, 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321; Brown v. Western Ry. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.

2 . See Southern Ry. Co. v. Puckett, 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321; Task v. St. Louis-San Francisco Ry. Co., 335 Mo. 1148, 76 S.W.2d 690. But cf. Baltimore & Ohio Ry. Co. v. Flechtner, 6 Cir., 300 F. 318.

3 . McCormick on Evidence (1954) pp. 325, 342; 1 Wigmore, Evidence (3d ed.) Sections 65, 97.

4 . Wigmore, Evidence, Students’ Textbook (1935) Section 35.

5 . Ibid. Section 43.

6 . See Boone v. Bank of America Nat. Trust & Savings Association, 220 Cal. 93, 29 P.2d 409; Young v. Patrick, 323 Ill. 200, 153 N.E. 623; Toledo St. L. & K. C. Ry. Co. v. Bailey, 145 Ill. 159, 33 N.E. 1089; McCormick on Evidence (1954) p. 342.

7 . Cahill v. New York N. H. & H. R. Co., 2 Cir., 224 F.2d 637, reversed 350 U.S. 898, 75 S.Ct. 180; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Jesionowski v. Boston & Maine R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416; Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Lillie v. Thompson, 332 U.S. 459, 68 S.Ct, 140, 92 L.Ed. 73; Johnson v. United States; ' 333 U.S. 46, 68 S.Ct. 39Í, 92 L.Ed. 468; Wilkerson-v. McCarthy, 336 U;S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Affolder v. New York, C. & St. L. R. Co;, 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683; Stone v. New York, C. & St. L. R. Co., 344 U.S. 407, 73 S.Ct, 358, 97 L,Ed. 441; Smalls v. Atíantie Coast Line R: Co., 348'U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740; see also Ruddy v. New York Central R. Co., 2 Cir., 224 F.2d 96, 98; Korte v. New York, N. H. & H. R. Co., 2 Cir., 191 F.2d 86, 88; Louisville & N. R. Co. v. Bolts, 8 Cir., 173 F.2d 164, 166.

8 . “Defendant’s position is that it had no notice, real or constructive, of the presence of coal on the path, or, more particularly, the piece of coal upon which the .plaintiff claims to have slipped.

“Defendant also argues that there is no proof, other than the testimony of the plaintiff, as to how long such coal or piece of coal was present, and that, accordingly, it cannot be held responsible since there was nothing that it did or could have done to prevent this accident. Tt also offered testimony that there was in -fact no coal at the place where plaintiff was lying after the accident.”