Freida Mandel and Sam Mandel v. Pennsylvania Railroad Company , 291 F.2d 433 ( 1961 )

On Petition for Rehearing.

PER CURIAM.

Our original opinion filed May 23, 1961 was based on a belief that the trial judge had effectively removed from consideration by the jury any claim of injury due to extraordinary swaying of the train by the excerpt from the charge therein quoted. But this position, we must in candor admit, is untenable in view of the later instructions which the appellant now stresses. Thus the jury was instructed that if it found the passageway of the car unsafe because of slush or lack of light “or if you find that the train was moving along in such a negligent and careless manner that there was an extraordinary jerking or jolting or swaying, and again, I say only if there is such evidence of this, and I leave it to the jury’s best recollection to determine that * * That the emphasis just indicated is ours — and not necessarily that of the judge below — cannot disguise the fact that the jury was given to understand that it lay within their power to find extraordinary swaying. Especially is this so in view of an instruction given in the course of the exceptions to the charge that “if you find that there was an extraordinary swerving * * * then obviously no knowledge of such an act [on the part of the. railroad] must be shown * * * ” And the appellant is right in its assertion that there was no evidence whatsoever of extraordinary swaying.

It follows that an issue was submitted to the jury on which there was no evidence. This was reversible error, as is attested by myriad cases, e. g., Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 78-79, 27 S.Ct. 412, 51 L.Ed. 708; Erie Railroad Co. v. Gallagher, 2 Cir., 255 F. 814; Schilling v. Delaware & Hudson R. Corp., 2 Cir., 114 F.2d 69; Thompson v. Peterson, 152 App.Div. 667 137 N.Y.S. 635.

Since now persuaded that there must be a new trial a word or two is in order on other claims of error originally pressed which otherwise may reoccur. We agree that it was improper to allow the plaintiff-husband to testify to complaints made by his wife, Raymond & Whitcomb Co. v. Ebsary, 2 Cir., 9 F.2d 889, and to question witnesses (railroad employees) as to complaints as to the condition of the car made by a third person (Barron) who never testified. Cf. Syracuse Broadcasting Corp. v. Newhouse, 2 Cir., 236 F.2d 522. The questions cannot be justified as proper cross-examination: the witnesses denied having received complaints from Barron and his statement, which was marked Exhibit Q for identification, failed to show that he did indeed complain to the witnesses. Merely because we thought these errors in the context of the first trial were harmless, it does not follow that they should be repeated in a second trial.

Reversed and remanded.