Floyd W. Freed, III v. The Erie Lackawanna Railway Company ( 1971 )

BROOKS, Circuit Judge.

Plaintiff-appellant, Floyd W. Freed, III, brought this action under the Federal Employers’ Liability Act against defendant-appellee, Erie Lackawanna Railway Company, for personal injuries sustained when he was struck by a train. This appeal follows a jury verdict for the defendant.

At the time plaintiff was injured, he was the head brakeman on a freight train running from Cleveland to Youngstown, Ohio. The accident occurred in the North Randall switching area where there were numerous sets of tracks and switching operations were frequent. The plaintiff and the fireman, a fellow crewman, had just dropped off their train and had started walking down a right-of-way adjacent to a side track on their way to lunch when plaintiff was struck by a caboose, which was the lead car of a switching train that was slowly backing in performance of its switching assignment. Seconds before getting in the path of the train, plaintiff’s attention was diverted when the fireman turned and called to the engineer of the freight train to throw him his cigarettes which he had forgotten and left in the cab of the locomotive.

The principal issue raised by plaintiff on appeal is whether an answer made by the defendant to an interrogatory is binding on it although contradicted by other evidence adduced by the defendant. In response to one of plaintiff’s interrogatories, defendant stated that the location of the switch train at the time of the accident was not within the yard limits. A train that is not within yard limits was subject to road rule Number 103 which requires cars being pushed by engines in an area outside the yard limits to have a lookout posted on the lead car. There was no such lookout on the car of the switch train that injured the plaintiff. At trial the defendant produced testimony that the switch train was actually operating within the yard limits and, therefore, no lookout on the lead car was required, thus contradicting the answer given in the interrogatory as to the location of the train at the time of the accident.

While the jury was deliberating, the jury foreman submitted a question to the court asking if the switch train was within the yard limits at the time of the accident. The court declined to answer the question on the grounds that it involved a question of fact which it was the duty of the jury to resolve. Plaintiff argues that the answer to the interrogatory, when introduced in evidence, was an admission against interest and binding on the defendant, and therefore the court should have answered the jury’s question in accordance with the answer given in the interrogatory. In support of this argument, reliance is placed on Gridiron Steel Company v. Jones & Laughlin Steel Corporation, 361 F.2d 791 (6th Cir. 1966). Such reliance is misplaced. While the cited case is authority for the rule that answers to interrogatories when introduced in evidence may be utilized as admissions, it does not hold that such admissions are binding. And see, Victory Carriers, Inc. v. Stockton Stevedoring Company, 388 F.2d 955 (9th Cir. 1968) ; Heilig v. Studebaker Corporation, 347 F.2d 686 (10th Cir. 1965); Gadaleta v. Nederlandsch-Amerekaansche Stoomvart, 291 F.2d 212, 213 (2nd Cir. 1961). As stated in Victory Carriers, Inc. v. Stockton Stevedoring Company, supra:

“An answer to an interrogatory is comparable to answers, which may be mistaken, given in deposition testimony or during the course of the trial itself. Answers to interrogatories must often be supplied before investigation is completed and can rest only upon knowledge which is available at the time. When there is conflict between answers supplied in response to interrogatories and answers obtained through other questioning, either in deposition or trial, the finder of fact must weigh all of the answers and resolve the conflict.”

The court properly declined to answer the question dealing with the location of the switch train at the time of the accident.

Plaintiff also contends that there was no substantial evidence to support the verdict and claims he was denied a fair and impartial trial because the jury did not represent a fair cross-section of the community. The District Court, in overruling plaintiff’s motion for a new trial, found these issues to be without merit and we agree.

Affirmed.