Niles W. Black v. Penn Central Company , 507 F.2d 269 ( 1974 )

WEICE, Circuit Judge.

This appeal is from a judgment entered upon a jury verdict for defendant in an action for damages for personal injuries, which action was brought in the District Court under the Federal Safety Appliance Act, 45 U.S.C. §§ 1 et seq., and the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 et seq.

Plaintiff-appellant Black was a brakeman employed by Penn Central Transportation Company at the Republic Steel Corporation’s plant in Canton, Ohio. His duties included, among other things, the coupling and uncoupling of freight cars. At the time of his injury he was engaged in the movement of freight ears inside a building of the Steel Company. Some of the cars were empty and some were loaded. One of the empty cars had a defective hand brake. Black was injured when the train started to back up, and he was pinned between the empty car and the cement wall of the building.

The conductor of the train testified that Black gave the signal to back the train, and that he acted pursuant to the signal. Black denied giving any such signal. In any event, it was the movement of the train, and not any defective brake, which caused Black’s injury. The defective brake on the car had not been applied, and it had nothing whatsoever to do with causing the accident.

It was plaintiff’s theory that if the brake on the empty car had not been defective, the car could have been “spotted” outside the building on an incline, and that the accident inside the building would not have occurred.

The District Court declined to submit to the jury the alleged Safety Appliance Act violation, ruling, as a matter of law, that there was no causal connection whatever between the defective brake and Black’s injury.

In Carter v. Atlanta & St. Andrews Bay Ry., 338 U.S. 430, 435, 70 S.Ct. 226, 229, 94 L.Ed. 236, the Supreme Court stated:

We made clear in Coray v. Southern Pacific Co., supra, 335 U.S. [520] at 523, 69 S.Ct. [275] at page 277, [93 L.Ed. 208] that if the jury determines that the defendant’s breach is “a contributory proximate cause” of injury, it may find for the plaintiff. See also Union Pacific R. Co. v. Hadley, 246 U.S. 330, 333, [38 S.Ct. 318, 319, 62 L.Ed. 751] (1918); Spokane & I. E. R. Co. v. Campbell, 241 U.S. 497, 510, [36 S.Ct. 683, 689, 60 L.Ed. 1125] (1916).

In our opinion there was not the slightest evidence that the defective brake was a contributory proximate cause of Black’s injury.

The present case really involved only the liability of the railroad under F.E. L.A. for negligence of Black’s fellow-employees and for failure to provide Black with a safe place to work. ■

In order to recover under the F. E.L.A. it was necessary for Black to prove that the railroad was negligent and that such negligence caused his injury, either in whole or in part. Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Bridger v. Union Ry., 355 F.2d 382, 386 (6th Cir. 1966).

The F.E.L.A. issues were fairly submitted to the jury, which found no liability. In our opinion the verdict was supported by substantial evidence. Black does not even claim that the Court erred in its instructions to the jury.

Black further contends that it was prejudicial error for defendant’s counsel to ask him, on cross-examination, whether he was the plaintiff in a suit filed in the Common Pleas Court of Stark County, Ohio, against the Republic Steel Corporation, arising out of the same accident. His answer was, “Yes.” Plaintiff’s counsel objected after the answer, and the Court overruled the objection. Plaintiff’s counsel did not move to strike the answer, and did not move for any instruction on the subject. He did establish, however, by questioning plaintiff, that plaintiff had not received any money from Republic Steel.

The theory of defendant’s question was to obtain an admission against interest in the course of another judicial proceeding to the effect that plaintiff was claiming that another corporation caused his injury, at least in part. 21 Ohio Jur.2d, Evidence, § 347 pp. 355, 356.

The District Court had wide latitude and discretion in determining the scope of cross-examination. United States v. Marchesani, 457 F.2d 1291 (6th Cir. 1972). We find no abuse of discretion on the part of the trial judge. Furthermore, in view of the overwhelming evidence in this case which supports the jury’s verdict, we find no prejudice to the plaintiff.

The judgment of the District Court is affirmed.