Karen E. McGrath Administratrix Ad Prosequendum of the Estate of Donald v. McGrath Deceased v. Erie Lackawanna Railroad Company ( 1972 )

OPINION OF THE COURT

STALEY, Circuit Judge.

This case comes to us upon the appeal by defendant below, Erie Lackawanna Railroad Company (“Erie”), from a judgment in the amount of $340,000 in favor of plaintiff-appellee. The action was brought by plaintiff as administratrix of her husband’s estate for wrongful death alleged to have been caused by Erie’s negligence.

The decedent, Donald V. McGrath, was killed on February 17, 1966, when he was struck by one of Erie’s trains after alighting from a coach on another Erie train. He lived in New Jersey and had begun commuting between New York and Erie’s Glen Rock Station. He had not taken the train to or from Glen Rock previous to February 14, 1966, three days prior to his death.

On the evening of February 17, 1966, Erie Train No. 1177, consisting of a diesel and two coaches out of Hoboken, arrived at the Glen Rock Station. At this station there are two sets of tracks, running east and west. Erie No. 1177 was traveling on the west-bound track. On arriving at Glen Rock, the engineer went beyond the station platform so that the first coach was stopped with its front end exits giving on to a paved road adjacent to the western end of the station.

The decedent had been riding in the first coach. Apparently, all passengers exited the coach from the front or rear right staircases, except for the decedent who alighted from the head of the coach on the left. After the train had stopped, an Erie freight train passed going towards Hoboken on the other set of tracks. Just before this train went by, a passenger sitting by the window on the left side of the first coach saw a man outside and then saw him struck by the oncoming locomotive. Decedent’s body was found between the tracks in front of the rear wheels of the first coach on Erie No. 1177.

On this appeal, Erie contends that the district court erred in admitting into evidence a photograph of decedent’s young son; that the district court erred in denying Erie’s motion for dismissal on the grounds that there was no evidence to support a verdict of liability; that the district court erred in its instructions to the jury with regard to a railroad’s statutory duty as to audible signals; and that the verdict as to damages was excessive and based in large part upon evidence of a speculative nature improperly admitted by the district court.

A photograph of decedent’s son, taken a year and one-half prior to the trial when he was 4% years old, was admitted into evidence over "Erie’s objection. Erie contends that the admission of the photograph constitutes reversible error because it had no probative value and was intended solely to arouse the emotions and sympathy of the jury. Appellee argues that the photograph was relevant evidence and that since the child could have been personally present in the courtroom throughout the trial but was not, the admission of his photograph did not result in a denial of substantial justice to Erie within the purview of Rule 61 of the Rules of Civil Procedure.

With regard to relevance, appellee argues that under the New Jersey death action statute,¹ a material fact at issue in the calculation of damages is the matter of dependency and further, that in the case of surviving infants, a recoverable item is the value of the loss to the infant of the care, nurture and education which he otherwise would have obtained from the deceased parent. Appellee contends that the child’s appearance was relevant to the jury’s determination of the period of dependency and other factors bearing upon the amount of pecuniary loss.²

The admission into evidence of a photograph is largely within the discretion of the trial judge. Barney v. Staten Island Rapid Transit Rwy. Co., 316 F.2d 38 (C.A.3), cert. denied, 375 U.S. 826, 84 S.Ct. 67, 11 L.Ed.2d 58 (1963). While its relevance was concededly somewhat remote, we cannot say that the admission of the child’s photograph into evidence in the instant case constituted an abuse of that discretion.³

Erie next asserts that there was insufficient evidence adduced as to its liability for decedent’s death to have been submitted to the jury or to support a verdict of liability. Erie’s argument begins with an analysis of the plaintiff’s case which it reduces to two separate theories of liability. The first and main theory is that Erie violated its duty to provide its passenger with a safe place to alight based on the contention that it extended an implied invitation to alight from the left into an area made dangerous by virtue of the train having overshot the station. A second theory is based on the failure of the second train to make audible signals as required by statute.

With regard to the theory of implied invitation, Erie argues that the crucial question was whether or not the passage bar on the left side of the vestibule⁴ was, in fact, open prior to the time decedent alighted, thereby extending an implied invitation to alight into the dangerous area. Erie’s conductor testified that he had placed the bar across the left exit on leaving the station two stops prior to Glen Rock and did not check its position again. Erie asserts that there was a presumption that the bar was down when the train arrived at Glen Rock and that plaintiff had the duty to rebut the presumption and adduce evidence that the passage bar was open to the decedent. After a review of the relevant testimony on this point, Erie concludes that there was no evidence from which the jury could have properly inferred that the passage bar was open.

After an examination of the record, we are of the view that Erie’s argument on this issue has oversimplified the plaintiff’s case. We do not agree that the evidence adduced was insufficient to create jury issues with regard to Erie’s liability. There was ample evidence to sustain findings that the train had overrun the station platform with the first coach having come to rest across a public road, that no warnings had been given with regard to alighting from the left exit, that passengers had exited from the left on prior occasions,⁵ that reasonable precautions were not taken to assure that the left passage bar was closed upon arrival in Glen Rock, and that Erie’s second train, an unscheduled freight, ran through the station on the opposite track without warning. It was, therefore, not error on the part of the district court to allow the case to go to the jury.

With regard to the freight train’s alleged failure to sound its bell or horn, Erie argues that the only evidence adduced by plaintiff was negative evidence and therefore entitled to no weight. Erie contends that the rule with regard to such evidence is that a witness who testifies that he did not hear such signals must be shown to have been in a position to hear, and his attention must have been directed to the signals. See, e. g., Ackerley v. Pennsylvania R. R. Co., 130 N.J.L. 292, 32 A.2d 449 (1943). Erie then discusses each witness who testified that no signals were heard and indicates how that testimony is invalidated by the evidentiary rule. We deem it unnecessary to set forth in detail the testimony of each such witness. Each was in a position to hear the bell or horn, and since each testified that he heard nothing, a jury issue was presented.⁶ Further, we find no error in the district court’s instructions on the statutory duty to give audible warnings.

Finally, Erie contends that the verdict as to damages was in substantial part the result of mistake, partiality or prejudice. The basis for this argument is that testimony was allowed, over objection, that the decedent would have been promoted to a higher salaried job. An expert witness projected the decedent’s life earnings based upon the higher salaried position and discounted the total amount at 4%. Erie contends that the promotion was speculative and that the expert’s use of the higher salary figures tended to dignify as fact matters which were in controversy. In addition, Erie argues that the expert failed to establish that 4% was the proper and accepted discount rate according to accepted standards.

The testimony as to the promotion came from a partner in the accounting firm which had employed the decedent. The decedent was a candidate for Senior Accountant in 1966, the year of his death. The witness was permitted to testify that he would have been the partner to make the decision on the promotion and that it was a “100% certainty” that in June of 1966 the decedent would have been promoted. He was also permitted to testify as to the salary of a Senior Accountant. The expert called by plaintiff to testify as to the calculations of pecuniary loss utilized the rate of 4% to reduce the future earnings to present value. He also testified as to what the final figure would be using the rate of 6%.

We do not view the testimony as to the promotion to have been overly speculative. The promotion would have come within four months of his death, and the witness who would have made the decision was adamant that the decedent would have received the promotion. Under New Jersey law, in determining damages in a death action, all reasonable expectations bearing upon pecuniary injury should be taken into account, and the jury must weigh the probabilities. McStay v. Przychocki, 7 N.J. 456, 81 A.2d 761 (1951); Kern v. Kogan, 93 N.J.Super. 459, 226 A.2d 186 (1967).

Further, we cannot say that the use of a 4% rate is incorrect as a matter of law, especially in light of the fact that figures were presented to the jury using a higher rate as well.

We have carefully considered each of appellant’s arguments and find them to be without merit. The judgment of the district court will be affirmed.

1 . N.J.S.A. 2A:31-4 and 31-5.

2 . The contention is made that if a child appeared to be healthy, the jury could reasonably infer that he would live at least until maturity and remain dependent for tlie entire period, whereas if tlie child appeared sickly or was obviously stricken by an illness or disease, the jury might project a truncated period of dependency.

3 . Since the child could have been present throughout the trial, any error which could arguably have been committed by admitting the photograph was harmless error within the spirit and intent of 28 F.S.C. § 2111.

4 . The coach in which decedent was riding was a standard coach with a door at each end between the coach area and a vestibule with exits to both sides of the coach. There are four steps down on each side of the vestibule. At the top of the stairs leading to each exit is a passage bar which can be put down across the staircase to bar exits. The conductor is to put the bar down to prevent exit on the side opposite the station platform in both the front and rear vestibule of each coach.

5 . The brief filed by Erie attacks the testimony on this point. In one respect Erie’s objection has been corrected by a court reporter’s subsequently discovered mistake. Our examination of the record discloses that Erie’s objections to the other testimony on this point is based solely on its own inference and that the testimony is equally capable of supporting an inference favorable to the plaintiff.

6 . This is the actual rule announced by the case upon which Erie relies, Ackerley v. Pennsylvania R. R. Co., 130 N.J.L. 292, 32 A.2d 449 (1943). There is also authority for a rule that where the railroad itself creates a situation wherein the audible signals are unlikely to be heard, then it has a further duty to take steps to protect those who might not hear them. See Pangborn v. Central R. R. Co. of New Jersey, 18 N.J. 84, 112 A.2d 705 (1955).