Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.
Arthur Clark, employed by the Pennsylvania Railroad Company as a buffet lounge attendant, appeals from a judgment entered on a jury verdict for defendant in an action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. The claim by appellant is that he was denied a fair trial because Judge Rosling: (1) refused to grant a certain request for instructions on the subject of assumption of risk; (2) was not sufficiently explicit in his instructions relative to proximate cause; (3) received in evidence over objection a certain map as an exhibit without eliminating certain marks indicating street lights; and (4) permitted the Railroad over appellant's objection to introduce the testimony of two witnesses whose names were not included in the list of prospective witnesses alleged to be required by the Rules of the District Court for the Eastern District of New York to be filed as part of the pre-trial procedure of that Court. We find no error and we affirm.
Clark was in the employ of the Railroad as a bar lounge attendant and was working on the run between Jersey City and Point Pleasant, New Jersey. In April of 1958 the schedule to which Clark was assigned required his presence at the Bay Head Junction Yard at 4:30 A.M., long before sunrise. To accommodate the men who reported for work in darkness at this early hour, far from their homes, the Railroad provided overnight crew quarters. The place where Clark was to sleep was a boarding house at 500 McLean Avenue in Point Pleasant, New Jersey. On two afternoons just prior to the accident Clark returned to this boarding house while it was still light, and he observed that access to the house was by three wooden steps leading to a screened porch. To enter the house it was necessary to go up the steps, open the screen door, proceed across the small screened porch and open the main door leading to the quarters inside the house. There was another set of three wooden steps on the opposite side of the screened porch, but this set of steps is only of peripheral consequence.
Two other fellow workers also spent the night at 500 McLean Avenue, Lucius K. Morris, one of Clark's witnesses at the trial, and another man who was not called as a witness by either party. On the morning of April 15, 1958, the day before the accident, Clark came out of the house with Morris, who had a flashlight and, with the assistance of the flashlight, they both went down the steps, entered the taxicab provided by the Railroad and reached their destination on time. On April 16, 1958 Clark heard the taxi driver blowing his horn and he assumed that Morris had gone ahead and was already in the cab. As a matter of fact Morris, who was holding his flashlight in his hand, was still inside the house. Clark then went through the screened porch, opened the door and started to go down the steps. As he said, he missed the first step and fell, receiving the injuries complained of.
The simple factual issues related to the condition of the wooden steps and the amount of light afforded by whatever means were available for the purpose. While there is some talk about a slight defect in one of the steps, as shown in the photographs received in evidence, the real alleged defect relied on by Clark was the absence of any railing on either side of the steps. Morris testified no lighting was provided near the steps and that there were no lights inside the porch. He insisted the only street light in the vicinity was on the McLean Avenue corner, 125 feet away. Clark admitted he did not look for any light fixtures inside the screened porch, but he said he noticed the light up on the corner. He denied there was any street light directly across the street from 500 McLean Avenue.
Against this simple factual background we shall first address ourselves to what we consider to be the most interesting and important question in the case, Judge Rosling's ruling construing or amending the pre-trial order in the exercise of his judicial discretion and receiving the testimony of the two witnesses whose names had been omitted from the Railroad's pre-trial statement. The question arose on the second day of the trial during the direct examination of Clark. Feeling some concern over the omission to include the names of the two witnesses, trial counsel for the Railroad, having previously notified his opponent of his intention to do so, moved to amend the pre-trial order so as to include the two additional names. When Judge Rosling became aware of the fact that the two witnesses were to testify concerning the physical location of lighting facilities of some permanence, and read the pre-trial statement of the Eastern District requiring no enumeration of witnesses to be called in "rebuttal," he ruled that this was rebuttal and also that, in any event, in his discretion he would allow the witnesses to be called. He added:
"The Court: Well, I don't construe the pretrial order that stringently. It wouldn't make sense. That's a physical condition of some measure of permanence, and I will permit you to introduce a witness, whether it is rebuttal testimony or exercising my discretion to permit such testimony be introduced.
"Of course, if your adversary is able to indicate that he was surprising him, and he moves for a mistrial or adjournment, I will take it under advisement."
The matter came up again the following day, prior to the calling of the two witnesses, and Judge Rosling again offered Clark's counsel a reasonable adjournment if he desired to have one because of any surprise.
As counsel seemed to be more interested in throwing out an anchor to windward, in the event of an adverse verdict and an appeal, than he was to procure a continuance for the purpose of investigating the facts or the prospective witnesses, he remained silent. There was no motion for a mistrial and no request for an adjournment.
The wisdom of Judge Rosling's ruling was apparent when the two witnesses testified. George T. Chapman, a building and license inspector for Point Pleasant Beach, produced a map, later received in evidence, and he testified that there were two street lights, one on the corner of McLean Avenue, by actual measurement 100 feet from the steps where Clark fell, and another on the opposite side of the street from the steps only 60 feet away. This is the one Clark insisted did not exist. Chapman testified that to his personal knowledge these lights had been there for ten years prior to the accident. Marian L. Lufft, employed as an inspector by the Borough of Point Pleasant Beach, testified she inspected the premises at 500 McLean Avenue on June 16, 1958, that there were two electric light fixtures in the ceiling on the screened porch, one just above the steps used by Morris and Clark, and another just above the steps leading from the other side of the porch. She also testified that during April, 1958 she had observed these porch lights to be on as she passed by.
Thus it need not surprise us that counsel for Clark evinced no enthusiasm for a continuance to check the facts as testified to by these witnesses or the witnesses themselves. Despite the testimony of Clark and Morris, it was now pretty clear that light was available and that the fixtures ...