Friendly, Kaufman and Anderson, Circuit Judges.
Albert M. Bowman brought this diversity action to recover damages for personal injuries suffered by him while he was at work at an automobile service station owned by the American Oil Company (American) and operated in Manhattan, New York, by EGH Enterprises (EGH) as lessee. The case was tried against American and against Morris Kronitz, owner of the automobile which was the instrumentality of plaintiff's injuries.*fn1 The jury found in favor of both defendants and plaintiff has appealed. We affirm.
On Sunday afternoon, November 24, 1957, Morris Kronitz, with members of his family got into his 1950 Chrysler automobile in the west Bronx, intending to drive across town. En route Kronitz stopped the car next to the curb on E. 170th Street near the corner of Walton Avenue to let his wife out to do an errand. When she returned to the car, Kronitz started the engine, depressed the clutch, put the car in gear, released the handbrake and engaged the clutch; at the same time he stepped on the gas pedal to accelerate the engine, but the car did not go forward. Kronitz then put his foot on the brake, and turned the front wheels toward the curb to prevent the vehicle from rolling back down the hill on which it was parked.
Kronitz had purchased the second-hand Chrysler about a year before from his brother-in-law, Edward Kaufman, a part owner and operator of the EGH service station. When Kronitz discovered that his car would not operate, he telephoned Kaufman at his home to summon assistance. Kaufman arrived shortly afterward in his own automobile. He inspected the disabled vehicle, and found that it would go neither forward nor backward under its own power. While he was in the car, Kaufman tested the footbrake, and found a "firm, solid pedal" which held the car from rolling on the hill. The emergency brake, however, would not hold. From experience Kaufman knew that the handbrake on this model car was connected to the rear axle through the drive shaft and the combination of symptoms he had observed caused him to conclude that the rear axle of the Kronitz vehicle was the likely source of the trouble.
With Kronitz at the wheel of his Chrysler, Kaufman with his own car pushed the disabled vehicle a distance of three miles across town, through traffic, to his service station at the corner of Sherman and 10th Avenues in Manhattan. The number of traffic lights along the route which the two cars followed was placed by Kaufman between ten and twelve and he recalled two in particular at which Kronitz had brought his car to a stop, one being at the bottom of a steep hill on 170th Street. Kronitz testified that the footbrake on the car was working at the time, that he used it between thirty and fifty times, and Kaufman noted that the brake lights had gone on when the Chrysler slowed or stopped in front of him. When the two cars reached a point opposite the EGH service station on 10th Avenue, Kaufman pushed the Chrysler forward with enough force to move it up the curb-cut and onto the station property, where Kronitz stopped the car with the footbrake and Kaufman pulled up behind him.
The service station had been designed and constructed by American, and was equipped with two hydraulic lifts located in separate bays. The Kronitz vehicle was outside the bay which had an "X" frame lift with adjustable arms designed to make contact with the underside of the chassis of a vehicle. A small steel guideplate, 9 inches square, was affixed to the floor at the front and to the left of the lift to assist in positioning cars properly. There was a workbench at the back of the bay against the rear wall of the garage, so that when a car was on the lift, there was a space of approximately two and one-half feet between its front bumper and the outer edge of the workbench.
When Kronitz and Kaufman arrived there, a car was already on the "X" lift and Bowman was working on an automobile in the adjacent bay. Kaufman had the car on the "X" lift removed, and asked Bowman to give them a hand in guiding the Kronitz vehicle onto that lift. Bowman took a standing position in front of the workbench, and James Marshall, one of the station attendants, got behind the wheel. Kaufman edged his car up to the Chrysler and pushed it forward so that it would climb a slight incline and roll into the bay. Bowman gave hand signals to Marshall. Nothing was said to Marshall about the brakes on the Chrysler and, after he got in the car, there was no reason to test them, or further occasion to stop the car. As the car mounted the incline it lurched forward into the bay and, as Bowman later testified, "it kept coming and I told him 'Stop, stop.' I yelled 'Stop.'" Marshall testified: "Then I reached for my brakes. Then I discovered I didn't have no brakes. Then I pull the handbrake. It still wouldn't slow. Then I said out of the car, 'out of the way, I have no brakes on the car.'" But by then Bowman could not escape and he was pinned between the car bumper and the workbench. Immediately after the accident McGee, an attendant at the station, tested the footbrake on the car and found that "there was no brake at all."
At the trial Bowman claimed that the brakes on the Chrysler must have been defective for some time prior to the accident, and that Kronitz was negligent in not warning those present at the garage of the fact. The jury found otherwise, and plaintiff's appeal as to Kronitz is based upon certain evidentiary rulings made in the course of trial which he asserts were erroneous. The jury also exonerated American of any fault in connection with the incident and no appeal was taken from the judgment in favor of American on that issue. But the court refused to submit the case against American to the jury on the alternative theory of strict tort liability, or liability without fault, and this, the appellant contends, was error.
The plaintiff's case against Kronitz was based solely on his alleged negligence in failing to warn the plaintiff or Marshall that the brakes on the Chrysler were defective when it was being pushed into the bay. Although the record contains no direct evidence that the footbrake on the Chrysler was in a noticeably defective condition at any time the car was in Kronitz's control,*fn2 it was plaintiff's theory that such a condition might be inferred from the fact that the brakes failed to function shortly thereafter, a fact which, he claims, the jury would have been justified in finding from the fact of the accident and the testimony of plaintiff's witnesses Marshall and McGee.
Kronitz made no effort through affirmative proof to attribute the mishap to some other factor, e.g., the negligence of Marshall, although it was his intention to suggest as much through the testimony of Sheehan, the police officer who had investigated the accident. In a series of questions, counsel for Kronitz sought to elicit from Sheehan testimony to the effect that none of the witnesses to the accident with whom he had spoken in the course of his investigation had mentioned a failure of brakes as a possible cause of the accident. The defendant's plan was to cast doubt by this negative means upon the plaintiff's version of the accident which ascribed the cause to defective brakes. Thus counsel for Kronitz, anticipating a negative response, asked Sheehan the following question: "Did any one of those people, the parties concerned, make any mention to you about a failure of brakes?" The court refused to permit such testimony unless Sheehan could attribute to a particular witness what he had been told about the accident. This Sheehan was unable to do. But counsel for the defendant was successful in his second effort to get the evidence in when he persuaded the court to rule that Sheehan's memo book and "aided card," which were prepared by the officer either during or shortly after the investigation, were properly admissible under the federal business records statute, 28 U.S.C. § 1732.*fn3 These exhibits were therefore put into evidence in substitution for the officer's direct testimony to show that nothing had been said to him at the time of his investigation concerning faulty brakes on the Kronitz vehicle. As this was not expressly stated in the memo book,*fn4 the purpose was to lay the foundation for the drawing of the negative inference that because none of the witnesses was recorded as having mentioned faulty brakes as the cause of the accident, then faulty brakes had nothing to do with it.
While there are no doubt cases in which the business records statutes may properly be used to facilitate the proof of negative facts,*fn5 we think that this is not one because the likely effect of such proof by indirection here was to substitute unreliable for reliable evidence, contrary to the basic purpose of § 1732. Although under the circumstances we conclude that the court erred in admitting the policeman's relevant memo book entries and "aided card" as business records after refusing to permit the policeman on the witness stand to testify to the same thing, the plaintiff was not prejudiced thereby and the error does not require reversal since the excluded oral testimony, which covered the same evidentiary matter, should have been admitted.
Where a written record of past events is offered in evidence under § 1732 as a substitute for a witness' testimony at the trial, there must go with the offer, as an implied qualification under the statute, the assurance that the written record is accurate and trustworthy. United States v. Hickey, 360 F.2d 127, 143 (7 Cir.), cert. denied 385 U.S. 928, 87 S. Ct. 284, 17 L. Ed. 2d 210 (1966). Although we have repeatedly said that § 1732 should be liberally administered and not interpreted in a "dryly technical way," Korte v. New York, N.H. & H.R. Co., 191 F.2d 86, 91 (2 Cir.), cert. denied 342 U.S. 868, 72 S. Ct. 108, 96 L. Ed. 652 (1951), this does not mean that any particular business record may be admitted without careful scrutiny of its reliability for the purpose for which it is offered as evidence. Thus literal compliance with the mechanical prerequisites of the statute is not always sufficient to make a record admissible, United States v. Grayson, 166 F.2d 863 (2 Cir. 1948); the records or the circumstances under which they are kept should indicate an "inherent probability of trustworthiness" for the purpose for which they are offered. LeRoy v. Sabena Belgian World Airlines, 344 F.2d 266, 274 (2 Cir.), cert. denied 382 U.S. 878, 86 S. Ct. 161, 15 L. Ed. 2d 119 (1965).
An examination of Sheehan's memo book discloses that it was not in fact a purported "memorandum or record" of what was or was not said concerning the cause of the accident and that it therefore fails to meet the test of reliability implicit in § 1732. The memo gives no hint that Sheehan ever inquired specifically about the brakes on the Kronitz vehicle, or even that he asked generally why the vehicle had failed to stop. Sheehan testified that it was his official duty, in accordance with routine police procedure, to ascertain the causes of the accidents which he investigated from persons who were present at the time and to record this information in his report. In this case he presumably noted in the memo book whatever he had been told by four parties -- Bowman, Marshall, Kronitz and Kaufman -- yet the book contains no specific information on what might have caused this accident, and in fact devotes but a single phrase to its occurrence -- "broke loose and ran into wall pinning aided person Albert Bowman." Although the entries thus give no suggestion that Sheehan was ever told of a brake failure, neither is there anything in his notes which ...