Moore, Woodbury*fn* and Smith, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
Plaintiff David Juaire, appeals from a verdict and judgment for defendant Walter Marshak, Inc., in the District Court for the Southern District of New York, John F. X. McGohey, Judge, in a motor vehicle negligence personal injury action in which jurisdiction is based on diversity of citizenship. The principal grounds urged for reversal are prejudicial conduct of defendant's counsel, error in admission of police reports and error in the charge and supplemental charge. We find no reversible error and affirm the judgment.
At about 1:00 a.m. on September 4, 1960, Terry Nardin was driving appellee's car on Route 6A near Provincetown, Mass. when he collided with a pedestrian, plaintiff David Juaire, who was lying or crawling on or near the highway. The two lane road, just under 20 feet wide, was straight and almost level. There were no street lights but the moon was full. Plaintiff testified that he had come to Cape Cod from Providence, R.I. in Rosemary Trainor's car to spend the weekend with 26-year old George Holland and 21-year old Rosemary. Juaire was only 18 years old. They had lunch at a beach, walked around Provincetown and then went to a picnic area, and in the evening went to a night club where they stayed from about 9:00 to midnight. They then had some coffee and there was some discussion about where to spend the night. Rosemary wanted to return to Providence but plaintiff wanted to stay because the trip was too long. In any event, Holland drove the car and when they got to a rest area about 2 1/2 miles out of Provincetown Juaire got out of the car and the car pulled away. He walked to the end of the rest area and started to cross the highway when he tripped and fell into the road on his hands and knees. He saw lights coming from the right so he got up and then saw lights not more than 100 feet away coming from the other direction. He says that he stepped off the road onto the shoulder and while standing there was hit by the car and landed on the shoulder.
Nardin was travelling easterly between 25 to 30 or 30 to 40 MPH in a 40 MPH zone and had just proceeded, according to his testimony, up a small rise when he and his passenger, now his wife, observed plaintiff directly in front of them, apparently rising up from a position on his hands and knees in the center of the eastbound lane. Nardin slammed on his brakes and swerved to the left, but plaintiff was struck by the front right side of the car and knocked off the road to the right. Nardin testified that there was a hill just before the place of the accident which prevented him from seeing plaintiff. This was supported by the police reports which in describing the road character, stated "Hillcrest (slight)," and by the photographs in evidence. It is contested by the plaintiff who asserts that the road was essentially flat. Although it is not pointed out in either of the briefs, the evidence also supports that a car coming from the opposite direction passed at about the same time, and might have decreased Nardin's vision.
The testimony of Nardin was corroborated in most of the essential details by two eye-witnesses, his passenger, Mrs. Jane Baron Nardin (married since the accident), and by Thomas B. Kinraide, who had observed the plaintiff prone or on his hands and knees in the middle of the eastbound lane of the highway while he was riding in a car going in a westerly direction. He also noticed the headlights of a car coming from the opposite direction and as his car passed the figure on the road, he saw defendant's car swerve to the left and stop. Kinraide's car made a U-turn and then he observed the plaintiff lying on or very near the shoulder.
On cross-examination plaintiff testified that he had picked up a six-pack of canned beer at a supermarket before lunch and drank one can at lunch. Rosemary and Holland each had two at lunch and the sixth can was not accounted for. That evening at the night club, plaintiff had 2 1/2 bottles of beer and Rosemary had a gin drink. He denied that Rosemary was drunk but admitted that at a prior traffic hearing he had testified that Rosemary was very, very drunk, they had a big argument and he got out of the car. He stated that it was his intention to walk back to town from the place he got out of the car.
The police reports, based on Officer Christopher's observation of the scene and his interviews with Nardin and Kinraide at the scene, stated that the plaintiff was crawling on the roadway and had been drinking so that his ability was impaired. They also stated that Nardin was going 25-35 miles per hour in the 40 MPH zone and travelled 35 feet after the impact.
The only testimony that Nardin might have been exceeding the speed limit came from Kinraide, who testified that the car in which he was a passenger was probably going from between 40 and 50 MPH and that the defendant's car, coming from the opposite direction, was going approximately the same rate. However, he was not watching the speedometer in the car in which he was riding and was not in a very good position to make an accurate estimate of the speed of the oncoming car.
Kinraide also could not recall the odor of plaintiff's breath but had signed a statement in his own handwriting on September 25, 1960 (three weeks after the accident), which refreshed his recollection that his impression at the time was that he smelled alcohol at the scene of the accident.
Dissatisfied with Exhibit 3, an official map or profile of the road which employed two different scales -- 1 inch = 8 feet for elevation and 1 inch = 40 feet for all other measurements -- plaintiff's counsel, Lefkowitz, had someone draft Exhibit 3-A, a map apparently purporting to use the same scale for all measurements which appears in the original 3-A to be about 1 inch = 11 feet.
In his summation to the jury, defendant's counsel, Hauptman made the following argument.
Mr. Hauptman: Exhibit 3-A, which purports to be an enlargement of Exhibit 3. Notice what kind of an enlargement it is, gentlemen and madam. You notice the width of the road here (indicating)?
Look at the width of the road there (indicating). Much larger.
Look at the bottom part that is supposed to be a profile of the road. Do you notice the profile of the road compared to the width of the road? Do you see that, gentlemen? And why is it at least three times the width?
But on the proposed enlargement do you see what he did? He made the profile one quarter the size and enlarged the road area, this innocent lawyer who doesn't know how to ...