Lumbard, Chief Judge, Friendly, Circuit Judge, and Mansfield, District Judge.*fn*
In this action in the District Court for the Southern District of New York, Gabriel Felice sought to recover under the FELA for a back injury experienced while working at a shop of the Long Island R.R. After trial before Judge Metzner and a jury, he received a judgment for $100,460. Not disputing that there was sufficient evidence for the verdict, the Long Island complains of prejudicial errors at the trial.
On March 8, 1966, Felice, a car repairman, was working with two others, Bilello and Mazzeo, in removing, from the underside of railroad cars, cylindrical tanks that hold the pressurized air used in operating brakes. In the course of this work he seriously injured his back. On March 12 he consulted Dr. David Lipton, who directed hospitalization at Smithtown General Hospital, where he was placed in traction. When this did not succeed in relieving his pain, Dr. Moses Ashkenazy, a neurosurgeon, and Dr. Lipton performed a laminectomy on March 28. Fluid developed in the wound and was removed in April. On May 23 Felice was readmitted for severe leg pain, and another laminectomy and a fusion were performed on June 1.
The controversy concerned the cause of the injury. The railroad's theory was that this had resulted from the mere act of lifting the heavy tank -- a cause that would qualify under a workmen's compensation act but not under the FELA. Felice testified that the railroad had failed to see that the premises remained reasonably clean and safe, and that he had slipped on a concealed spot of grease and oil. Defendant's case against this consisted of various records made shortly after the accident which report Felice as saying nothing about slipping. These included:
(1) An accident report prepared on March 8, 1966, by Caradonna, Felice's foreman. Under the rubric "Explanation of how reported injury occurred: (including actions leading up to alleged accident)," the report said "Lifting a tank on the hilo with another helper -- back just went." The report named Bilello as a witness and quoted him to the same effect.
(2) A card filled out by a nurse in the office of the company's Medical Examiner, Dr. V. A. Capozzi, on Felice's first visit on March 11, 1966, reciting as his history, "picking up a tank with a helper (expansion tanks for brakes) picked up into hylo, pain in lower back * * *," and a statement reported in the Medical Examiner's report of the same visit, reciting under the heading "Statement of injured": "states -- picking up a tank with a helper (expansion tanks for brakes) picked up into hylo, pain in lower back * * *."
(3) A record of the Smithtown General Hospital on Felice's admission on March 12, 1966, reciting "PT while working, lifted a heavy object and felt a snap in his back with marked pain since then."
(4) Workmen's Compensation Attending Physician Reports dated March 14 and 21, 1966, signed by Dr. Lipton, which said in answer to the questions "State how injury occurred and give source of this information"; "lifted heavy object injury to back."
With respect to item (1), Caradonna testified that he "would say" Felice had reported the injury but was not certain. Felice admitted that he reported the injury to Caradonna. Caradonna conceded that there had been complaints that the pit and aisles of the shop were dirty with grease, and that he had observed this at times.
Plaintiff in his pre-trial memorandum had "reserved the right" to call Mazzeo; defendant had stated that it would call Bilello and Mazzeo. Neither was called. At plaintiff's request the court charged:
"Reference has been made by plaintiff to the failure of the defendant to call certain of its employees, Bilello and Mazzeo, who were eye witnesses to the accident. You may draw an inference, if you wish, that if such witnesses were called by the defendant they would have exposed facts unfavorable to the defendant."
Defendant made timely objection to this charge on the ground that the witnesses were equally available to both sides. The court overruled this, citing Case v. New York Central R.R., 329 F.2d 936 ...