Anderson, Feinberg and Mulligan, Circuit Judges.
ROBERT P. ANDERSON, Circuit Judge:
On June 11, 1969, William Coons, a truck driver, delivered a load of glass to Washington Mirror Works' Bronx warehouse. As one of the crates of glass was being unloaded by means of an electric overhead hoist designed and installed by Electric Motors, one of the wheels of the hoist slipped off the track along which it moved laterally. As a result, the crate, which weighed approximately 1100 pounds, fell on Coons' right leg, pinning him to the bed of the truck. Employees of Washington Mirror lifted the crate from his leg, and Coons was rushed to Fordham Hospital, where it was discovered that he had suffered a fracture of the lower leg and severe fracture and dislocation of his right ankle. Coons was able to return to work on March 9, 1970, although until about April 20, 1970 he could serve only as a helper, not as a driver.
The trial of this action was conducted in three stages. First, the issue of Washington Mirror's and Electric Motors' liability to Coons was tried to a jury. By a special verdict it held Washington Mirror liable for negligence on the theory of res ipsa loquitur and Electric Motors liable for breach of warranty. This same jury then heard evidence with respect to the damages suffered by Coons and, again by special verdict, awarded him $14,160 for hospital and medical expenses, lost wages, and pain, suffering and disability. The jury specifically declined to award any damages for future pain, suffering and disability. Finally, the cross-claims for indemnification by the two defendants were tried to the court on the basis of the record developed during the first two stages. The trial court, D.C., 344 F. Supp. 653, concluded that each was equally responsible for the accident and therefore awarded each the right to 50% contribution.
Coons' sole argument on this appeal is that the jury awarded him insufficient damages for pain and suffering, past and future, because of an improper evidentiary ruling by the district court and a plainly erroneous omission from its charge. Three witnesses testified during the portion of the trial which dealt with plaintiff's damages. Coons testified concerning his lost wages, and his past and continuing suffering; a physical therapist described the number and nature of the treatments she had administered to Coons; and a Dr. Tuby gave his expert opinion that Coons would permanently suffer some pain and swelling in his right ankle whenever he performed strenuous work.*fn1 Coons was then recalled and testified that three days earlier he had been examined by a Dr. Stella, a physician chosen by Washington Mirror, and that under Dr. Stella's direction Coons' leg had been x-rayed and that the x-rays had been delivered to Dr. Stella. The trial court ordered the testimony concerning the x-rays stricken, and directed the jury to disregard it and not to draw any inferences from it.
The exclusion of Coons' testimony concerning the x-rays in the possession of Dr. Stella was not erroneous. The existence of the x-rays and their non-production by Washington Mirror did not give rise to any inference that they supported Coons' claim of future pain and suffering because they were equally available to Coons, i.e. the actual x-rays taken or others which Coons could have had taken. See McCormick on Evidence, § 272, 656-658 (2d ed. 1972).
In charging the jury, the court noted the failure of Coons to call his treating physician and stated that the jury might "draw such inferences as [it] believe[d] appropriate from this particular feature," but he did not mention the failure of the defendant Washington Mirror to call Dr. Stella or refer to any inferences which could have been drawn from this. Plaintiff was entitled to the charge that the jury could draw the inference from Washington Mirror's failure to produce Dr. Stella, who was retained by it and who had examined Coons on its behalf, that if Dr. Stella had testified, he would not have contradicted or qualified the testimony of plaintiff's medical expert. Laffin v. Ryan, 4 A.D.2d 21, 162 N.Y.S.2d 730, 734 (3d Dept. 1957). Accord, Rice v. Ninacs, 34 A.D.2d 388, 312 N.Y.S.2d 246, 249 (4th Dept. 1970). Plaintiff's counsel neither requested such a charge nor excepted to the charge as delivered and by virtue of his failure to claim this right at trial he is precluded from asserting it here, Rule 51 F.R.Civ.P., unless the omission constituted "plain error." Finn v. Wood, 178 F.2d 583, 584 (2 Cir. 1950). On the face of the record here, particularly since plaintiff's counsel strenuously argued this inference in his summation, we do not believe a "miscarriage of justice" has occurred. 5A Moore's Federal Practice para. 51.04 at 2515 (1971).
Therefore, we affirm the judgment of $14,160 in favor of Coons against Washington Mirror and Electric Motors.
Turning to the cross-appeals from the trial court's assessment of equal liability upon Washington Mirror and Electric Motors, there are two aspects of the findings of fact which were critical to the apportionment of liability. First is the finding that the hoist "was of improper, inadequate design which allowed the wheels . . . to be pulled off . . . by the weight of the load," and that therefore Electric Motors had breached its warranty and that this breach was a cause of Coons' accident. Second, the court found that Washington Mirror had been negligent in its operation of the hoist because (1) the crates were dragged along the floorbed of Coons' truck while they were attached to the hoist, and (2) the crates were improperly slung from the hoist, and that these acts of negligence were causes of the accident. The court, therefore, apportioned the liability equally.
Electric Motors asserts that the two factors found by the district court to have constituted negligence on the part of Washington Mirror also constituted misuse of the hoist, and therefore Washington Mirror cannot recover against Electric Motors for breach of warranty. Washington Mirror contends that the findings of improper slinging and negligent dragging were clearly erroneous and unsupported by the evidence, leaving only the improper design of the hoist as the proximate cause of the accident. We agree with Washington Mirror.
To begin with, it should be noted that these factual findings by the court on the cross-claims are inconsistent with its rulings during the trial on the defendants' liability to Coons. At that time, the court held that no specific negligent acts by Washington Mirror had been established, and therefore the jury could only conclude there was fault on the theory of res ipsa loquitur. Then on the cross-claims, which, by stipulation, were to be decided on the basis of the same record, the court found two specific negligent acts. The two conclusions are inherently inconsistent. We hold that the court was correct in its original position and incorrect in its later conclusion that Washington Mirror had committed specific acts of negligence.
The only "testimony" concerning improper slinging was offered by counsel for Electric Motors in the course of the leading questions he posed to Earl Cadwell, an expert witness called by Washington Mirror. When he finally asked an acceptably phrased question concerning Washington Mirror's method of slinging the crates for hoisting, the exchange was as follows:
"Q. If force was applied to the top of the crate, could it cause ...