Appeal from a judgment of the United States District Court for the Western District of New York, John O. Henderson, Judge, entered upon a verdict in favor of plaintiff in a negligence action. Affirmed.
Lumbard, Hays and Oakes, Circuit Judges.
The appellee, Oscar F. Collins, brought this diversity action alleging that he suffered personal injuries as a result of the negligence of the appellant, Penn Central Transportation Company. After a trial the jury returned a verdict for appellee and the district court entered judgment on the verdict. Penn Central appealed. We affirm.
As the first ground for appeal appellant claims that appellee failed to adduce sufficient evidence to support the verdict of the jury. We disagree.
Appellee worked for a contractor constructing an electric transmission line from Niagara Falls to Rochester. When the accident occurred appellee was standing some two hundred yards from the railroad tracks and was coiling a rope attached to a cable which was strung over the tracks on a set of riser-poles. A train passing on the track caught the cable, which in turn pulled the rope so that it ensnared appellee, throwing and injuring him.
Appellee introduced evidence tending to show that the railroad had notice that the construction work was under way but had failed to provide for a flagman in the area, that the members of the crew of the train failed to keep a proper lookout and therefore failed to observe that the cables were hanging too low to permit the train to pass, that the train was moving too rapidly at the time, and that the train failed to warn of its approach.
Appellant contends that the cable which injured appellee had been high enough for the train to pass, but that it slipped at the last moment, leaving the train crew insufficient time to stop to prevent the accident. However, the testimony on the heights of the cable was conflicting and often ambiguous. Testimony as to whether and when the cable which caused the injury slipped was even more ambiguous. We cannot set aside the verdict of the jury unless, when viewing the evidence in the light most favorable to the prevailing party, "there is a complete absence of probative facts to support the conclusion reached" by the jury. Lavender v. Kurn, 327 U.S. 645, 653, 90 L. Ed. 916, 66 S. Ct. 740 (1946); Fleming v. American Export Isbrandtsen Lines, Inc., 451 F.2d 1329, 1331 (2d Cir. 1971); Myers v. Town of Harrison, 438 F.2d 293, 298 (2d Cir.), cert. denied, 404 U.S. 828, 30 L. Ed. 2d 57, 92 S. Ct. 64 (1971). Where there is such a substantial conflict in the evidence as there is in this case, the verdict of the jury must stand.
Penn Central also appeals on the ground that counsel for appellee improperly attempted to prejudice the jury by referring to reports not in evidence even after the trial judge had excluded the reports.
Shortly after the accident the railroad took statements concerning the event from the members of the crew of the train. Before trial several of the crewmen died. Appellee argued that the records of these statements were business records and were admissible as an exception to the hearsay rule under 28 U.S.C. § 1732 (1970). The district court disagreed.
On this appeal appellee renews his claim that the statements were properly admissible. However, we need not decide that issue, for even if the district court was correct, appellants suffered no substantial harm from the references to the statements.
Early in the trial the district judge refused to admit the statements in evidence because he did not believe that there was sufficient proof that records of these statements were kept for purposes other than litigation. The court permitted counsel for appellee to question witnesses in front of the jury in an attempt to ascertain how the railroad prepared these records and for what purposes it used them. Several questions which were asked early in the trial and to which appellant now objects were apparently asked by appellee in a good faith effort to satisfy the court's doubts. Appellant did not object to these questions. Moreover, the court voluntarily excused the jury on several occasions so that the questioning might continue in their absence. Without commenting on the wisdom of this procedure, we find that it did not prejudice the appellant.
Appellee failed to convince the district court that the statements were admissible. However, counsel continued to try to make use of the statements in several ways. In certain cases he asked witnesses questions based on hypothetical situations containing facts which he apparently culled from the statements. These facts had never been placed in evidence, and the jury had no way of knowing they were contained in the statements. The court overruled appellant's objections to the questions and properly instructed the jury that the hypothetical situations were assumptions only and not evidence to be considered by them. This was not error. Counsel may ask a hypothetical question so long as he states specifically the factual assumptions of the question. See 2 Wigmore, Evidence §§ 672-686 (3d ed. 1940). Of course, if the party does not independently prove the facts assumed, the jury is free to disregard the conclusion of the witness.
Several times the judge instructed the jury that the parties disagreed about the admissibility of certain evidence, that the judge and not the jury would resolve the dispute, that statements made by certain persons since deceased were not admissible, and that the ...