Appeal from a jury verdict and judgment entered in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, which awarded judgment and damages for the plaintiffs.
Clark, Associate Justice,*fn* Mansfield and Mulligan, Circuit Judges.
The appeal in this suit for personal injury based upon negligence involves a jury verdict and judgment for $350,000 in favor of Robert Elliott, plaintiff-appellee, and $28,000 for his wife, Shirley, on her derivative claim. Jurisdiction in the United States District Court for the Eastern District of New York was based upon diversity of citizenship, 28 U.S.C. § 1332. Appellants, Maggiolo Corporation, Maggiolo Contracting Co., Inc., Maggiolo Foundation Corporation, G & A Contracting Corporation, and Ronnie Gorr [Maggiolo], raise four points of error in their challenge of the verdict and judgment. Appellants claim prejudicial conduct of appellees' trial counsel, error in the exclusion of certain proffered impeachment evidence, prejudice with reference to the presence in the courtroom during the trial of appellees' children, and finally, error in the refusal of the court to grant a mistrial. We find no reversible error in any of the points, and affirm the judgment.
1. Background of the Trial:
The case was tried to a jury from November 25, to December 12, 1974, and the record of its proceedings covers some 2500 pages, with sixteen witnesses, 89 Exhibits and five depositions.
The appellee, Robert Elliott, was an employee of the Village of Woodbridge, New York, in its road maintenance department. On April 24, 1972, at about 11:30 a.m., he was cleaning a storm drain or catch basin on Glen Wild Road when a red colored Ford 10-wheel truck loaded with debris and other demolition material approached him. He turned his body so as to face the truck as it passed when suddenly he was struck across the side of his face by a board or plank which became dislodged from the debris piled upon the truck. The resulting injuries cost Elliott the loss of the use of his left eye through blindness; the loss of his hearing in his left ear through deafness; head and brain damage; and multiple scars on the left side of his face, nose, and head. The Elliotts offered two principal witnesses on the cause of the accident - Joe Schact, an eyewitness to the accident, and David Utegg, a driver of one of Maggiolo's trucks. The eyewitness, who lived near the scene of the accident, testified that after he had given Elliott a shovel to use in cleaning out the storm drain on Glen Wild Road he was watching Elliott at the drain in the street when a 10-wheel dump truck loaded with debris and demolition material came along Glen Wild Road passing by Elliott and obscuring the latter from his view. Schact heard a scream and after the truck passed Elliott he saw Elliott on the ground near the drain with a plank beside him. The other witness, David Utegg, testified by deposition taken on July 5, 1972, some 2 1/2 months after the accident. He testified that on the date of the accident he drove one of Maggiolo's red Ford 10-wheel dump trucks. He stated that he drove back and forth over Glen Wild Road and past the scene of the accident, while delivering debris and demolition material from an urban renewal project to a dumping ground near Glen Wild Road.
Other evidence corroborated the basic elements of Schact's and David Utegg's testimony. The trip cards made in the regular course of Maggiolo's business indicated that on the date of the accident four red 10-wheel dump trucks of Maggiolo's carried 34 loads of debris and demolition material from the renewal project to the dump yard and 20 loads of sand as well. The trucks moved along Glen Wild Road on continuous trips taking some 40 minutes for each trip and were obliged to pass the scene of the accident on each trip, going and coming.
Furthermore, a witness for the Maggiolos, Irving Newmark, Superintendent of Public Works for the Village of Woodbridge, testified concerning important elements of plaintiffs' case. He stated that Elliott was on the date of the accident cleaning mud and sand from the storm drains that had washed there from the urban renewal area project. Newmark further testified that he had received word of the accident and had investigated it, finding that a board from a passing truck was involved in the accident. On cross-examination, Newmark for the first time during his examination produced his personal notebook in which he had made notations of his investigation of the accident in his own handwriting. One of the notations made on the day of the accident recorded: "Bob (Elliott) said a board fell off one of Maggiolo's dump trucks and hit him while he was cleaning catch basins."
It was Maggiolo's defense that none of its trucks were on Glen Wild Road at the time and place of the accident; that they worked only in the afternoon on that date; that Elliott's claims were fabricated; that he suffered neither total disability nor unemployability, such claims being exaggerations, not supported by competent evidence, and made "out of the whole cloth." On appeal, Maggiolo contends Elliott's entire "trial approach was to obtain a favorable verdict, by foul means or fair. Hard proof lacking, plaintiff's trial counsel substituted technique, guile, disingenuousness, feigned naivete, etc. for proper conduct, all to the prejudice of the defendants."
While the trial does seem quite bizarre at times, we find no evidence in the record to support Maggiolo's charges of "foul means," "fabrication," paucity of proof, or prejudice. Admittedly there was some unfairness on both sides, but even in the courtroom fire is often fought with fire. As much as we abhor such tactics in a trial, it seems to us that here "the kettle is calling the skillet black." In short, there was reprehensible conduct on both sides.
On reading the record one cannot doubt the cause and the extent of Elliott's injuries. The recovery allowed by the jury was not so monstrous as to indicate that prejudice was present in the minds of the jury when determining liability and fixing the amount. On the contrary, Maggiolo does not even attack the jury's award. We find that hard proof was present and that it led directly to the findings of Maggiolo's liability, the Elliotts' damage, and appropriate recovery on the personal injury claim.
2. Maggiolo's Points of Error:
(a) Appellants claim that the overall conduct of Elliott's trial counsel in attempting to bridge the lack of direct proof of the plank falling from a Maggiolo truck and striking Elliott in the face was so unfair and prejudicial that reversal is required. Specifically, Maggiolo says this paucity of proof was bridged entirely by innuendo, supposition, arithmetic and circumstantial evidence, all held tenuously together by improper reference to matters excluded by the trial judge, false accusations, disingenuous statements, planted ...