Opinion
No. 69, Docket 24484.
Argued November 14, 1957.
Decided December 2, 1957.
William L. Shumate, New York City (Gerald E. Dwyer and Donald E. Deegan, New York City, on the brief), for defendant-appellant.
Arnold B. Elkind, of Zelenko Elkind, New York City, for plaintiff-appellee.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and LEIBELL, District Judge.
Defendant appeals from a verdict and judgment of $51,000 for plaintiff in an action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. Its sole assignment of error is that the trial court erred in charging the jury that defendant's negligence could be based on acts other than those referred to by plaintiff or his witnesses and in refusing the defendant's requests to charge to the same intent. During the course of the trial Machinist Rankin, one of defendant's witnesses, testified to acts from which the jury could have concluded that defendant was negligent and that such negligence caused plaintiff's injuries. This evidence had not been put forward by plaintiff, but was apt and relevant to the issues before the jury.
The defendant has hit upon a singularly weak and unsound contention on which to found its hope for reversal. Here the complaint is wisely broad, and plaintiff is entitled to the jury's view based on all the evidence in the case, not merely plaintiff's own testimony. Defendant's requests to charge are erroneous and misleading, for they would exclude consideration of Rankin's direct and vital testimony. The court's charge covering this point is restrained and even necessary; it is not fairly represented by the single sentence defendant wrests out of context to emphasize. The verdict is generous, but not improper.
Judgment affirmed.