172 F.2d 324 | 2d Cir. | 1949
The appellee, Robert L. Croker, who was employed as a fireman on an engine owned and ' operated by the appellant, brought suit under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, to recover damages for injuries sustained while he was engaged in interstate commerce. Upon the verdict of a jury judgment for $12,000 was entered in his favor. The appellant seeks reversal on two grounds: First, error in denying a motion for a directed verdict on the ground that the accident as described by the plaintiff, who was the only witness to it, was a physical impossibility; and, second, error in the admission of evidence.
The plaintiff was injured while attempting to board a slowly moving engine engaged in switching freight cars. He testified that he seized the grab irons on either side of the gangway leading- to the cab of the engine, placed his left foot firmly on the bottom step and was just lifting his right foot from the ground when the engine gave a violent lurch forward. This threw his body backward against the side of the tender, his foot was jarred from the step, his hands slid down the grab irons, he fell on his spine, and his left foot went under the front right wheel of the tender which crushed four of his toes.
The appellant’s contention as to error in the admission of evidence is also unsupportable. On cross-examination of the plaintiff, the appellant attempted to show that he had failed to follow medical advice and undergo an operation, characterized as "a little repair work,” which would have improved his condition. To meet the implication that he had not done all he should to effect a cure, the plaintiff was plainly entitled to show who the doctors were and why he did not follow their advice. 'On redirect he said that the operation was suggested by Dr. Truax and Dr. Donaghy, that Dr. Truax was employed by the railroad and Dr. Donaghy was employed by Dr. Truax. His information that Dr. Truax was employed by the railroad was derived from the company’s 1946 timetable which listed his name among the railroad’s surgeons and instructed employees to notify them in case of injury. If Dr. Truax had ceased to be on the list at the time when the plaintiff consulted him, it was for the defendant so to prove. Nor is it material whether the surgeon’s relation to the railroad was that of an agent or an independent contractor; in either case his advice might be thought by the plaintiff to be subject to some bias which made it reasonable for him not to follow it.
Judgment affirmed.