KELLER v. BROOKLYN BUS CORPORATION
No. 247
Circuit Court of Appeals, Second Circuit
May 27, 1942
128 F.2d 510
We are not saying that the history of the insured‘s health subsequent to the date of lapse may not be proved, to throw light on what disease he really had and what his condition really was at that date. Later developments may show much that was at first hidden. We are saying that all the evidence here shows is that if McCluskey was totally disabled in August, 1921, it was because of a curable disease, tuberculosis of the lungs, and none of it shows that at that date his condition was such as to render it reasonably certain he could not recover. United States v. Bryan, 5 Cir., 82 F.2d 784. Since another trial with a better understanding of the issue may possibly produce clearer evidence, we award a new trial. The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Louis Rothbard, of Brooklyn, N. Y. (Ralph Stout, of New York City, of counsel), for appellant.
William C. Chanler, Corporation Counsel, of New York City (Paxton Blair and James Hall Prothero, both of New York City, of counsel), for appellee.
SWAN, Circuit Judge.
Federal jurisdiction in this case rests on diversity of citizenship. The action sought damages for the death of Mrs. Hudson, who was the plaintiff‘s mother and of whose estate she was appointed administratrix. Mrs. Hudson was killed by being run over by the defendant‘s motor bus due, it is alleged, to the bus driver‘s negligence. The trial resulted in a verdict for the defendant. From the ensuing judgment the plaintiff has appealed, claiming errors in the charge given to the jury.
The accident occurred at about 11:40 P. M. on April 8, 1939. The bus had been proceeding easterly along Newkirk Avenue in Brooklyn; it stopped at the southwest corner of Newkirk and Flatbush Avenues to let off passengers, among whom was Mrs. Hudson. When the bus stopped the traffic light at the corner showed red against traffic on Newkirk Avenue. After it changed to green the bus started forward and made a wide swing to the right into Flatbush Avenue. In the meantime Mrs. Hudson had walked over to the westerly curb of Flatbush Avenue and when the traffic light was green she started to cross the street. She came into contact with the bus during its turn and after the accident her body was found about 15 feet south of the curb line of Newkirk Avenue, between the southbound rails of the trolley track on Flatbush Avenue, and 18 or 20 feet from the rear of the bus. The principal question of fact was whether she walked into the side of the moving bus or whether she was sufficiently in front of it so that the driver should have seen her. The only eyewitness to the accident testified that she was hurrying across the street, looking toward the south, and that he “saw the woman walk into the side of the bus.” One of the passengers, however, gave testimony from which the jury could conceivably have found that just before the accident she was directly in front of the bus and should have been seen by the driver, who could have stopped the bus had he then seen her. Admittedly he did not see her. His testimony that she was never in front of the bus was corroborated by a passenger who occupied a seat directly behind the driver. Obviously, the issue of how the accident happened and whether it was caused by the carelessness of the driver or the decedent‘s own negligence were mat
One of the appellant‘s complaints relates to the trial court‘s interpretation of Article 4, section 29, subdivision B of the Traffic Regulations of the Police Department. This requires that the driver of a vehicle “equipped with a mechanical or electrical signalling device” shall, “before turning to the right or left or slowing down,” give timely warning by said signalling device. It was the contention of the appellant that this regulation required the bus driver to sound his horn before turning into Flatbush Avenue, but the court refused so to instruct the jury and explained to them that in his opinion the device to which the regulation referred was a mechanical arm or an electrically operated rear light signal with which trucks or other vehicles are often equipped. We agree with the trial court‘s interpretation; every automobile is equipped with a horn and the idea that the horn must be sounded whenever the vehicle slows down or turns a corner appears fantastic.
The only point really meriting discussion is the charge respecting burden of proof. Early in his instructions the judge correctly stated that the plaintiff had the burden of proving that her mother died because of the negligence of the defendant. He then proceeded to refer to the evidence and concluded this portion of the instructions with the statement that, in order to entitle the plaintiff to recover, the bus must not only be at fault but Mrs. Hudson must have been in the exercise of due care on her own account. This also was clearly correct, but the charge continued: “If the bus was at fault and she also was at fault, if she failed to exercise due care, then the plaintiff has failed to sustain her burden of proof. On the other hand, if the bus was at fault and Mrs. Hudson was not at fault under all the evidence in the case, then the plaintiff has sustained her burden of proof ***”
It is urged that this erroneously instructed the jury that the plaintiff had the burden of proving the decedent‘s freedom from contributory negligence, which is contrary to
“Mr. Rothbard: Would your Honor permit me to make one oral request and that is that the defendant is under the duty of convincing the jury in this case—not plaintiff but the defendant—of convincing the jury that the deceased was guilty of contributory negligence.
“The court: I so charge.”
This emphatic declaration that the defendant, not the plaintiff, must convince the jury of the deceased‘s contributory negligence, was the court‘s final word before the jury retired for deliberation. It definitely put upon the defendant the “duty” of “convincing” the jury as to negligence on the part of Mrs. Hudson. A majority of the court entertain no doubt that it was sufficient to remove any misconception which may have been engendered in the jury‘s mind by the preceding instructions concerning the burden of proof if she was at fault in failing to exercise due care.
In the federal courts technical errors which do not affect the substantial rights of the parties cannot be made the basis of reversal.
FRANK, Circuit Judge (dissenting).
As I am far less experienced in deciding jury cases on appeal than my very wise colleagues, for whose views I entertain the sincerest respect, I have hesitated to disagree with them in this case. But this seems to me an instance of Homer nodding. I think the majority opinion unwisely overrules former decisions of this court, disregards rulings of other Circuit Courts of Appeals, and has the effect of improperly substituting—contrary to the
The trial judge in his charge gave two conflicting versions of the burden-of-proof rule. The first was wrong, sufficiently so that, if not retracted, the majority opinion concedes it would compel reversal; the second was correct. If it were clear that the jury understood that the judge meant to substitute the second for the first, then the error would be harmless. But I perceive no basis for the belief that the jury understood that he had changed his mind, since he did not so state or imply. See what he did: Immediately after he uttered his earlier mistaken version, he ignored an exception thereto, made by appellant‘s counsel. Then he went on to give instructions on other matters. After a considerable interval—five folios later in the transcript—he was requested to and did state the correct rule. But he did not then say or imply: “This is in place of what I previously said on this subject, which was mistaken and which you must ignore.” How, then, can we say that the jury knew that the second was a retraction?
For reasons noted below, we are obliged to assume that they listened intently to all his remarks. If they accepted him—which again we are obliged to assume—as the infallible source of all legal learning relevant to the case, they must have thought that his legal dissertation was intended to be logical and self-consistent. It would, indeed, have been presumptuous for them to have decided, without advice from the judge to do so, that part of his legal discourse was wrong. And, if they did not, then, if they were conscientious, and worked as juries are supposed to do, they must have been baffled. To illustrate: Suppose that my two brother judges and I read a paper by an eminent physicist on radioactivity. If we found what appeared to us to be inconsistent statements, we would, in all likelihood, reject the suggestion that the savant had at any point been in error; we would reason that the appearance of inconsistency was due to our limited knowledge of a subject as to which we were but amateurs, and we would try, in some way, to reconcile his seemingly discrepant remarks. In similar fashion, the jury here—if, I say, they acted as juries are supposed to act, heeding the legal instructions from an expert and according to him appropriate respect for his superior legal wisdom—must have tried to harmonize the discrepant parts of his charge. On that assumption, they were asked to achieve the impossible.
As an alternative, we might conjecture that the jury thought (a) that the judge was merely, in new verbiage, repeating what he had said before or (b) that they were at liberty to choose either rule. On any of these hypotheses, the defendant was deprived of a fair trial by jury.
Of course, we should not be fly-specking in our examination of what goes on in a trial. Perfection is no more to be sought in courtroom conduct than in any other human activity. I agree that we should never engage in “an overjealous scrutiny of every word that may fall from the judge‘s mouth,”2 else there would be few unreversed judgments. Judges “are all human and it is unreasonable to demand that any human process be absolutely flawless. The work-a-
Some State courts have been exceedingly liberal in their application of that doctrine even in jury cases. But State courts are not bound by the
Wigmore deplores such rulings.6 But our master‘s voice is that of the Supreme Court, not Wigmore‘s. For a time, the Eighth Circuit Court of Appeals, in a series of decisions, held that the statute had changed the earlier rule so that, it said, the burden is on the complaining party to show that an error was harmful.7 Those decisions won the applause of Wigmore.8 But in 1941, in Fort Dodge Hotel Co. v. Bartelt, 8 Cir., 119 F.2d 253, 259 (a case involving an erroneous in-
That problem is particularly difficult of solution where the judge‘s charge is confusing and contradictory. Deserant v. Cerillos Coal Co., 178 U.S. 409, 420 (1900); Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 83, 84 (1919); Cummings v. Pennsylvania R. Co., 2 Cir., 45 F.2d 152, 153; Schroble v. Lehigh Valley R. Co., 2 Cir., 62 F.2d 993, 996; J. H. Sullivan Co. v. Wingerath, 2 Cir., 203 F. 460; Mideastern Contracting Corp. v. O‘Toole, 2 Cir., 55 F.2d 909, 911; Memphis Furniture Mfg. Co. v. Wemyss Furniture Co., 6 Cir., 2 F.2d 428, 432.
It is, indeed, difficult for me to distinguish the case at bar from Cummings v. Pennsylvania R. Co., 45 F.2d 152, 153, decided by this court in 1930. There a judgment on a verdict was reversed where, after an incorrect charge as to presumption of negligence, the trial judge later gave a correct charge. This court said: “If the latter cured the error in the former, all is well, but it is impossible to reach that conclusion. Having been told plainly that the plaintiff was cast unless it explained how the injury occurred and established that it was free from negligence, nothing short of an express repudiation of that charge coupled with a correct statement of the law can be thought to have erased the erroneous impression from the minds of the jurors. The subsequent charge given, not as an express correction and with no attempt to point out to the jury the difference between it and what had previously been said, would, in all probability, have been treated only as a restatement of what had gone before. Quite likely the jury was unaware of any change. At best, it did know of it and was left to take its choice between two inconsistent statements of the law, one of which was wrong and one right.” In 1933, this court, in Schroble v. Lehigh Valley R. Co., 2 Cir., 62 F.2d 993, 996, said: “Consequently the instruction that the defendant was bound to ‘explain away the presumption of negligence’ was not correct. Nor was it fairly cured by the instruction that ‘the burden is on the plaintiff to prove negligence,’ for the instruction about the burden of proof was confused by the prior statement that it was the duty of the defendant to ‘explain away the presumption of negligence.‘” In Chicago, B. & Q. R. Co. v. Kelley, 8 Cir., 74 F.2d 80, 84, 85, it was said: “Where the court has given an erroneous instruction, it may be withdrawn or explained by the court so as to remove error which otherwise might be present. But the withdrawal must leave no doubt in the minds of the jury as to what the court ultimately declares the law to be.” Cf. St. Louis, I. M. & S. Ry. Co. v. Needham, 8 Cir., 52 F. 371, 377, 378; Louisville & Nashville R. Co. v. Johnson, 7 Cir., 81 F. 679, 681.9
I have found no decisions of this court or of the Supreme Court expressly or impliedly over-ruling the Cummings case, the reasoning of which, I think, is both persuasive and controlling. However, as my colleagues seem to me to reject it here, it is desirable to add this reasoning:
The judge‘s charge is a markedly important component of the postulate underlying the general-verdict-jury system, which postulate may be briefly described thus: The jury listens with strict attention to what the judge tells them concerning any particular applicable legal rule; they understand thoroughly the meaning of that rule; they accept it as a major premise, and, with nice logic, “apply” it to the minor premise (i.e., the “facts” as the jury “finds” them after careful deliberation); they thus arrive at their verdict. A serious error in the judge‘s instructions, likely to confuse the jury, can be regarded as harmless only if one rejects that basic postulate.
There are many who are sceptical about its correspondence with the actualities of jury behavior. Whether or not that scepticism is justified, we, while acting in our judicial capacity, are forbidden, as a matter of “law,” to inquire: It is well settled that, generally, it is improper, after
Such is the situation here. Had there been a special or fact-verdict, or if the general verdict had been coupled with answers to fact-interrogatories, we would almost surely know whether the mistaken portion of the judge‘s charge contributed to the jury‘s conclusions. As it is, we are unable so to determine. Not that special or fact-verdicts (or jury answers to fact-interrogatories) can be cure-alls. But they can do much to bring the behavior of juries as fact-finders into line with that fortunately increasing tendency to improve fact-finding manifested in the requirement that the orders of administrative agencies, and of judges sitting without juries, must be accompanied by adequate findings of fact. Cf. N.L.R.B. v. Virginia Electric Power Co., 314 U.S. 469, 479-480 (1941); Interstate Circuit, Inc., v. United States, 304 U.S. 55, 58 (1938); Matton Oil Transfer Corp. v. The Dynamic, 2 Cir., 123 F.2d 999, 1001; United States v. Forness, 2 Cir., 125 F.2d 928, 942; Petterson Lighterage & Towing Corp. v. New York Central R. Co., 2 Cir., March 10, 1942, 126 F.2d 992.
The adequate determination of the “facts” in law suits is the weak spot in the judicial process.12 Many thousands of dollars and years of effort have been spent in devising “Restatements” of the legal rules; but, even if they were faultless, they would be of little worth in the administration of justice, if courthouse fact-finding were not substantially bettered.13 As an important step in that direction, Rule 49 of the new Federal Rules of Civil Procedure was designed to encourage the use of the special verdict or, in the alternative, the general verdict accompanied by the jury‘s answers to interrogatories as to issues of fact.14 It is strange to insist on niceties in
Although some judges (and I am one) may be highly doubtful as to the value of the jury in most non-criminal cases, especially when the verdicts are general, and although it is entirely appropriate that we should inform the public and Congress of our doubts, we must, until Congress more drastically alters the jury system, accept the general verdict as one of the facts of life. We have no right, because of our doubts, to disregard, either consciously or unconsciously, what I have called its basic postulate. That postulate must govern us, no matter how lacking in reality we may think it. While performing our judicial duties, we must often enforce rules we deem unwise. And so, when on the bench, our private views concerning the wisdom of the general verdict and its necessary implications are as irrelevant as our attitudes towards bimetalism or the transmigration of souls.15 Cf. Holmes, J., in Aikens v. Wisconsin, 195 U.S. 194, 206 (1904): “It was urged farther that to make a right depend upon motives is to make it depend upon the whim of a jury, and to deny the right. But it must be assumed that the constitutional tribunal does its duty. ***”16
If, as I believe we are required to do, we adhere to the basic postulate of the general verdict system, then, where there is a conflict in the evidence, this, I think, follows: (1) Substantial errors in the judge‘s instructions as to the legal rules must be assumed to have resulted in an erroneous verdict unless those errors were so adequately corrected by the judge that we can say that, without doubt, the jury knew that they were to be ignored. (2) If the instructions are confusing and contradictory on a material issue, the jury must be assumed to have been confused and unable to reach a proper verdict. The application of some such rules of thumb to the instant case induces my dissent.
For I see no basis for the belief that, in some unexplained way, the jury penetrated the judge‘s mind and thus learned that, in the last sentence of his charge, he meant to withdraw his former faulty advice. Not that there is no place for repentance; there is room for a more or less unequivocal correction by the judge of a previous mistake, of course; but here the fact of any intention to correct was, to say the least, highly equivocal.
My colleagues, to be sure, stress the fact that the proper statement of the “law” came at the very end of the judge‘s charge. But what justification is there for believing that the last words in a speech are invariably the ones most heeded by an audience? I take it that that is not an irrebuttable presumption, a “rule of law,” i.e., a generalization about facts—founded on observation and experience—no longer open to debate.17 Nor is it, I believe, an established canon of psychology18 (an art which, as yet, is far from becoming a science and is possessed of very few generally accepted canons).
I find it impossible, therefore, to decide that the jury were correctly guided. To say that the jurymen were not misled is to indulge in unverified and unverifiable guessing. I fail to perceive any foundation for my colleague‘s statement that they “entertain no doubt” that the second correct instruction “removed any misconception which may have been engendered in
The best that can be said is that the chances that the jury were not misled are as good as the chances that they were. In such circumstances, it does not seem to me that we should conclude that the error was without substantial harm to plaintiff and that she received a fair trial. The majority opinion says “Whether a subsequent correct charge is sufficient to cure a prior inadvertent error22 is necessarily a matter to be determined in the sound judgment of the appellate court.” I agree, where it is clear that the second charge could have left “no doubt in the minds of the jury as to what the court ultimately declares the law to be.”23 But this is not at all such a case. To say here that the jury‘s mind was cleared of all doubt is to indulge in pure conjecture. And such conjecturing is not a matter for the appellate court.
There are possible two extreme and opposing positions concerning such a case as this: (1) Nothing in the judge‘s charge makes any difference to the jury; therefore even the grossest errors or the most pronounced inconsistencies in the charge are harmless. (2) Everything in the charge must be assumed to be of importance; therefore, even the slightest error is prejudicial. Common sense suggests a middle category: If the evidence is such that all doubts as to the “facts” of the case are negligible and it is fairly apparent that no other verdict than that which was rendered could have been reached by a jury in its senses, then the verdict should not be disturbed except for the grossest inconsistencies in the charge. But that is not this case, for here the evidence was in conflict.
Indeed, my colleagues say, “There were matters for the jury.” Of course there were, since the witnesses flatly disagreed with one another as to the pivotal facts in the case. Accordingly, had the jury brought in a verdict for the plaintiff, I cannot believe that my colleagues would have reversed the judgment on the ground that such a verdict was against the weight of the evidence. I fail, therefore, to understand what they mean when they say “it is difficult to see how” the jury “could properly have reached any other verdict” than that rendered for the defendant. If there had been no prejudicial error, of course that verdict would have to stand. But where, because of misleading instructions, there has been substantial error in a jury trial, it is not, I think, for upper court judges to say that that error should be overlooked because, reading the record, they think that the testimony of one witness is more credible than that of another, especially when the witnesses testified not by deposition but wholly in open court. The Supreme Court decisions, cited above, show that, in jury cases, federal courts must not thus apply the harmless error doctrine.
The previous decisions of this court as to the prejudicial effect of confusing instructions are, I think, in accord with my conclusion. There are, in other federal courts and in state courts, dozens of similar decisions, but it would be tedious to cite them. The majority opinion cites two cases said to be contra: (a) The opinion of Judge Aldrich, in 1911, in Taxi Service Co. v. Phillips, 1 Cir., 187 F. 734, which is distinguishable on its facts; if not, it gives no persuasive reasons for its contrary conclusion. (b) People v. Goldstein, 285 N.Y. 376, 383, 34 N.E.2d 362; it lays down no legal rule but turns on its peculiar facts and does not purport to over-rule earlier New York cases (such as Chapman v. Erie Railway Co., 55 N.Y. 579, 587; Ulrich v. Ulrich, 136 N.Y. 120, 122, 123, 32 N.E. 606 (1892); and Johnson v. Blaney, 198 N.Y. 312, 317, 91 N.E. 721 (1910)) which state the rule I think applicable here. Moreover, as I read Berry v. United States, supra, and related cases, we are not required, on the issue in the instant case, to follow New York decisions pursuant to Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), since we, unlike the state courts, are controlled by the