Plaintiff, as Administratrix of the Estate of Marion Schillie, brought this action to recover damages for the death of Marion Schillie, her husband, who was killed while working for the defendant Railway Company in the repair of defendant’s railroad bridge at Topeka, Kansas. Negligence was charged under the Federal Employers’ Liability Act, 45 U. S.C.A. § 51 et seq. A jury returned a verdict for the defendant. From the judgment entered pursuant to that verdict this appeal was taken.
Deceased was a member of a steel bridge repair gang. At the time of his death he was engaged in doing riveting work on the bridge at Topeka. That work required the use of a scaffold. The scaffold was suspended from the top longitudinal steel beams of the bridge by ropes. To construct the scaffold ropes were attached to each end of two wooden beams somewhat longer than the width of the bridge. The ropes were then placed over the top longitudinal steel beams of the bridge and the ends of the wooden beams drawn up to the proper height, the wooden beams extending across the bridge at right angles to the rails. Wooden planks were then placed upon these wooden beams, thus forming a platform upon which riveters worked in installing rivets in the upper steel structural members of the bridge.
It was necessary that the scaffold platform be level. To accomplish that it was necessary that one of the workmen climb up'a steel member of the bridge to a sufficient height to bring his eye to the height the floor of the scaffold was to be and, by sighting, direct the adjustment of the suspension ropes upward or *812 downward until the wooden beams which were to support the floor boards of the scaffold were each at the same height from the top of the bridge and trans-versally level. Deceased was doing that at the time of his death, which occurred in the following manner.
The scaffold now involved was to be suspended at one end of the bridge. Sloping steel members two feet in width rose from the longitudinal steel floor members of the bridge to the top of the superstructure of the bridge on each side at an angle of 53 degrees, connecting at the top with a perpendicular steel member and the longitudinal top member of the superstructure. These two sloping steel beams were called batter posts. On each side of each of these batter posts was a flange extending out three or four inches from the sides of the boxlike steel batter post. A number of rivet heads extended above the otherwise smooth upper surface of the batter posts. As was customary for workmen engaged in tiffs work to do, deceased climbed up one of the sloping batter posts, using the rivet heads as footholds and holding to the flanges on each side by his hands. When he reached the proper height to do the sighting, he leaned to the inside of the batter post to direct the leveling of the wooden beams and fell to the floor of the bridge, receiving injuries resulting in his death.
Plaintiff charged negligence in that defendant negligently (1) failed to equip the batter post with adequate handholds, footholds or steps, or to provide a reasonably safe scaffold from which to work; (2) failed to furnish adequate safety devices to prevent deceased from falling from the batter post, or to catch him in the event he did fall from the post; (3) required deceased to climb the batter post when defendant knew or should have known that in so doing his life would be unnecessarily endangered.
The assignments of error are (1) that the trial court erroneously excluded evidence showing that safety devices consisting of grab-iron steps were placed on the upper sides of the batter posts on one of its steel bridges located at Sibley, Missouri; (2) that evidence to the effect that the batter post without grab-iron steps was not reasonably safe, and that such steps thereon would have made it reasonably safe, was erroneously excluded; (3, 4) that evidence to the effect that a portable adjustable platform on wheels, or a hydraulic hoist platform, or a “hi-way” railway motor car, could have been furnished and would have made the working conditions reasonably safe, and that the use of such devices was practical, was erroneously excluded; (5) that the trial court erroneously admitted evidence that defendant’s witnesses, members of the steel bridge crew, had never heard of or known of a man falling from a batter post until deceased feh and that one of those witnesses had never fallen from a batter post; (6) fhat error was committed in failing to sive an instruction requested by plainfhf defining negligence; and (7) that fhe court erred in not sustaining plaint*® s objection to defendant’s argument f° the jury to^ the effect that deceased assumed the risk of falling, and erred ™ failing to give plaintiff’s requested instruction negating the doctrine of assumption of risk.
In determining the propriety of the exclusion of evidence, Rule 43(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A. § 43(a), will be applied. Thereunder
“ * * * All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits jn equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most' convenient method prescribed in any of the statutes or rules to which reference is herein *813 made. The competency of a witness to testify shall be determined in like manner.”
The issues of fact which the parties were presenting to the jury for determination are of importance in considering the admissibility of the evidence that defendant’s Sibley bridge was equipped with grab-iron steps on the batter posts. Plaintiff was making the assertion, among others, that the failure to put grab-iron steps on the batter posts constituted negligence. Defendant contended it was not negligent and relied upon proof that it was customary not to so equip batter posts to absolve itself from the charge of negligence. To emphasize its position, defendant offered evidence that on no batter posts such as this one had the steps ever been attached. It had attached the steps on the Sibley bridge. Plaintiff endeavored to show that defendant had so equipped its Sib-ley bridge. The court excluded the evidence upon the grounds that the batter posts on the bridges were dissimilar and that the existence of the grab-iron steps on the Sibley bridge was only evidence of an isolated instance and did not tend to show a custom contrary to defendant’s custom. The batter posts on the Sibley bridge were four feet wide instead of two, as on the Topeka bridge. Plaintiff offered evidence that the difference in width did not alter the necessity to have the steps in order to render the batter posts reasonably safe. But this evidence was excluded. Defendant had witnesses who testified that no one had ever been known to fall from a batter post such as those on the Topeka bridge until deceased fell.
Defendant supports the rejection of this evidence on the ground that the receipt or rejection of such evidence is largely discretionary and an abuse of discretion does not appear. The cases cited in support of this argument, notably Lake Superior Loader Co. v. Huttig Lead & Zinc Co.,
On the question of whether this evidence was properly excluded because it tended only to show an isolated instance and not a custom, defendant cites Smith v. Fordyce,
”An examination of many of the Missouri cases on the subject leaves us with the conviction that evidence such as that under discussion has not been held to be inadmissible under the circumstances of this case.- The’defendant was contending that the universal custom was not to put grab-iron steps on bridges like the Topeka bridge. Plaintiff sought to show that -there was no substantial dissimilarity between the safety of the two-foot-wide batter posts on the Topeka bridge and the four-foot batter posts on the Sibley bridge, and that defendant had equipped the Sibley bridge with grab-iron steps ’ for safety purposes. Plaintiff offered this evidence in her case in chief. The objection was that there was no similarity between the batter posts on the two bridges, and that such evidence was not proper proof to show that .the failure to have grab-irons or steps on the batter post from which deceased fell was negligence. Proof of a custom contrary to that, followed is competent evidence on the question of reasonable care. As an isolated instance the evidence offered was not proof of such a custom and if offered for that purpose alone could have been properly excluded. The trial court probably assumed that when offered in chief it was offered for that purpose alone. If such evidence of an isolated instance is offered at a proper time and sufficient similarity of conditions is shown to exist, it is admissible not as proof of a custom but as rebuttal in contradiction of the asserted universal custom to the contrary, and the implication and inference that such a safety device was unheard of on .batter posts like those .on. the Topeka bridge. ....
Two’ witnesses were called by plaintiff to testify that thé batter post on the Topeka bridge was not reasonably safe without grab-iron steps. Their qualification as experts in that regard does not appear to have been questioned.- The testimony was excluded upon the ground that it was not a proper subject for expert testimony. The question for the jury to decide was whether a two-foot-wide steel batter post with a flange on each side and only rivet heads for footholds, inclined upward at an angle of 53 degrees, was reasonably safe for workmen to climb. Expert testimony is appropriate and proper when the subject is one which a person of normal experience and qualification — a juror — would not be able to decide without the technical assistance of one having unusual knowledge of the subject by reason of skill, experience or education in that particular field. When the subject of inquiry is one which common knowledge would enable one to decide, it is not a proper subject for expert testimony. Redding v. Long-Bell Lumber Co., 8 Cir.,
The Topeka bridge is not on the main line of defendant’s railroad. There were four- regular train move-ments; across it a- day, and some addition
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al irregular unscheduled movements. Plaintiff offered the testimony of two witnesses to show that a portable adjustable platform on wheels or on a “hi-way” railway motor car could have been practicably used and would have furnished reasonably safe working conditions for deceased. This evidence was excluded upon the ground that the witnesses were not shown to be qualified to express an expert opinion on the feasibility or practicability of using this sort of equipment while the bridge was in use for the movement of trains thereon. It appears that one of the witnesses, Joseph J. Feuchter, testified in the case of Tatum v. Gulf, M. & O. R. Co.,
Over the objection of the plaintiff that such testimony was “not a proper test of ordinary care,” the trial court admitted the testimony of several witnesses for the defendant, members of the deceased’s bridge gang, that they had never known, or had never heard of, a man falling from a batter post before deceased fell. Plaintiff contends the admission of this evidence was error. Defendant challenges the sufficiency of the objection and asserts that the evidence was properly admitted. A similar objection was treated as sufficient to challenge the propriety of the bearing of such evidence on proper care or lack thereof in Friedman v. United Rys. Co. of St. Louis,
Over a long period of time in a number of cases the Missouri courts have consistently condemned the admission of such evidence and have as consistently held its admission to be error. Kirch-graber v. Lloyd,
“But to allow one accused of maintaining a dangerous structure to exculpate himself by showing that up to the accusation on trial no one had suffered from it would go far towards announcing that one was never liable for the first injury, * * *_>»
The ground advanced for the admission of this type of evidence is that since evidence of other accidents of like character, caused by the same condition or instrumentality and occurring under substantially the same conditions, is admissible to show the defective and dangerous character of the particular instrumentality or place, that a defendant has the right to introduce converse evidence that no other accidents occurred. Because of the St. Louis Court of Appeals in a carefully considered opinion in Blackwell v. J. J. Newberry Co.,
Plaintiff refers us to no federal court cases on the subject and asserts there is
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no rule in the United States courts under which this evidence would be admissible. Defendant relies on Martucci v. Brooklyn Children’s Aid Soc.,
The Martucci case holds such evidence to be admissible for the purpose now under consideration. However, it does not purport to announce the rule it applies as its own or as a general rule. It cites as authority two New York State cases, De-Salvo v. Stanley-Mark-Strand Corp.,
Denver Park & Amusement Co. v. Pflug did not discuss this rule of evidence. It involved the sufficiency of the evidence to support a verdict based on negligence. American Agr. Chemical Co. v. O’Donnell Transp. Co., supra, does not discuss the general rule in federal courts and may have been based entirely on the local rule in New York. We are referred to no case which indicates that a rule of evidence has been applied in the courts of the United States under which such evidence is admissible.
A number of states have adopted a rule of evidence under which this evidence is admitted. An annotation of a number of State Court decisions is found in
In the recent case of Chicago, Rock Island & Pacific R. Co. v. Lint, 8 Cir.,
“While custom or usage may not be controlling as fixing the standard of care it may be accepted (by the court or jury) where the Custom or *818 practice is not in itself negligent or in disregard of the safety of the employee.”
It is apparent from the quotation from McGivern v. Northern Pacific that that case did not deal with the precise question now under consideration.
Obviously in Chicago, R. I. & P. R. Co. v. Lint the evidence was admissible because it was clearly admissible under the law of Minnesota where the case was tried. Nubbe v. Hardy Continental Hotel
System,
' Passing, without now considering, the question of whether Rule 43(a) intended that new rules of evidence adopted in a United States Court since the enactment of Rule 43(a) should constitute “rules of evidence heretofore applied” in suits in equity, until and unless the Supreme Court speaks to the contrary we reach the conclusion that we should not treat C. R. I. & P. v. Lint as opening the gate to the admission of this evidence in United States Courts in states where it is clearly not admissible, especially since that question was neither involved nor considered in the Lint case.
We find no justification in the adjudicated cases in the Federal Courts for holding that there is .an established rule of evidence in the United States Courts under which this evidence is admissible under Rule 43(a). The rule of evidence of the state in which the case was tried must therefore be applied. Since the evidence was not admissible under the Missouri rule its admission in this case was error. Its admission was no doubt prejudicial.
The assignment that the court erred in refusing to give plaintiff’s requested instruction defining ordinary care requires no serious consideration. The trial court could have with propriety amplified the charge in this particular, but the charge as given was not fatally deficient.
Upon retrial the question raised concerning the propriety of a portion of defendant’s argument to the jury is unlikely to arise and need not be considered.
For the reasons stated, the cause is remanded for a new trial.
Notes
. Although his name is there spelled Fuechter, it
was
obviously the same man.
. Golden v. City of Clinton,