Circuit Court of Appeals, Second Circuit.
*213 Charles E. Miller, of New York City, for plaintiff in error.
Humphrey J. Lynch, of New York City (Sol Gelb, of White Plains, N. Y., of counsel), for defendant in error.
Before MANTON, HAND, and MACK, Circuit Judges.
HAND, Circuit Judge (after stating the facts as above).
It appears to us that the case is ruled by Pedersen's Case, 33 S. Ct. 648, 229 U.S. 146, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, and Smith's Case, 39 S. Ct. 396, 250 U.S. 101, 63 L. Ed. 869, so far as concerns the decedent's employment. The only distinction between the case at bar and Pedersen's Case is that Pedersen was fetching a rivet to a bridge on which he was himself working. Any importance that circumstance may be thought to have is met by Smith's Case, in which it was absent. Smith was the cook of a repair gang, and never did work upon the tracks or bridges of any kind whatever. His sole relation to interstate commerce was that he cooked the meals for the gang and lived in the work car with them. It appears to us to be a matter of indifference whether the workman serves his fellows' stomachs with food or their hands with materials.
The defendant especially relies upon Harrington's Case, 36 S. Ct. 517, 241 U.S. 177, 60 L. Ed. 941, in which the injured workman was engaged in carrying coal to bins where it was to be used in interstate and intrastate engines. This case should, however, be read with Collin's Case, 40 S. Ct. 450, 253 U.S. 78, 64 L. Ed. 790, and Szary's Case, 40 S. Ct. 454, 253 U.S. 86, 64 L. Ed. 794. These came up together from this court, and upon an equal division of the judges who decided them. Collins operated a signal tower, and was pumping water to a feed tank by means of a gasoline engine, which caught fire and injured him. After some uncertain language as to how far the employment in the signal tower might color that at the pump, we understand the court, on page 85, meant to declare that the pumping of itself was interstate commerce. Szary had been drying sand for engines, and was engaged in carting away some ashes, when he was struck while pausing to take a drink. As we understand the case, it was thought enough that he was generally engaged in drying sand for interstate and intrastate engines; certainly it was said to be unimportant what the next engine should be that he was to sand. Harrington, on the other hand, had not yet brought his coal to any common reservoir, and this may well be the distinction. If so, Harrington's Case does not apply here, because some of the lumber had actually been laid in place, awaiting the carpenters. In any event, we regard the two later cases as controlling. The cases are full of casuistry, which we would avoid as far as possible. We cannot see any ground for drawing a distinction between a sequence of activities performed by a single man and the same sequence when divided between two.
The supposed errors in the admission of evidence are not substantial. The allowance of two leading questions and of the testimony of Sansone and Cannon call for no more than an allusion. The other rulings sustained objections to questions which called for the opinion of the witnesses. These were probably correct, according to the orthodox American canon, and in any event the *214 substance of the evidence ruled out either got before the jury or was unimportant. But in fact the questions excluded were reasonable, and it would have been better to allow them. The truth is, as Mr. Wigmore has observed at length (sections 1917-1929), that the exclusion of opinion evidence has been carried beyond reason in this country, and that it would be a large advance if courts were to admit it with freedom. The line between opinion and fact is at best only one of degree, and ought to depend solely upon practical considerations, as, for example, the saving of time and the mentality of the witness. It is hardly ever reversible error to admit such evidence; its foundation may generally be as conveniently left to cross-examination. Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the "facts" in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose.
It is a good rule as nearly as one can, to reproduce the scene as it was, and so to correct against the personal equations of the witnesses. But one must be careful not to miss the forest for the trees, as generally happens, unless much latitude is allowed. In the case at bar it would have been better to allow the conductor to say whether he could have felt the jerk where he was standing, and whether it was necessary for him to give a starting signal in addition to the movement of the dwarf switch. Both these perceptions could be otherwise elicited only by a disproportionate amount of nice examination, in which his real contribution to the truth was likely to be lost. In fact, they were not brought out at all, and the plaintiff, by houghing at the questions, succeeded in suppressing what he had to say in the only way he could probably have said it. But, except in extreme cases, where we can see that harm is done, all such matters are in the discretion of the trial judge.
The last point is of the charge. The only question of fact that the jury had to decide was whether, when the decedent tried to board the car, he was jerked off by a sudden jolt. If this happened, the plaintiff might recover; if it did not, she could not. It was proper, perhaps it was necessary, to add that the decedent assumed the risk of boarding moving trains, though really that would have been included in a bare statement of the single relevant issue. The charge was not, indeed, so straitly confined; but we think that, when coupled with the defendant's requests, which were given, the jury were advised clearly enough that this was what they were to decide. Indeed, the case was so simple that, in the absence of some actively misleading instructions, it is hard to see how they could have gone astray. We are, indeed, tempted to reach out against a verdict which is very clearly excessive, and which we should reduce, if we could; but, that being beyond our proper powers, we decline to strain at possible irregularities in the conduct of the cause, which we should pass, had the verdict been lower, or had the District Judge reduced it.
Judgment affirmed.
