296 F2d 634 Mulligan v. Baltimore & Ohio Railroad Co

296 F.2d 634

Charles M. MULLIGAN, Plaintiff-Appellant,
BALTIMORE & OHIO RAILROAD CO., Defendant-Appellee.

No. 14442.

United States Court of Appeals Sixth Circuit.

Nov. 14, 1961.

C. Richard Grieser, Columbus, Ohio (Dombey, Tyler, Richards & Grieser, by Robert C. Tyler, Columbus, Ohio, on the brief), for appellant.

Philip J. Schneider, Cincinnati, Ohio (Waite, Schindel, Bayless & Schneider, John M. O'Mara, Cincinnati, Ohio, on the brief), for appellee.

Before MARTIN, MAGRUDER and CECIL, Circuit Judges.


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This appeal involves an action by plaintiff-appellant, Charles M. Mulligan, against the defendant-appellee, Baltimore and Ohio Railroad Company, under the Federal Employers' Liability Act (51 et seq., Title 45 U.S.C.A.), and the Safety Appliance Act (1 et seq., Title 45 U.S.C.A.)


The case was tried on an alleged violation of the Safety Appliance Act and the gist of the plaintiff's claim is that the defendant permitted the use of a car with an inefficient brake.


Mulligan was a conductor of long experience with the defendant and the boss of a crew condcuting a switching operation. At the time of the accident, he was riding the car in question which had been cut loose from the engine and was coasting at about two miles per hour toward a cut of four cars to which it was to be coupled. It was Mulligan's duty to control the speed of the car with the hand brake. Upon the car's impact with the standing cars, he fell and received the injuries of which he now complains.


Counsel for the plaintiff-appellant contends that the trial judge erred in admitting evidence over his objections of 'collateral matters of payment from the Relief Department and retirement, especially where such matters formed no basis for impeaching or testing the credibility of plaintiff.'


There was an abundance of evidence that the brake in question was in good condition and not defective. We find that substantial justice was done and that there was no prejudicial error in the admission of this testimony, which affected the substantial rights of the plaintiff. (Rule 61, F.R.Civ.P., 28 U.S.C.A.)


Other alleged errors are that the trial judge failed to admonish the jury and instruct it with reference to the purpose and limitations of the objectionable testimony, at the time it was admitted during the trial and when counsel for the defendant referred to it in his argument to the jury.


The instructions were not printed in the appendices but it appears that no request was made for such instructions. No error may be assigned for failure to give an instruction to the jury, if it is not requested or objection made before the jury retires. (Rule 51, F.R.Civ.P.) (See also Rule 61, F.R.Civ.P.)

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Finding no prejudicial error in the record the judgment of the District Court is affirmed.