Before CLARK, WATERMAN and MOORE, Circuit Judges.
The plaintiff, United States of America, as assignee of a personal injury claim of its employee, Joseph Garcia, brought this action for negligence against the defendant, New York Foreign Trade Zone Operators, Inc. From a judgment entered upon a jury verdict in favor of the defendant, the plaintiff appeals.
On the date of his injury, January 20, 1957, Joseph Garcia was employed as a waiter aboard the USNS General W. G. Haan, which was then docked at Pier 16, Stapleton, Staten Island, in New York harbor. The defendant owned and operated the pier, which was 1000 feet long. A warehouse extended almost the full length of the pier and spanned its entire width except for a narrow space used as a pathway, called a "stringpiece," five to eight feet wide, between one side of the warehouse and the edge of the pier.
Under its dockage contract with the Navy the defendant promised to provide seamen with access to the General Haan and to keep the means of access in good condition. During the weekends the warehouse was locked, so seamen had to walk along the stringpiece in order to travel to and from the ship. On a Sunday afternoon while walking along the stringpiece toward the ship Garcia slipped and fell. He was injured seriously.
Under the Federal Employees' Compensation Act, § 1, 39 Stat. 742 (1916), as amended, 5 U.S.C.A. § 751 (1958), Garcia received compensation for his injury from the Government.
As required by statute, he then, on July 7, 1958, assigned to the United States any claim he might have against the defendant that the defendant was legally liable in damages for his injuries. Federal Employees' Compensation Act § 26, 39 Stat. 747 (1916), as amended, 5 U.S.C.A. § 776 (1958), as amended. Pursuant to this assignment the United States, on August 6, 1958, brought the present action against the defendant. The Government alleges that Garcia's injury was a result of the defendant's negligent failure to remove snow and ice that had accumulated on the stringpiece. The defendant maintains that the snow and ice had been removed at the time of the accident and that Garcia's own negligence had contributed to his injury.
The case was tried in November 1960. Garcia and his fellow-seaman Matthews, who had seen the accident, testified to the icy condition of the stringpiece, and that Garcia fell because the ice caused him to slip. In addition, the Government produced as a witness Garcia's immediate superior, Gordon, the Haan's chief steward, in order further to substantiate its contention that there was ice on the stringpiece at the time of Garcia's mishap. On January 21, 1957, the day following the accident, Gordon had prepared an official report of the event, as statute and regulation required him to do. Federal Employees' Compensation Act § 24, 39 Stat. 747 (1916), as amended, 5 U.S.C.A. § 774 (1958), as amended; 20 C.F.R. § 1.3. The report was made by filling in blank spaces on a government form provided for the purpose. It contained Gordon's account of the accident*fn1 and a brief signed statement by Matthews.*fn2 After Gordon identified this report, it was offered in evidence while he was on the witness stand, and, over objection, was admitted into evidence under the exception to the hearsay rule provided by the Federal Business Records Act, 28 U.S.C. § 1732 (1958). After testifying that the report had been based not only on information he had received from others but also upon his own personal knowledge obtained from his own investigation, Gordon was dismissed as a witness without ever otherwise being asked to testify to his knowledge of the accident or to any other matters contained in his report. The contents of the report were not revealed to the jury.
Three days later, after the trial evidence had been closed and after the court had ruled upon the requests to charge that the parties had submitted to it, the court reversed its prior ruling, excluded Gordon's report, and forthwith submitted the case to the jury without permitting the jurors to see it, or permitting the report to be read to them.
As we have said, one Matthews, a fellow-seaman, testified to the accident as an eye-witness. He was the first witness, and during cross-examination, after a number of questions had been asked designed to bring out that Matthews' recollection of the occurrence was somewhat hazy, the following took place:
"Q. Now, when was the first time you talked to anybody about this case, Mr. Matthews? A. I think it was last - last summer, the Federal Bureau investigator came to my home.
"Q. And at that time did you tell him about this other man that was with you? A. At first I couldn't remember anything until he showed me this copy which I had signed in making out the accident report.
"Q. Just a minute. You say until this man came and showed you something you couldn't remember anything about this accident? A. It was a very long time before, April, 1957, until last year.
"Q. And this man when he came to your house did he tell you how the accident happened? Did he ...