Moore, Hays and Anderson, Circuit Judges.
Plaintiff, Patrick Keohane, brought this action in the United States District Court for the Southern District of New York pursuant to the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. (1964), for an injury he allegedly sustained while working for defendant, New York Central Railroad Company, as a mail handler and elevator operator in Grand Central Terminal. Judgment was entered in favor of defendant after a jury trial held solely on the issue of liability.*fn1 Plaintiff appeals on the following grounds: (1) exclusion of certain testimony; (2) admission into evidence of a report of the accident; (3) splitting of the trial between the issues of damage and liability; (4) failure of the trial court to inform counsel of its proposed action with respect to his requests to charge; and (5) intemperate conduct of the trial judge which prevented plaintiff from receiving a fair and impartial trial.
We reverse on the basis of plaintiff's first contention -- the exclusion of certain testimony.
Plaintiff was employed by the defendant as a mail handler and elevator operator. He was assigned to work on Track 14 and on an elevator commonly referred to as the "Queen" elevator, which was adjacent to Track 14. His work called for him to load skids with mail from a chute located above Track 14; and then to roll the loaded skid approximately 54 feet to the Queen elevator. He would then put the skid on the elevator. The doors of the Queen elevator recess into the ceiling and the floor rather than opening to the side. Appellant would next operate the elevator so as to ascend to the Post Office located in the Grand Central Terminal where he left the loaded skid. He returned by means of the same elevator, sometimes with an empty skid, and repeated the operation. On his work shift plaintiff was the only man to work on this particular track with this particular elevator.
Plaintiff testified that on the day of the accident "something"*fn2 caused the T-Bar of the skid to swing to the left as he was pulling the skid into the elevator. He felt a severe sting in his right hip. He claimed to be disabled by the injury and never returned to the job. There were no witnesses to the accident other than the plaintiff himself.
The defense called no witnesses. It introduced into evidence certain statements made by the plaintiff to its agent shortly after the accident, and a report of the accident.
Plaintiff's case depended on convincing the jury that the accident indeed occurred, and that it resulted from a defective condition of the elevator caused by defendant's negligence.*fn3 Plaintiff attempted to show that the elevator was operating defectively both before and after the accident, and, thus, by inference, at the time of the accident. To this end, plaintiff called three witnesses familiar in varying degrees and in varying capacities with the elevator area.
Samuel S. Aidlin, a professional engineer, was duly qualified as an expert witness on elevators. He attempted to describe the conditions he observed when he examined the elevator area some 18 months after the alleged accident and was prepared to state, as an expert, approximately how long these conditions existed. The trial judge sustained a motion to strike Aidlin's testimony as to his findings, possibly on the ground that what he found differed from what the plaintiff testified had caused the accident.*fn4 In an attempt to cure whatever defect the trial judge found in Aidlin's initial testimony, counsel asked the witness what he observed "with reference only to the elevator door" and "with reference only to the markings on the top of the door." Defendant's objection was sustained in both instances. Since the only description Aidlin was permitted to make of the area was stricken, there was no occasion for him to state how long he thought the defects he discovered had existed.
Fred Barlow, an employee of defendant for 29 years, had operated the elevator in question some five years before the accident and returned to operate it approximately four months after the accident. Counsel's questions to Barlow were quite inartistic, and he was forced to make a formal offer of proof at side bar. Counsel stated:
"This condition that prevailed, that showed in this picture, has prevailed when he was working at that time, and it is currently there, has never been fixed, and I am trying to show it has prevailed for five years. It was there before the accident, during the accident and after the accident."
He then asked Barlow if he was familiar with the condition of the elevator on the date of the accident. Barlow stated that he was, but counsel failed to ask him to describe the conditions. After a few more questions the trial judge ...