Robert Manning v. New York Telephone Company, 388 F.2d 910, 2d Cir. (1968)
Robert Manning v. New York Telephone Company, 388 F.2d 910, 2d Cir. (1968)
Robert Manning v. New York Telephone Company, 388 F.2d 910, 2d Cir. (1968)
2d 910
Frank A. Fritz, New York City (Thomas C. Platt, Averill M. Williams and
Bleakley, Platt, Schmidt, Hart & Fritz, New York City, on the brief), for
appellant.
E. Stewart Jones, Troy, N.Y. (Morris Hirschhorn, New York City, on the
brief), for appellee.
Before SMITH, KAUFMAN and HAYS, Circuit Judges.
HAYS, Circuit Judge:
Plaintiff claimed that his accident was caused by a loose step located on the
west side of the pole. He testified that the step moved slightly when he placed
his foot on it, causing him to lose his balance and fall. Defendant's witnesses,
who were plaintiff's co-workers, testified that plaintiff was on the southeast
side of the pole just prior to the accident; from this position plaintiff could not
have used the step claimed to be defective.
The telephone company's principal contention on appeal is that the trial court's
The telephone company's principal contention on appeal is that the trial court's
charge to the jury emphasized plaintiff's version of the accident while wholly
ignoring defendant's version. We are satisfied that in the circumstances here
presented the court's failure to refer explicitly to defendant's evidence is not
cause for reversal. The references to plaintiff's version of the facts were very
brief. Indeed, the trial judge stated early in his charge that he did not intend to
go into the evidence in detail. Moreover, the manner in which plaintiff's version
was presented in the charge was such that, to a jury which had heard the
evidence and summations, the defendant's version must have been implicit.1
Appellant also claims that the court virtually directed a verdict for plaintiff by
charging as follows:
'Now, seeing that the evidence satisfies you the step was loose and that the
plaintiff stepped upon it and there was a substantial, proximate reason why he
fell * * *'
After the trial the trial judge in editing the transcript of the charge, stated that
he had used the word 'assuming' and not the word 'seeing.' Defense counsel's
failure to object at the conclusion of the charge not only supports the judge's
view but prevents our acting even if we accept appellant's version. See Rule 51,
F.R.Civ.P.
It is urged, however, that the wood expert's testimony was without reasonable
basis and incredible as a matter of law. On the present record we find no reason
to depart from the usual rule that it is for the jury to determine the credibility of
expert testimony. See Dicker v. United States,122 U.S.App.D.C. 158, 352 F.2d
455 (1965), cert. denied, 383 U.S. 936, 86 S.Ct. 1067, 15 L.Ed.2d 853 (1966);
Wong Ho v. Dulles, 261 F.2d 456 (9th Cir. 1958).
9
Finally, appellant argues that it owed no duty to plaintiff because plaintiff was
not an invitee with respect to its pole steps. However, a utility which is joint
occupant of a utility pole owes a duty of reasonable care to employees of the
other utility who use the pole. See Murphy v. Rochester Telephone Co., 208
App.Div. 392, 203 N.Y.S. 669 (4th Dep't 1924), aff'd mem., 240 N.Y. 629, 148
N.E. 735 (1925); New England Tel. & Tel. Co. v. Reed, 336 F.2d 90, 94 (1st
Cir. 1964); Rose v. Missouri District Telegraph Co., 328 Mo. 1018, 43 S.W.2d
562, 81 A.L.R. 400 (1931). The sole case cited by appellant, Chesapeake &
Potomac Telephone Co. v. Bullock, 182 Va. 440, 29 S.E.2d 228 (1944), is
readily distinguishable. There, the court recognized that the plaintiff was an
invitee but denied recovery because the accident resulted from plaintiff's using
as an aid in descending the pole a wire which was not intended for that purpose
and which he had been instructed not to use.
10
Affirmed.