318 U.S. 109, 117
This case arose out of a grade crossing accident which occurred in Massachusetts on the night of December 25, 1940.1 Diversity of citizenship brought the suit to the federal District Court in New York.2 Respondent Hoffman brought several causes of action individually and as administrator of his wife's estate, alleging negligence under a Massachusetts statute and at common law.3 The trial court submitted three issues to the jury on negligence: failure to ring a bell, to blow a whistle, and to have a light burning in the front of the train.4 The jury returned a verdict in favor of respondent individually for some $25,000 and in favor of respondent as administrator for $9,000.5 The District Court entered judgment on the verdict, which the Circuit Court of Appeals affirmed.6
On December 27, 1940, the engineer of the train, who died before the trial, made a statement at a freight office of petitioners where he was interviewed by an assistant superintendent of the road and by a representative of the Massachusetts Public Utilities Commission.7 Petitioners offered this statement in evidence under the Act of June 20, 1936, claiming it was made in the regular course of business.8 Respondent’s objection to its introduction was sustained by the trial court.9
One of respondent’s witnesses testified on cross-examination that he had given a signed statement to one of respondent’s lawyers.10 Counsel for petitioners asked to see it, but the court ruled that if he inspected the document, respondent could offer the statement in evidence.11 Counsel declined to inspect the statement and took an exception.12
The court charged the jury that petitioners had the burden of proving contributory negligence without distinguishing between the common law and statutory causes of action.13 Petitioners excepted to the charge and requested an instruction that the burden was on respondent, which was refused.14 The Supreme Court granted certiorari to review the three points presented by the petition for a writ of certiorari.15
Whether the engineer's statement was made in the regular course of business within the meaning of the Act of June 20, 1936?16
The Act of June 20, 1936 makes a writing or record admissible if made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.17 Regular course of business means records made for the systematic conduct of the enterprise as a business, such as payrolls, accounts receivable, accounts payable, and bills of lading, not those calculated for use essentially in the court.18
No. The engineer's statement was made two days after the accident at a freight office during an interview with an assistant superintendent and a representative of the Massachusetts Public Utilities Commission. Such accident reports are not typical entries made systematically or as a matter of routine to record events or occurrences for the railroad business.19 Unlike payrolls or bills of lading, these reports have their primary utility in litigating, not in railroading, and are prepared essentially for use in court rather than for the management or operation of the business as such.20
The statement was properly excluded from evidence under the Act.21
Whether the trial court's ruling that inspection of the witness statement would open the door to its admission constituted reversible error?22
No. The document was not marked for identification and is not a part of the record, making it impossible to determine whether the statement contained remarks which might serve to impeach the witness.25 Petitioners therefore have not maintained their burden of showing that any prejudice resulted from the ruling even if the ruling is assumed to have been erroneous.26
The ruling does not constitute reversible error.27
Whether the burden of proving contributory negligence on the common law counts and the Massachusetts statutory counts is governed by New York conflict of laws rules in this diversity action?28
The question of the burden of establishing contributory negligence is a question of local law which federal courts in diversity of citizenship cases must apply under Erie R. Co. v. Tompkins.29 Under New York conflict of laws rules, which the trial court was bound to apply, the burden of proving contributory negligence on causes of action based on the Massachusetts statute is on the defendant.30
Yes. Rule 8(c) of the Rules of Civil Procedure covers only the manner of pleading and does not control the burden of proof, which remains a question of local law.31 For the statutory causes of action the lower courts correctly applied the New York rule from Fitzpatrick v. International Ry. Co. that places the burden on the defendant.32
For the common law counts, petitioners failed to differentiate between the causes of action in their exceptions to the charge or in their requested instruction.33 A general exception is therefore insufficient to obtain reversal where part of the charge was correct.34
The burden of proving contributory negligence is governed by New York conflict of laws rules, and the judgment is affirmed.35