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Plisco v. Union Railroad Co.

decided: June 15, 1967.

JOHN J. PLISCO, APPELLANT,
v.
UNION RAILROAD COMPANY, A CORPORATION



McLaughlin, Hastie and Freedman, Circuit Judges. McLaughlin, Circuit Judge (dissenting).

Author: Hastie

Opinion OF THE COURT

HASTIE, Circuit Judge.

This is an action by a railroad employee against his employer for personal injuries suffered by the plaintiff when, during the course of his work, he slipped and fell on an icy slope. A jury trial resulted in a verdict and judgment for the defendant. Several months after the judgment had become final the plaintiff filed the present motion for a new trial under Rule 60(b) alleging that newly discovered evidence warranted such post judgment relief. After hearing, the trial court denied the motion. This appeal followed.

The accident occurred in freezing weather at a time when the plaintiff was assisting in rerailing a derailed engine. The snow near the engine was hard-packed and the plaintiff fell at a point where the surface was very slippery. A major issue in the case was whether the railroad had used reasonable car to provide the plaintiff a safe place to work.

The alleged newly discovered evidence was the testimony of Thomas Askey, another railroad employee but not a member of the plaintiff's crew, to the effect that before the plaintiff's accident blow-torches used by railroad employees near the derailed engine had caused a considerable melting of snow in the area. And because of the low temperature this melted snow quickly refroze, creating an icy surface.

It is arguable that this evidence that the hazardous walking and working conditions had been caused by abnormal and perhaps unnecessary conduct of railroad employees might have persuaded a jury that the railroad had not used reasonable care to provide the plaintiff a safe place in which to work. Thus, this additional evidence might have changed the result of the trial.

But more than a showing of the potential significance of the new evidence is necessary to justify the granting of a new trial after judgment has become final. Our concern here is with extraordinary relief which should be granted only where extraordinary justifying circumstances are present. More particularly, it must appear that reasonable diligence by the movant before trial would not have brought to light the evidence which he failed to discover until after trial. Flett v. W. A. Alexander & Co., 7th Cir., 1962, 302 F.2d 321, cert. denied 371 U.S. 841, 83 S. Ct. 71, 9 L. Ed. 2d 77; Hartford Accident and Indemnity Co. v. Shaw, 8th Cir., 1959, 273 F.2d 133. In this connection this court has said that newly discovered evidence within the meaning of Rule 60(b) (2) is evidence "of which the aggrieved party was excusably ignorant" at the time of trial. Brown v. Pennsylvania R. R. Co., 3rd Cir., 1960, 282 F.2d 522, 526-527, cert. denied 365 U.S. 818, 81 S. Ct. 690, 5 L. Ed. 2d 696. Indeed, Rule 60(b) (2) is in terms geared to the provisions of Rule 59 regulating new trial motions before judgment becomes final and thus covers only that new evidence "which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)".

The above stated legal considerations are controlling here. The appellant knew that fellow employees who were members of crews other than his own were working at the scene before he arrived and when he was injured. Indeed, he so stated in his answer to pretrial interrogatories. The appellant also testified in support of his motion for a new trial that he saw a "crew from Monongahela Junction" -- the crew to which the would-be supplier of "newly discovered evidence" belonged -- at the scene of the accident, but was unaware that they witnessed the accident.

But most significant of all is the affidavit of Thomas Askey, the new witness whose prospective testimony is said to justify a new trial. Beyond deposing that the icy condition was created artificially by railroad employees using blow-torches, Askey also asserted that he spoke to the appellant about the accident two or three times before the trial and that "certainly I let him know that I had witnessed the accident, and that I was on the premises * * * when it occurred." Thus the very witness whose evidence the appellant calls "newly discovered" within the meaning of Rule 60(b) has effectively refuted that legal characterization. The appellant cannot rely upon the helpful part of the statement of his proffered witness and expect the court to disregard the adverse remainder.

We find no escape from the conclusion that, after Askey identified himself to the appellant before trial as an eye witness, reasonable diligence on the appellant's part would have included questioning Askey to discover whatever information he possessed that was relevant to the disputed claim. It follows that any deficiency in the appellant's proof at trial was the result of this lack of diligence on his part. Therefore, he is not entitled to have an adverse final judgment reopened to permit an unjustifiably tardy supplementation of his case.

The appellant also invokes the general provision of Rule 60(b) (6) authorizing relief from a final judgment for "any other reason justifying relief". However, this case presents no substantial basis for seeking relief other than the desire to supplement the record with Askey's testimony. The appellant's case is no stronger under clause (6) of Rule 60(b) than under clause (2).

One or two additional comments seem appropriate, if to some extent repetitive, in the light of the dissenting opinion. That opinion stresses the fact that the appellant was unaware that Askey had important information about the circumstances of the accident which was unknown to the appellant. However, we think that is not the crucial point. The appellant did know that Askey was on the scene when the appellant arrived and that Askey witnessed the accident. The decisive fact is that the appellant failed to question Askey to discover what he had observed that might be helpful. It is this failure to inquire what information a known witness could supply which prevents Askey's testimony from being such newly discovered evidence as would warrant reopening a final judgment.

Finally, it is to be emphasized that this is not a motion filed within ten days after judgment. It is a request for relief filed long after judgment had become final. One who seeks such extraordinary relief from a final judgment bears a heavy burden. In the circumstances of this ...


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