Before McLAUGHLIN, STALEY and FORMAN, Circuit Judges.
Appellant, Carl P. Wagner, was injured while an employee of the Pennsylvania Railroad Company. At that time he was working with two other employees, John Moskiewski and Louis Belajac, at the task of changing the wheels of a freight car. His job was to operate an automatic four wheeled Baker crane with which he had lifted the bolster of the car so that its weight was borne by the crane. He got off the crane for the purpose of helping Belajac change the springs of the car. While he was in a crouched position between the car and the crane, the latter moved against him pinning him between it and the freight car, causing him to be severely injured. He sued the Railroad under Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.
At the trial Wagner contended that the brakes on the crane gave way due to the negligence upon the part of the Railroad, among other things, in failing to exercise reasonable care to inspect and discover the defective condition of the brakes. The defendant contended that it had made proper inspection and mainly defended on the theory that Wagner brought about his injuries himself by violating its safety rule 4113 which states:
"Leaving hoisting equipment unattended with load, bucket or magnet suspended, is prohibited."
The jury returned a verdict in favor of Wagner in the sum of $20,000, having reduced it from $25,000 on finding contributory negligence to the extent of 20%.
Subsequently Wagner moved for a new trial under Rule 59, Federal Rules of Civil Procedure, 28 U.S.C.A. and for relief from judgment under Rule 60(b). He also filed a petition requesting the court to set a hearing date for the taking of testimony in connection with the motion under Rule 60(b).
After considering the arguments of counsel for both sides, the trial court filed an opinion in which it declined to disturb the judgment and ordered Wagner's motions for new trial and relief from judgment denied, and the petition for hearing in support of the motion for new trial dismissed.
Wagner appealed, claiming, among other things, that the trial court erred in sustaining the objection of the Railroad's attorney to a question propounded by him on cross-examination. The Railroad had called Frank Reiser, Wagner's gang foreman, as its witness. He answered questions on direct examination relating to the practice of changing wheels on freight cars and identified a booklet entitled Safety Rules and Rule 4113 contained therein. The cross-examination question, objection to which was sustained by the court, was as follows:
"Q. So even if Wagner were on this crane and it had been Belajac or Moskiewski putting the springs in, one of them would have been hurt by the crane."
Wagner's attorney argued that the question was proper on his theory that the violation of the safety rule was not the proximate cause of Wagner's injuries. He contended that an affirmative answer to the question would have demonstrated that the violation of the safety rule to which Reiser testified on direct examination was not the proximate cause of Wagner's injuries and that therefore such violation would be entitled to no weight in the jury's consideration of contributory negligence.
To buttress the propriety of the question, counsel quoted from Sierocinski v. E. I. Dupont de Nemours & Co., 3 Cir., 1941, 118 F.2d 531, 536, 537, as follows:
"It is of the office of cross-examination to appraise the weight, if any, to be ascribed to the inferences to be ...