Kalodner, Staley and Adams, Circuit Judges. Adams, Circuit Judge (dissenting).
This case comes to us upon the appeal by defendant below, Erie Lackawanna Railroad Company ("Erie"), from a judgment in the amount of $340,000 in favor of plaintiff-appellee. The action was brought by plaintiff as administratrix of her husband's estate for wrongful death alleged to have been caused by Erie's negligence.
The decedent, Donald V. McGrath, was killed on February 17, 1966, when he was struck by one of Erie's trains after alighting from a coach on another Erie train. He lived in New Jersey and had begun commuting between New York and Erie's Glen Rock Station. He had not taken the train to or from Glen Rock previous to February 14, 1966, three days prior to his death.
On the evening of February 17, 1966, Erie Train No. 1177, consisting of a diesel and two coaches out of Hoboken, arrived at the Glen Rock Station. At this station there are two sets of tracks, running east and west. Erie No. 1177 was traveling on the west-bound track. On arriving at Glen Rock, the engineer went beyond the station platform so that the first coach was stopped with its front end exits giving on to a paved road adjacent to the western end of the station.
The decedent had been riding in the first coach. Apparently, all passengers existed the coach from the front or rear right staircases, except for the decedent who alighted from the head of the coach on the left. After the train had stopped, an Erie freight train passed going towards Hoboken on the other set of tracks. Just before this train went by, a passenger sitting by the window on the left side of the first coach saw a man outside and then saw him struck by the oncoming locomotive. Decedent's body was found between the tracks in front of the rear wheels of the first coach on Erie No. 1177.
On this appeal, Erie contends that the district court erred in admitting into evidence a photograph of decedent's young son; that the district court erred in denying Erie's motion for dismissal on the grounds that there was no evidence to support a verdict of liability; that the district court erred in its instructions to the jury with regard to a railroad's statutory duty as to audible signals; and that the verdict as to damages was excessive and based in large part upon evidence of a speculative nature improperly admitted by the district court.
A photograph of decedent's son, taken a year and one-half prior to the trial when he was 4 1/2 years old, was admitted into evidence over Erie's objection. Erie contends that the admission of the photograph constitutes reversible error because it had no probative value and was intended solely to arouse the emotions and sympathy of the jury. Appellee argues that the photograph was relevant evidence and that since the child could have been personally present in the courtroom throughout the trial but was not, the admission of his photograph did not result in a denial of substantial justice to Erie within the purview of Rule 61 of the Rules of Civil Procedure.
With regard to relevance, appellee argues that under the New Jersey death action statute,*fn1 a material fact at issue in the calculation of damages is the matter of dependency and further, that in the case of surviving infants, a recoverable item is the value of the loss to the infant of the care, nurture and education which he otherwise would have obtained from the deceased parent. Appellee contends that the child's appearance was relevant to the jury's determination of the period of dependency and other factors bearing upon the amount of pecuniary loss.*fn2
The admission into evidence of a photograph is largely within the discretion of the trial judge. Barney v. Staten Island Rapid Transit Rwy. Co., 316 F.2d 38 (C.A.3), cert. denied, 375 U.S. 826, 84 S. Ct. 67, 11 L. Ed. 2d 58 (1963). While its relevance was concededly somewhat remote, we cannot say that the admission of the child's photograph into evidence in the instant case constituted an abuse of that discretion.*fn3
Erie next asserts that there was insufficient evidence adduced as to its liability for decedent's death to have been submitted to the jury or to support a verdict of liability. Erie's argument begins with an analysis of the plaintiff's case which it reduces to two separate theories of liability. The first and main theory is that Erie violated its duty to provide its passenger with a safe place to alight based on the contention that it extended an implied invitation to alight from the left into an area made dangerous by virtue of the train having overshot the station. A second theory is based on the failure of the second train to make audible signals as required by statute.
With regard to the theory of implied invitation, Erie argues that the crucial question was whether or not the passage bar on the left side of the vestibule*fn4 was, in fact, open prior to the time decedent alighted, thereby extending an implied invitation to alight into the dangerous area. Erie's conductor testified that he had placed the bar across the left exit on leaving the station two stops prior to Glen Rock and did not check its position again. Erie asserts that there was a presumption that the bar was down when the train arrived at Glen Rock and that plaintiff had the duty to rebut the presumption and adduce evidence that the passage bar was open to the decedent. After a review of the relevant testimony on this point, Erie concludes that there was no evidence from which the jury could have properly inferred that the passage bar was open.
After an examination of the record, we are of the view that Erie's argument on this issue has oversimplified the plaintiff's case. We do not agree that the evidence adduced was insufficient to create jury issues with regard to Erie's liability. There was ample evidence to sustain findings that the train had overrun the station platform with the first coach having come to rest across a public road, that no warnings had been given with regard to alighting from the left exit, that passengers had exited from the left on prior occasions,*fn5 that reasonable precautions were not taken to assure that the left passage bar was closed upon arrival in Glen Rock, and that Erie's second train, an ...