Kiley and Stevens, Circuit Judges, and Campbell, Senior District Judge.*fn1
A jury in this diversity case returned verdicts for $200,000 and $150,000 in favor of plaintiff suing as guardian for two minors -- Gary Purple and Phyllis Carter -- allegedly injured as a result of defendant Penn Central Transportation Company's (Railroad's) negligence in transporting an electric transformer for General Electric (GE). The Railroad has appealed.*fn2 We affirm.
The transformer, weighing over 100,000 pounds, was being transported from GE's plant in Pittsfield, Massachusetts, to Flagstaff, Arizona. In Indiana, the car carrying the transformer derailed, causing derailment of another freight car which ran across and blocked a state highway on which plaintiff's minor wards were traveling by automobile. The automobile collided with the freight car, causing injuries to the minors. The suit before us followed, charging, so far as pertinent, that the Railroad's negligence in operating its train was the proximate cause of the minors' injuries. Plaintiff's theory was res ipsa loquitur.
Evidence at the trial showed that the transformer was loaded on, and bound to, the freight car directly after the locomotive, and that that car was the first to derail. There was also evidence that although GE represented to the Railroad that the transformer weighed 96,700 pounds, it actually weighed 117,473 pounds. Further testimony was that had GE correctly represented the weight of the transformer, the Railroad would have limited the speed of the train to 35 miles per hour instead of 49 miles per hour, and would have placed the transformer on a car immediately preceding the caboose so that excessive swaying might be observed.
The Railroad depended upon the foregoing evidence to prove its defense that the derailment was caused by GE's misrepresentation of the correct weight of the transformer, and not by any negligence of the Railroad. Its theory was that in view of the excessive weight of the transformer, an additional 20,000 pounds could result in a radical shift upward of the transformer's center of gravity and cause excessive swaying of the freight car carrying the transformer. The Railroad contended that GE's misrepresentation prevented it from learning of the excess 20,000 pounds so that protective measures of observing the car, and slowing the speed of the train, could be taken.
At the close of plaintiff's case in chief, and with evidence of the misrepresentation, the loading of the transformer, and details of the derailment before the jury, the judge granted GE's motion for directed verdict. In explaining the ruling to the jury, the judge commented:
The next morning defense attorney's motion for mistrial was denied. A colloquy between the judge and counsel ensued. The judge then told the jury, in regard to the prior ruling:
You should not understand anything that I said to you at that time as meaning that the Railroad in its defense cannot continue to offer evidence on the subject of what in its opinion had to do with the derailment of the train.
The Railroad proceeded with evidence in support of its theory. Its General Manager, Ingold, again testified*fn3 that had GE correctly represented the weight, the derailment would not have occurred because the Railroad would have slowed the speed of the train and placed the transformer in front of the caboose.
The Railroad argues that the judge's original remarks "that the variance in weight . . . was . . . immaterial" were prejudicial since their effect was to remove from the jury consideration of GE's misrepresentation,*fn4 proof of which it claims was essential to overcome the inference, under Indiana law, of its negligence under the res ipsa loquitur doctrine. The Railroad also argues that the remarks were not cured by the judge's subsequent comments, and that accordingly the motion for mistrial should have been granted.*fn5
We are not persuaded that the remarks prejudiced the Railroad's case. The remarks were limited to the judge's ruling on GE's motion for directed verdict, and were well within the district court's discretion to "clear away false issues" and to "comment on the evidence." See generally Wright, Federal Courts, § 94 at 416 2d Ed. (1970). The remarks effectually told the jury that GE was being directed out because -- vis-a-vis the plaintiff -- the Railroad could not shift to GE responsibility for weighing, loading and inspecting the transformer. They merely stated to the jury the substance of a later instruction (infra) on non-delegation of duty. And the judge's comments to the jury after the original remarks made it clear that the Railroad was not being prevented from offering a "satisfactory explanation" of the derailment, to rebut the inference of negligence created by plaintiff's prima facie case on the res ipsa loquitur theory.*fn6
The agreement between GE and the Railroad in which GE assumed the obligation to weigh the transformer did not bind plaintiff. As between plaintiff and the Railroad, the latter could not rely upon the GE misrepresentation in defense of plaintiff's allegation of the Railroad's breach of duty. The district court correctly decided that the Railroad could not delegate to GE its duty to use reasonable care in operating its train so as not to proximately cause injury ...