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PALMER V. HOFFMAN, 318 U. S. 109 (1943)
U.S. Supreme Court
Palmer v. Hoffman, 318 U.S. 109 (1943)
Palmer v. Hoffman
Argued January 7, 8, 1943
Decided February 1, 1943
318 U.S. 109
1. A signed statement of a railroad engineer, since deceased, giving his version of a grade crossing accident in which the locomotive he was operating was involved, and made two days after the accident, when he was interviewed by an official of the company and a representative of a state commission, held not made "in the regular course" of business within the meaning of the Act of June 20, 1936, and not admissible as evidence thereunder. P. 318 U. S. 111.
2. A ruling of the trial court that, if the defendant called for and inspected a signed statement which, on cross-examination, a witness for the plaintiff stated he had given to the plaintiff's lawyer, the plaintiff would then be entitled to put the statement in evidence, held not a ground for reversal in this case, since the document was not marked for identification and is not a part of the record, and this Court is therefore unable to determine whether the contents would have served to impeach the witness. P. 318 U. S. 116.
3. Rule 8(c) of the Rules of Civil Procedure does not make contributory negligence an affirmative defense, but relates only to the manner of pleading. P. 318 U. S. 117.
4. 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. P. 318 U. S. 117.
5. The ruling of a lower federal court upon a question of local law will not here be set aside except on a plain showing of error. P. 318 U. S. 118.
6. In a, suit in a federal court in New York, in which two of the causes of action were based on a Massachusetts statute and two were based on the common law, the court charged the jury that the burden of proving contributory negligence was on the defendants. The defendants' exception to the charge did not differentiate between the causes of action based on the statute and those based on the common law. Again without differentiating between the statutory and the common law causes of action, the defendants requested a charge that the burden was on the plaintiff to establish freedom from contributory negligence. In this situation, this Court, assuming that the charge, so far as the common law counts are concerned, was
erroneous, but being unable to say that the charge was incorrect so far as the statutory cause of action are concerned, does not reverse and remand the cause. P. 318 U. S. 119.
7. Where a party might have obtained a correct charge to the jury by specifically calling the attention of the trial court to the error, and where a part of the charge was correct, he may not through a general exception obtain a new trial. P. 318 U. S. 119.
129 F.2d 976, affirmed.
Certiorari, 317 U.S. 611, to review the affirmance of a judgment against the petitioners in an action for damages on account of injury and death alleged to have been due to negligence. The jurisdiction of the federal court was invoked on the ground of diversity of citizenship.
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