## Facts

- Archie K. Case, a railroad conductor, sued his employer under the Federal Employers’ Liability Act (FELA) for injuries allegedly sustained at the Albany, New York station on December 15, 1960.
- Case testified that, while stepping off a platform to cross tracks and board a car, his left foot went into a hole about 15–18 inches deep, causing him to fall backward.
- The railroad disputed causation, asserting that no hole was reported, found, or repaired in the area where Case claimed to have fallen.
- Case indicated that the fall might have been observed by a brakeman, Moore, and a fireman on a yard engine, but Case did not call either witness at trial.
- The railroad did not call Moore and instead presented a claim agent, Culnan, to explain efforts to locate Moore and the basis for the railroad’s view that Moore did not have useful knowledge of the incident.
- A jury returned a verdict for the railroad; judgment was entered for the defendant.

## Issues

1. Whether the trial court committed reversible error by admitting the railroad claim agent’s testimony about efforts to locate Moore and the railroad’s belief that Moore lacked relevant knowledge, offered to counter a missing-witness adverse inference.
2. Whether any hearsay contained in that explanatory testimony required reversal, or was harmless in context.

## Decision

- The Second Circuit affirmed the judgment for the railroad.
- The court held that a missing-witness inference applies only when it would be natural to produce the witness if the witness’s knowledge were favorable.
- The railroad was entitled to present an explanation for nonproduction, including evidence of unavailability or a good-faith belief that the witness lacked testimonial knowledge.
- Even if parts of Culnan’s testimony were technically hearsay, any error in admitting it did not warrant reversal given the limited, collateral role of the testimony and the overall trial record.

## Legal Principles

- A missing-witness (adverse-inference) instruction or argument is proper only when the witness is available and it would be natural for the party to call the witness if the testimony would be favorable.
- A party may rebut a proposed missing-witness inference by showing reasonable efforts to locate the witness (unavailability) or a good-faith, reasonable basis to believe the witness lacks material knowledge.
- Out-of-court statements may be admissible when offered to show the party’s state of mind and the reasonableness of a litigation decision (such as not calling a witness), rather than for the truth of the matters asserted.
- Evidentiary error relating to rebuttal of a missing-witness inference is not reversible absent a substantial likelihood of affecting the verdict, particularly when the matter is collateral and the trial was otherwise fair.

## Conclusion

The court upheld the defense verdict, ruling that the railroad could present explanatory testimony to defeat a missing-witness inference and that any hearsay embedded in that explanation, on this record, was not prejudicial enough to require a new trial.


Case v. N.Y. Cent. R.R. Co., 329 F.2d 936 (2d Cir. 1964)