(concurring) .
Judge HINCKS and I concur in the result reached by Judge FRANK in his opinion for the Court. However, our reasons for affirming the admission of certain evidence introduced by the plaintiff and objected to by the defendant differ sufficiently from those of Judge FRANK and from those of each other so that I think it not inappropriate to append a separate statement of my views.
The evidence in question falls into four categories: (1) evidence concerning the general practice or custom of the defendant during and prior to April, 1949, when the injury sued upon occurred, of making cleanups and of making up trains containing coal cars in the railroad yard where the injury occurred; (2) evidence that coal had been seen on and between' the tracks in such yard during April, 1949; (3) evidence that complaints were made to a safety committee of the defendant during 1947 and 1948 concerning debris and litter in such yard; and (4) evidence tending to show that prior to and during April, 1949, very few maintenance employees were available to do cleanup work in such yard because of transfers of men to jobs in other places.
1. Evidence of Custom of Defendant of Making Cleanups and of Making Up Trains Containing Goal Cars.
Various employees of the defendant, were permitted to testify concerning the general practice of the defendant during- and prior to April, 1949, concerning: (a) a procedure of cleaning up debris in the yard, including the path between tracks. 9 and 10; (b) the method of making up trains containing coal cars; (c) the-method of transferring coal from a defective car to a good car; (d) the use of tracks 9 and 10 as well as other tracks to make up trains containing coal cars; and (e) the method utilized by the defendant of coupling coal cars by impact, so that coal could be dislodged from coal ears and fall to the tracks.1 All of this evidence was offered by the plaintiff to. corroborate his testimony that his injury had been caused by tripping over a large piece of coal left by the defendant in the path between two tracks. It tended to show that pieces of coal might be present in the yard, and hence it bolstered the plaintiff’s own statement that there was a piece of coal at the particular place of injury. It also tended to show that the defendant was aware that coal could litter the yard and that the defendant had a procedure for handling this problem.
I think it clear that this evidence as to the general practice or custom of the defendant was logically relevant, i. e., it was probative of the issue of whether or not a defective condition existed.2 *57Assuming the relevance of this evidence, the problem is then one of weighing the probative character of the evidence against the disadvantages attendant upon its admission. The dangers of this type of evidence are patent: it raises issues which tend to become progressively more remote from the narrow factual issue before the jury; it may consume an unnecessary amount of time and confuse the triers of facts; and it may prejudice the opposing party by showing its negligence in general or in respects which did not cause the particular injury in suit. But I think that this weighing of factors is a function that should remain, by and large, in the discretion of the trial judge. Only in the most extreme case should we upset a determination on his part that the probative value of the evidence outweighs the dangers it carries. In the instant case I cannot say that the trial judge abused the broad discretion which it was his part to exercise.
It may be that Rule 43(a) of the F.R.C.P., 28 U.S.C.A. requires us to search out and apply the applicable state rule of evidence here — absent a more lenient rule prescribed by a United States statute or derived from federal equity suits before the adoption of Federal Rules. See Schillie v. Atchison, T. & S. F. R. Co., 8 Cir., 1955, 222 F.2d 810. I am not certain either that Rule 43(a) completely eliminates any creative power on our part to modify rules of evidence applicable in federal court or that it would be erroneous for us to draw evidence rules from actions at law in the federal courts before the adoption of the Federal Rules.3 Be that as it may, I think the evidence now under discussion was admissible under the rules of evidence of the applicable state, New York.
New York courts generally exclude evidence of an individual’s habits when offered to prove the doing on a specific occasion of the act which is the subject of the “habit.” Dubois v. Baker, 1864, 30 N.Y. 355, 369 (habit of carrying an inkstand held inadmissible to show that it was in his possession on a certain day); Zucker v. Whitridge, 1912, 205 N. Y. 50, 98 N.E. 209, 41 L.R.A.,N.S., 683 (habit of looking both ways before crossing streetcar tracks inadmissible to show due care on day of injury); Lefcourt v. Jenkinson, 1940, 258 App.Div. 1080, 18 N.Y.S.2d 160 (habit of opening door by pushing on glass panel held inadmissible to show lack of due care at time of accident) ; Grenadier v. Surface Transport Corp., 1946, 271 App.Div. 460, 66 N.Y.S. 2d 130 (evidence of two prior accidents of bus driver held inadmissible to show his negligence); Warner v. New York Cent. R. Co., 1871, 44 N.Y. 465 (habit of intemperance of railroad flagman held inadmissible to show intoxication at a particular time). These cases involve the “habits” of individuals, rather than the group practice, routine, or custom of a corporate entity. Nearly all courts, including those of New York, treat this latter type of evidence — which is that involved here — much more favorably than evidence respecting the habitual responses of individuals. See, e. g., Gray v. Siegel-Cooper Co., 1907, 187 N.Y. 376, 80 N.E. 201 (custom of those delivering freight to use defendant’s elevator held admissible as bearing on defendant’s negligence); Shannahan v. Empire Engineering Corp., 1912, 204 N.Y. 543, 98 *58N.E. 9, 44 L.R.A.,N.S., 1185 (evidence of general usage and practice on tugboats held admissible); Thallhimer v. Brinckerhoff, 1826, 6 Cow., N.Y., 90, 101 (evidence of clerk’s invariable custom to mail letters as soon as copied admitted to show that letter was sent). It should be noted that the evidence involved here was not admitted to show that the defendant had been negligent in general or that it had been negligent because it had not followed a custom generally in use in the particular industry. It was offered and received for the purpose of proving a particular fact, namely, that the condition of the path between tracks 9 and 10 was defective. Cf. Eaton v. Bass, 6 Cir., 1954, 214 F.2d 896.
2. Evidence of the Presence of Coal in the Yard in April, 1919.
Several employees of the defendant testified that they had seen coal lying on the ground in various parts of the yard where the injury occurred during the month when the injury occurred. Evidence of general conditions throughout the yard certainly shed some light on the particular condition of the path at the place of the accident. I think that this evidence was clearly relevant. See Popper v. City of New York, 1953, 281 App. Div. 98, 117 N.Y.S.2d 335; Nichols v. Bush & Denslow Mfg. Co., 1889, 53 Hun 137, 6 N.Y.S. 601, affirmed per curiam 117 N.Y. 646, 22 N.E. 1131.
3. Evidence of Complaints to Safety Committee.
One employee of the defendant was permitted to testify that in 1947 or 1948 complaints of litter in the yard had been made to a safety committee of the defendant, of which he was a member. I agree with Judge Frank that this evidence was admissible as tending to show that the defendant had notice of the path between, tracks 9 and 10. Moreover, I think the evidence was admissible under New York rules of evidence. See Pettengill v. City of Yonkers, 1889, 116 N.Y. 558, 22 N.E. 1095, where evidence of defects existing near the place where the injury occurred was held admissible. And New York apparently admits evidence of similar accidents or occurrences where the circumstances are shown to be similar, Vogel v. Montgomery Ward, 1949, 275 App.Div. 727, 86 N.Y.S.2d 817, leave for appeal denied 299 N.Y. 800, 87 N.E.2d 690; or where such evidence tends to show notice, Sandler v. Hemlock Estates, 1951, 201 Misc. 429, 106 N.Y.S. 2d 315; Binder v. Zelda Const. Corp., Sup.1944, 51 N.Y.S.2d 660.
4. Evidence of Transfer of Maintenance Workers.
Several of the defendant’s employees were permitted to testify that several months prior to April, 1949, a substantial portion of the men available in the yard for cleanup operations had been transferred to do work in other places. One witness testified that, consequently, no cleanup work was performed during a period immediately prior to the injury. Judge FRANK would admit this evidence as showing a habit of negligence on the part of the defendant. He rests this conclusion not on precedent, but on the enlightened view of Wigmore, McCormick, and the draftsmen of the Model Code of Evidence and the Uniform Rules of Evidence. Moreover, he intimates, I think erroneously, that we may formulate different and more liberal rules of evidence in F.E.L.A. cases than are applicable in other cases brought in federal courts. I think such a development would be unfortunate. Rules of evidence applicable in federal courts should not be compartmentalized according to the subject matter of the case involved. And the F.E.L.A. is a substantive statute and does not contain or imply rules of evidence. See Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 1953, 207 F.2d 899, 903.
I do not think that this evidence relating to the transfer of railroad employees from the yard where the injury took place can be characterized as “habit” evidence. There was no testimony that this transfer of workers had been a regular routine. In order to be characterized as a “habit” or “custom” an act must have *59been repeated on a sufficient number of occasions so as to have become habitual, i. e., a regular response to a given situation. See the Model Code of Evidence (A. L. I., 1942) Rule 307, and the Uniform Rules of Evidence (1953) Rule 50.
I would prefer to rest our affirmance of the admission of this evidence concerning the transfer of employees upon the more general ground of its logical relevance. It tended to round out the picture presented by the evidence discussed in point (3), supra, by showing that coal observed in the yard had no opportunity of being removed. Thus, it increased the plausibility of the plaintiff’s version of the injury — that he stumbled over a large piece of coal lying on the path between tracks 9 and 10. As such, I concur with Judge Frank that the trial judge did not abuse his discretion in admitting it.
. All of this evidence was offered and admitted before there had been any proof of a defective condition in the path at the time of the accident. The trial judge realized this and so told the jury. He admitted the evidence subject to the condition that it be tied up by evidence showing a specific defective condition at the exact time and place of the injury. This condition was later fulfilled.
. Proof of the existence of these customary practices was made in the form of conclusions on the part of defendant’s employees that there were such practices. This is the method usually employed. See, e. g., Security Mut. Life Ins. Co. *57v. Kleutsch, 8 Cir., 1909, 169 F. 104; McCormick on Evidence (1954) 343. The testimony indicates that these practices were repeated on numerous instanees, some of them many times daily.
. The evidence now under consideration might be considered admissible in the discretion of the trial judge on the basis of long-standing federal precedents in actions at law. See, e. g., Bouldin v. Massie’s Heirs, 1822, 7 Wheat. 122, 153, 5 L.Ed. 414 (evidence concerning a habit of never recording without a document of transfer admitted) ; Chitwood v. United States, 8 Cir., 1907, 153 F. 551, 552 (evidence of habitual arrival of torn mail packages in prosecution for opening mail admitted); Union Pacific R. Co. v. Owens, 9 Cir., 1944, 142 F.2d 145, 146 (evidence as to custom in complying with company’s rule for ringing bell held admissible).