Baltimore & O. R. Co. v. O'Neill

190 ju- knowing way ex- what effect this conformity no with established strict Myers produced Liggett the ver- ry procedure. To- traneous evidence & law D.C.Md., Imbraguglia, dict. Co., bacco Inc. v. Receiving incompetent F.Supp. 73 foregoing Under the circumstances by jury requires that documents in accordance with the authorities above entirely aside, de- unless verdict set judgment mentioned, are the verdict and prob- any proven influence or the

void remanded set aside and the case to jury’s ability upon the influence of such district for a court new trial. Jorgensen or verdict. deliberations Machinery Corp., v. York Ice say court to It is not for the F.2d 432. evidence ad- was sufficient whether there finding justify the duced at the jury, im- the evidence and that had them could have received pure-

no influence on the verdict. This ly fact and not within the a matter of & O. R. CO. BALTIMORE determine, province of the court no criterion law has O’NEILL. the im- the effect which know or ascertain may produce upon proper No. 11770. evidence, improper verdict. When Appeals Court United States prejudiced has been have Circuit. Sixth jury, pre- so the law will received 2, 1954. March Telephone & Railroad sume. Street Simmons, Companies 107 Tenn. S.W. 709. agree juror

The last question

verdict testified during jury their most concerned speed days of deliberations was two was, first, car; he himself at opinion the driver of the car negligence whatever; guilty no highway pro manual that after room, jury persuad he was duced speed of the car had a lot to ed that accident; happening of the do with the production after it was further discussion that

the manual whole, he, as a arrived at a and the appellee. in favor The fore

verdict was asked the trial man of the any played the manual whether court important in the final verdict of the reply know,

jury, was: “I and his don’t

Judge.” Neither did the court district known, know, could have nor whether evidence, introduced without this knowledge of court counsel after jury, influenced the retirement McAllister, Judge, and, certainly, verdict; court, Circuit dissented far trial, part. from the could removed ther Ohio, counsel, appel-

Columbus, of’ lant. Ohio, Dombey, Columbus, C.

Alex S. Ohio, Grieser, Columbus, on Richard Columbus, brief; Dombey, Herbert & Ohio, counsel, appellee. for ALLEN, McALLISTER Before Judges. MILLER, Circuit Judge. MILLER, Circuit O’Neill, appellee, recov- Francis The judgment court a in the district ered against appellant, Baltimore Company, in the amount Railroad Ohio $22,000 provisions under the Liability Act, Employers’ Federal Sec- 51-60, 45, U.S.C.A., Title for dam- tions ages in an suffered accident on June working appellant while main- as a boilermaker in its locomotive Newark, repair shop tenance and at Ohio. ap- returned a verdict for The pellee $32,000, in the amount but judge ruled that he would sustain appellant’s motion new for a trial unless appellee filed of all his remittitur damages exceeding $22,000, which the appellee did. The motion a new trial was then overruled. day accident, appellee On the installing heavy, pan steel ash un-

was appellant’s steam locomotives. one of der being assisted another em- He was They ployee the name Janes. brought pan ash side sitting which was over a work locomotive through Appellee pit. two holes burned large enough pan side of ash each go through, half-inch bolt to in or- for a pan a chain across the der to bolt lifting purpose could be used pan pull means of a hook and a the ash Appellee jack. obtained half-inch together nuts, bolts, with washers and appellant kept from the toolroom where pan supplies. placed ash The was through pit the use of crane. in the pull jack placed was the fire box engine directly pan above the ash Alexander, Columbus, hook Ohio, after the was connected with Arvin J. appellee pit. Ebinger, Columbus, Ohio, went into chain Robert F. Ebinger helper brief; Alexander, Wenger, in the fire remained box. The & “Q. job an to attach Your was manually operated work- jack pull locomotive, pan isn’t ash right? to a While ing up down. a handle Yes, sir. place A. being it pan raised ash engine, ap- charge position “Q. And, you underneath its were steadying pit standing Yes, in the pellee you work, not? A. way and to either tilt woudn’t it so it sir. position. guide Before help into “Q. two holes You cut the bolts position one reached its torch, you? pan with a didn’t ash pan right of the ash side broke and the Yes, A. sir. wedging against him be- fell “Q. to store-room You went the work of pan frame and the ash tween the two new one-half inch and selected injuries causing locomotive, com- the the bolts, diameter, for a half-inch plained of. work, you Yes, this did not? A. following allegation: On approximately permitted follows: pellee the accident break, with Janes did testimony operation He also ant thereby plaintiff what not see his stated, side of the down and bolt broke I was position? cross-examination, him “Q. “Q. “Q. Now, corporation respect was the more in detail than complaint the frame and the steel pit, including injuring about the wedged stated hereinbefore What What described the situation swing not ash helper gave only the face A. 150 to 200 only testify. Appellee in his pan metal bolt did happened to pan, as negligently between No, happened? to down came the various Janes accident. His amended witness to the you the rear and strike immediate plaintiff.” “During sir. ash brief he testified as described, defend- get in the fire pounds time he could the ash locomotive.” distances, measurements pan chain hoist who testified testimony holding one contains the hereinabove you? caused and A. The the in that weighing cause to pan. repair helper pan some- body, A. drop box. fol- but ap- as to questions ed that he used the same kind and size On of bolts that he had used on similar A. you pulled the bolt broke? balance when it was ly bolted you? A. and hands, you middle room sir. it around to make the holes measurements on whether I had it roughly size bolt for this directly in the middle or didn’t re-direct “The Court: How do “Q. “Q. “Q. “Q. Ias ^[*] went back Yes, you right? past, you up you? the chain to of could, Now, after Now after When asked And got ^[*] sir. had hold of it with into and testified as could have examination, appellee Yes, it to the center as close- you put A. A. you pan without measurement. ^[*] to position, sir. the Court: job, your it, Yes, went so that I trying you got ^[*] the chain in the didn’t make no this could being hoisted, work sir.” into selected Mr. pan, pan *(cid:127) you center. to pan the bolts you the tool- follows fit, and O’Neill, juggle would didn’t know ^[*] your not? isn’t any you stat- jobs I lows: Connelly, “The Witness: Mr. mechanic, master up had me in his going “Q. Now back June office and showed it to me. you day occurrence, of this working you you by helper job Court: Did do “The this had a you? way you Janes, didn’t A. in the usual have done the name years? job Yes, sir. Yes, that the facts the occurrence warrant sir. “The Witness: negligence, they not do others Court: And that “The they compel inference, such an fur- it? negli- nish circumstantial evidence of Yes, sir.” “The Witness: gence may where of it direct evidence appellee's close At the lacking, be weighed, but is evidence verdict. directed for a appellant moved necessarily accepted to be now, then, it does as It contended sufficient, and that other evidence any proof adduce appellee failed to explain completely rebut the infer- negligence proximately of causing ence. injuries. The District appellee’s motion, and after

Judge Under the rule burden of overruled overruling proof plaintiff at the motion does not a similar shift from the also evidence, defendant, plaintiff the the submitted and if the of of all close theory pertaining of res fers no evidence under the to the issue case ipsa loquitur. other than facts of injury, occurrence of and the ex action is Appellee’s cause planatory facts are sufficient to rebut allegation in the amended upon the based complaint inference, plaintiff fails meet negligently appellant the burden and to make a fails case. hold permitted bolt the metal caused ing Sweeney Erving, supra, v. 228 U.S. at pan chain of the ash side one page 241, page 33 S.Ct. at 418. Where evi direct was no There break. hoist to explanatory contradictory evidence is ap negligence of the on the dence of justify or of such a character as to dif testimony was “the pellant. Appellee’s ferent inferences as to defendant’s ex pan.” came and down bolt broke care, ercise of due it is for the caused as to what no evidence There neg determine whether the of explan inference evidence was no There to break. bolt ligence by has been rebutted although defective, we the bolt atory possible evidence. But where the reasonably supports the evidence think negligence clearly inference over broke because that the bolt by undisputed come any free evidence from circum Under such defective. it was inference, reasonable adverse ap ipsa loquitur stances, rule of res explanatory where the uncontradicted thing namely plies, which that when the non-liability facts establish as a matter injury produced is shown to sued for law, duty it is the of the court to di exclusive under defendant’s have been rect a verdict for the defendant. The management and the circum control application change of the rule does not that has caused of the occurrence stances general rule that where the evidence give injury are of a character to a whole support as is insufficient to ground that par for a reasonable inference plaintiff, verdict for the defendant’s mo by employed been if care had due tion for a directed verdict should be sus charged premises, ty with in the care tained. thing happened would amiss neg happened, present case, an inference of In the not have ligence the facts which, satisfactorily undisputed. Appellee’s if arises are on this issue testimony explained, developed is sufficient to take the case the fact own negligence. question was a new bolt selected the bolt him Railway-Carolina regular stock, eliminating any Division v. Southern thus from 80, 86, 566, Bennett, credibility question possible 233 U.S. 34 S.Ct. anof. 860; Jesionowski, Adm’x L.Ed. v. witness. 58 adverse The case is thus ma 452, R., terially cases, R. 67 & Maine 329 U.S. Boston different from the some 401, But, appellee, 91 L.Ed. 416. as stated are relied S.Ct. which where Sweeney 233, Erving, v. equipment 228 33 in in U.S. S. use has become defective 815, 416, through L.Ed. proper 57 where the Ct. rule is excessive use or lack of analyzed, ipsa loquitur inspection repair. res well means The bolt was not

195 for a directed tained motion appellant; it was manufactured Chesapeake verdict. also Moore v. by appellant usual in the purchased 428, Co., 573, any & O. R. 340 U.S. 71 S.Ct. notice without course of business 547; Pennsylvania L.Ed. R. Co. v. 95 Brubaker, Cir., not called bolt was broken defect. The 939; 6 31 F.2d Grand v. by appellee not introduced and was Co., Ry. Okl. Francisco 97 Louis-San no St. 111, There was in evidence. 80; Asprodites defective, way 221 v. any P. Standard in what it was kind Steamship Co., defect, F.2d Fruit & 728, 5 108 or that it not a hidden or that was York, supra; Lynch N. H. v. New known appellant knew or should 877; Co., 152, N.E. H. R. 294 Mass. 200 of & a matter it defective. As that law, Co., Cir., Pennsylvania 95 R. 6 purchaser manufac O’Mara v. from a such a negligence chargeable F.2d 762. turer is not if, passing in the on to others after retrial, purposes we will For the business, proves de course of usual questions that are refer to some other Rommeck, 149 Mich. fective. Clement appeal presented and which will 382; L.R.A.,N.S., 595, 113 13 N.W. retrial. be involved Adm’r, v. McMath’s Peaslee-Gaulbert Co. agree ruling of with the We 274-276, Ky. 265, 39 146 S.W. 148 Judge was not District guilty 465; L.R.A.,N.S., Noble v. Sears Roe contributory D.C.W.D.Wash., F.Supp. Co., buck & performing of law his duties matter Schindley Allen-Sherman- 181. See Safety apparent Rule No. violation of an point Co., Cir., 102. As 157 F.2d Hoff appellant, prohibited an following cases, any initial ed out standing employee under a load from entirely rebut inference of is being moved a mechanical hoisted or explanatory ted such evidence with the rule device. We do construe plaintiff the result that the as a matter employee applying to an whose duties re go of law failed to make out a case to to quired in him to be under such a load jury. the Shankweiler v. Baltimore & O. hoisting perform properly order to 195; Co., Cir., 6 Dierks Lum R. 148 F. job. showed this to be The evidence Cir., Brown, ber & Coal v. 8 19 F.2d Co. case. 732; Gray Co., v. Baltimore & O. R. 7 Pickett, Dr. a medical witness Cir., 671, 673-674, 24 59 A.L.R. F.2d appellant, received from Dr. Er for the 461; Asprodites Standard Fruit & v. Piatt, X-ray hard and Dr. who made 728; Cir., Co., Steamship F.2d 5 108 injury films quest, at Dr. re Pickett’s Adm’r, Corp. Partin’s v. Black Mountain separate reports, their written 1014; 796-800, Ky. 791, 49 S.W.2d 243 which contained their conclusions about Dunning’s Kentucky Utilities Adm’r v. what the films showed. On cross-exami 6; Ky. 44, Co., 109 S.W.2d Roanoke 270 judge, nation of Dr. Pickett the over trial Sterrett, 533, 108 Electric Co.v. Va. R. & appellant’s objections, permitted these L.R.A.,N.S., 316; 385, 19 Chris 62 S.E. jury. reports to read We are Oregon Co., R. 35 v. Short Line tensen opinion reports that these were 676, L.R.A.,N.S., 137, 20 255. 99 P. Utah in not admissible testimony concerning evidence as substantive pointed in out this Court South As injury. They 73, Ry. Derr, Cir., v. 6 240 F. ern Co. were not sworn to and the conclusions expressed by on be able the second the two doctors were not Although subject of this case to introduce additional cross-examination. trial authorities, proof which would authorize conflict in the submis is some there jury, opinion they of the case to but on the sion we are also extremely limited evidence now as entries of acts or oc before not admissible regular Judge, us, accordance made course of the District currences ruling 1732, 28, in that case and the rul under Title U.S. § with ing business Taylor, York Co. v. v. & New Life Ins. in Shankweiler Baltimore O. Code. supra, 66, 297; Id., Cir., U.S.App.D.C. Co., F.2d 6 should have sus 147 79 R.

196 328; U.S.App.D.C.331, 158 Mas new 81 F.2d order remittitur instead of a Co., Pennsylvania Cir., category. v. 3 182 trial Min- terson R. falls into the same England States, 793; neapolis, Ry. 5 Co. v. Paul Marie F.2d Cir., United St. & S. Ste. Fyfe, 501, 466; 520, Moquin, 1 v. v. 283 174 F.2d Gencarella U.S. 51 S.Ct. Cir., 1243; Hoff v. 171 F.2d 419. Palmer v. 75 L.Ed. Pacific Co. Southern man, 477, 109, Guthrie, Cir., 295, 304; 318 87 L. 180 F.2d Unit- U.S. 63 9 S.Ct. Lands, 645; States, Chapman 5 Ed. Cir., ed States v. Certain Parcels of United 974, 978; etc., 81, Cir., Unit 194 F.2d 5 149 F.2d 83. Clainos States, 278, U.S.App.D.C. 82 163 F. ed Appellant objections makes numerous York, New 2d Contra: Korte v. charge jury. to the Court’s Most Co., Cir., 191 H. & H. R. F.2d N. them, least, are, considering of charge at 868, 72 S.Ct. certiorari denied 342 U.S. whole, aas without substantial 652; v. United L.Ed. Landon instances, merit. In other is where States, Appellee 197 F.2d 128. degree required claimed that the con- irrespective of statu contends that clarity lacking, ciseness a consid- tory provision report was admissible objections by trial eration of on cross-examination of Pickett Dr. judge will enable him at the next trial Pickett’s the data on which Dr. show opinion diffi- such criticism eliminate without based, Dr. Pickett’s culty. opinion such data. was not in accord with judgment is reversed and case properly laid such a foundation is Where remanded to the District Court for is admissible on evidence cross-examina new trial. discrediting purpose tion witness, evidence but use McALLISTER, Judge (dissent- Circuit strictly limited and the should be ing part). carefully limited use. instructed about its I am of the view that the trial court judge properly limited the use submitted this case to the at when it was the time ipsa loquitur. under doctrine of res agree received, but we offered thing produces When the in- that the effect contention jury to shown have is been under defend- by the dis the admonition was nullified management, and ant’s control the and by the in of this evidence Court cussion happen is such as in occurrence does not charge jury. to the a later Such its ordinary of the course events if care due can of course be avoided at the conflict exercised, happening is the fact of the of trial. next injury the itself affords evi- sufficient no merit in We see support recovery, dence to in the absence allegations that certain contentions explanation by tending of an defendant from the been stricken should injury to show that the was not due to they complaint, because were amended of defendant’s want care. con- Exclusive by supported and evidence that not the qua applica- trol sine non is not a for the per been should not have the legal doctrine; control, tion of the re- complaint his to con to amend mitted sponsibility proper and efficient proof. Rules of the Rule to form functioning of the device which caused Procedure, 28 U.S.C. Civil injury, superior, and a the if not exclu- sive, knowing position obtaining for or unnecessary rule on to the It is knowledge of the facts which caused argu portions of the of certain propriety injury the are sufficient. Pitcairn v. Per- by appellee, jury counsel ment ry, 8 F.2d Cir., 122 the verdict contention that on the and by passion In the accident and this was reason of caused excessive was holding a bolt which broke while are individual the Such matters prejudice. heavy falling may pan, trial, and or ash resulted in particular not its a to employee. Appellant’s upon the railroad The facts present in the next trial. be right judge warrant of accident the inference of objection of the the inspectors inspected, foregoing does and that its negligence. inference The it, necessity, carry the con- not with away on of might evidence explained be inspected;” clusion that was [it] was not the of defendant say jury or and it to whether negligence. is for the guilty of not, upon testimony, presump- the all the employee, Here, injured before the at the tion that the bolt was defective working pan, a had secured on the ash time of the had been removed accident toolroom. railroad’s from new bolt the by testimony showing kind ex- the bolt which a new fact that this was inspection. tent of Erie and time my not, in in use does had never been Schomer, Cir., 171 F. Railroad Co. neg- from opinion, exonerate the railroad short, enough 798. “In not is language rule, ligence, or, of the would, if the true, of the defendant evidence negligence. away explain of the presump- to rebut the be sufficient duty part of the There tion, jury pass it is for the because to bolts, railroad, in- purchasing in to such credibility upon the of the witnesses they spect to ascertain them in order testimony”. the truth of Southern they defective, in were used were Railway Hussey, Cir., Co. v. 42 F.2d might imperil work where defective bolts 73, 74 A.L.R. 1172. safety employees lives and loquitur wás, course, ipsa duty res rule of creates railroad. Such railroad, op- implicitly an inference of posite party in- fact. It casts on the admitted going duty evidence of its forward as it asmuch introduced risking bolts; jury practice purchasing evidence practice inspect will infer from bolts at the the occur- to company they plant rence. It will from which take the case of the they purchased, time unless the entire is or at evidence were against company. presumption cannot stand it. delivered to the railroad enough company’s It is not that the One of the witnesses evidence railroad would, true, if certain bolt had been sent defendant be testified that a sufficient engineer purposes phy- presumption, for test rebut because it pass credibility company tests of railroad three for the sical accident, half and a months after the witnesses and the truth verdict, department testimony. justify claims To railroad'. a directed Moreover, a chemical test was the must so while conclusive made the bolt evidence—and it minds of reasonable men could not analysis appeared differ to the conclusions to that the chemical be drawn determining Atchison, Topeka importance therefrom. & Santa utmost Ry. Simmons, Fe Co. F. whether a strength had bolt sufficient tensile 2d 206. testimony by was no —there anyone making test; and there proof no There was which the bolt nowas evidence that bolt which was inspected broke was ever before ac- engineering department to the sent proof cident. There no was physical and chemical tests was ever in- physical subjected bolt which broke, spected before it or even chemical tests the broken bolt that same bolt caused the ac- happening caused the accident. The of cident. accident, under the circumstances dis- case, application guarantor closed in this called not a railroad is ipsa loquitur of res doctrine instrumentalities and equipment. attachments its drawing inspections, suitably justified of an If inference of negligence made, defect, would not reveal a of the railroad company. if it did not exist at the time an It cast railroad the going occurred, duty evidence, the railroad accident must forward with the risking neg- due to have used care. “But that the held infer would ligence inspectors, required fact it had suitable from the mere occurrence. It jury, the mere since submission new and unused fact that the bolt was that the

was not such evidence against negligence it. could not stand might though testi-

Even witnesses inspecting bolt before

fied as to accident, it would still be credibility pass upon and the their testimony.

truth of the foregoing reasons, I am of the

For the

opinion question should be submitted jury. aspects the other On of'Judge opinion Mil- I concur with the

ler. Secretary

MITCHELL, of Labor REALTY, Inc.

FAMOUS

No. Docket 22848. Appeals, Court

United States Circuit. Second

Argued Feb. 19, 1954.

Decided March Ray, Acting Solicitor, Jeter S. Wash-

ington, C., Regional Hughes, D. John A. Atty., Henry Easton, Atty., J. U. De- S. partment Labor, City, New York Rothman, Solicitor, Stuart golin, Bessie Mar- Appellate Litigation, Chief of Babson, Jr., Atty., David F. U. S. De- partment Labor, C., Washington, D. plaintiff. Joseph Wohl, Brooklyn, Y., S. N. Lubarsky, (Walter Brooklyn, Y., of N. counsel), defendant-appellee. CHASE, Judge, Before Chief and L. Judges. MEDINA, HAND and Circuit Judge. CHASE, Chief Wage Administrator of the Department Division La- Hour

Case Details

Case Name: Baltimore & O. R. Co. v. O'Neill

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 2, 1954

Citation: 211 F.2d 190

Docket Number: 11770

Court Abbreviation: 6th Cir.