Joseph Robert Corrigan, Administrator of the Estate of Shirlee Ann Corrigan v. E. W. Bohren Transport Co.
408 F.2d 301
6th Cir.
1969
Check Treatment

*2 notwithstanding verdict, which re- O’SULLIVAN, Before CELEBREZ- quest was refused. ZE, COMBS, Judges. Circuit presented narrow on this appeal trial is erred COMBS, Judge. refusing hold, law, as a matter of appeal from a decedent’s for the plaintiff wrongful cause of her The an- in an action death. death. inquiry By depends diversity swer to this citizenship an- reason of brought (1) parties, swers to two others: Under action was law, proximate always question States District Court jury? (2) Ohio, for the If the answer to this Northern District of Eastern Divi- negative, Corrigan’s negli- is gence, was Mrs. sion. law, as a matter dispute There is little the facts. about cause of her ? death The accident which caused the decedent’s approximately heavily death occurred at 1:30 Plaintiff relies on White v. A.M., Expressway near Lakeland Power 171 Ohio St. Cleveland, Express- support Ohio. The Lakeland N.E.2d 314 his con- way superhighway always four-lane with tention that cause is strip separating jury question. a median the eastbound This contention is McKittrick, Syllabus Kehrer 176 Ohio St. language 1 of based on 192, 195, 198 N.E.2d White: question of said: “The arising an action “Where ordinarily but, fact, where one cause is is evi- collision vehicle motor evidence, such in the there is no conflict *3 negligence of dence question becomes one of law.” case negli- contributory of defendant and R.R., Pennsylvania North 9 Ohio of v. plaintiff, gence the the on of (1967), 169, is to 224 N.E.2d 757 St.2d may negligence contributory which regard the same these cases effect. We of im- moment to the have continued as decisive. pact, question as exists plain- negligence of whether such the So, question decedent’s is proximately contributed tiff negligence was such reasonable collision.” only it minds could was conclude that placed proximate Bird qualification was no cause of death. v. Since statement, plaintiff Hart, supra. opinion apparently We are absolute always question argues is is “Yes.” answer proximate presented of on the issue Proximate cause is a troublesome meaning phrase. particular It has a White. construe We do not so is difficult define. It law body language of in the There is no im has been “That which defined as: opinion us that Ohio which convinces precedes produces mediately and ef change the Supreme intended Court remote, distinguished fect, as from a rule overrule earlier common and law cause; mediate, predisposing or proximate cases which hold that Ohio might expected from which the fact be may circumstances become cause in some of without concurrence City question of v. of law. See Ziebro circumstance; unusual that without 489, Cleveland, N.E.2d Ohio St. 106 157 hap which the not have accident would (1952) ; Term v. Toledo 161 Lawrence injury pened, or and from’ which the 335, R.R., N.E.2d 7 96 inal 154 Ohio St. injury might anticipated.” like been have R.R., Pennsylvania (1950) ; Patton v. Negligence pp. 65 C.J.S. 1130-1131. 103 § (1939). 159, N.E.2d 136 Ohio 24 597 St. Supreme Court, The Ohio in reference plaintiff contributory charged ato syllabus Regardless the White of what negligence, phrase in these defined means, however, hold cases later Ohio words: of exercise due may “[I]f question cause of injury care he could avoided and circumstances become under some death, care his failure to exercise such Hart, 2 question In Bird v. of law. was of his death.” 887, 9, 11, St.2d 205 N.E.2d 889 R.R., Pennsylvania supra, Patton v. 136 it was said: 167, Ohio St. at 24 N.E.2d cases, defendant “In the instant Clinger Duncan, later case 166 of v. Al a matter law. 216, 156, 222, 141 N.E.2d 162 St. though question proximate cause it was said: jury (see ordinarily is one that, generally where an Ohio St. true “[I]t v. Ohio Power White wrongful Clinger 314 ; original act N.E.2d and in a continuous se- N.E.2d natural Duncan, St. 166 Ohio quence produces only a result which would 156), con minds reasonable act, place not have taken without defend clude that the instant established, cause is ant’s the fact some other act unites cause of collision. original injury therefore, should, act to cause does ver have directed original not relieve the plaintiffs offender dicts favor liability.” liability question Carolina, then comes down to South States Su- plaintiff’s had not re preme this: If decedent Court said: highway, mained the car on the would system independent “The an federal injured? can be she been There system administering justice to only in one answer. conclusion is litigants properly juris- invoke its who that, escapable if Mrs. An diction. characteristic essential get her off somehow been able to which, system is the manner highway, there no been actions, dis- common-law civil Likewise, though accident. the car tributes trial functions between highway, left if she had been and, influence— under the highway, out of the car and off if not command—of Seventh injured. would not have There Amendment, assigns the decisions *4 no proximate real The issue as to jury. disputed questions of fact to the * * * decisive issue was whether the decedent policy en- of uniform remaining in in stalled rights forcement of state-created heavily expressway. * on this travelled * * obligations cannot and jury having found sufficient evi every compliance in with a ease exact negligent, proximate dence that she was rights up state rule—not bound with cause Ac followed as a matter of law. obligations disrupts —which cordingly, the District Court should system allocating federal functions judgment have entered for defend judge jury.” U.S. between 356 notwithstanding ant the verdict. 537-538, (citations 78 901 S.Ct. at Reversed and remanded. omitted). and footnotes require a If federal state law cannot Judge (dis- CELEBREZZE, invariably factual court question take a certain senting) : jury, how from the I do not see require court state law invariably a can federal I believe that issue permit certain factual jury properly cause was to the submitted question, regardless evidence and that the verdict and go jury. presented, to Herron Cf. should the Plaintiff be affirmed. Company, v. Pacific 283 U.S. Southern My however, conclusion, based not 383, (1931). 91, 51 S.Ct. 75 L.Ed. 857 upon interpreta- Plaintiff-Appellee’s Therefore, I the rule of do not think Co., tion of Ohio 171 White v. Power Co., White v. Ohio Power Ohio St. 171 148, (1960). Ohio St. 168 N.E.2d 314 As 148, com- 168 N.E.2d 314 Detroit, this Court indicated in Lones v. pel a federal court to submit district Company, Toledo and Ironton Railroad jury issue of cause to the 914, (6th 918, 398 F.2d 919 2 3 Notes and interpre- given if the rule 1968), Cir. is not so clear Ohio it urged by Plaintiff-Appellee. tation federal, law controls determina- court’s sufficiency tion Assuming majority’s interpreta- o'f the evidence any particular go question factual tion of White to be and later jury. Byrd Ridge correct, however, Rural v. Blue I need do think we Cooperative, 525, Elec. 893, 356 U.S. 78 S.Ct. to decide whether fed- those cases bind question 2 953 L.Ed.2d eral district courts in determin- “statutory of whether ing was a defendant when the cause issue of employer” jury under South Carolina’s Work- should be taken from the in a di- Compensation admittedly versity men’s Act appears case. Since that the it a factual determination. South Carolina Ohio federal standard standard required law same, to make de- are as Court noted termination, jury. Detroit, rather Re- Lones than v. Toledo and Ironton jecting Company, 914, the contention that this allocation Railroad 398 F.2d 918 binding (6th inappropri- 1968), functions was on federal would be diversity brought courts actions in ate to decide the of which stand-

305 clearly here, when, has the federal the issue even more applies if ard Cf., applied. argued. of that standard was The basis nor briefed neither strong policy federal Life Insurance standard jury York Dick v. New 921, disputed factual 444-445, determination of 437, 79 S.Ct. 359 U.S. questions expressed in the Seventh (1959). L.Ed.2d 935 “ * * * no fact tried Amendment: case, ap- of the instant On facts jury reexamined shall be otherwise re- plication should of either standard States, any than jury sult in a determination that according law.” rules of common reasonably could found expressed Applying policy, Lavender was not the of the decedent Kurn, 66 S.Ct. U.S. jury her death. (1946),3 L.Ed. defined negligent in stated that decedent was reviewing of a function federal court protect life her own “to civil ease: verdict getting highway.” The off herself “* -x- * * is an at least where could evidentiary jury’s basis ver- evidence. The for the bases in the dict, jury is concluded the decedent free to discard dis- going in not believe facts are inconsistent whatever appel- “getting herself off And the and thus its conclusion. *5 highway.”1 jury have the Or late court’s is exhausted the function evidentiary have that the when becomes concluded decedent should that basis apparent, her left car and herself at removed 327 U.S. highway side of to assistance.2 the 66 S.Ct. 744. await only speculate 49(b), We Also, can the basis to Rule Rules of Federal Civil interroga- jury’s Procedure, of tory. to provides: general the answer the “when the interpretation, the Given second the harmoni- verdict are answers perhaps majority ous, appropriate upon correct the would be the the But the issue of entered verdict and answers shall be given interpretation, pursuant it seems the first to Rule there is an 58.” Since jury evidentiary clear the could have concluded makes basis in ease that this failing interrogatory jury’s the decedent the answer the to and, go to verdict, judg- with Mr. had ceased harmonious with its the therefore, not a cause of ment should be affirmed. her death. jury all had evidence before the it; persuasive result would from the the it had benefit majority arguments counsel; and would cited and it had a stating opinion 1. After its on some of the re- occurred as found events outlining Therefore, evidence and contentions the Court. lated points, jury charge precluded certain Court other District would jury: .charged from decedent opin- go Prayner. “I reference make to these two with to testimony ions because there was finding by 2. Such a decedent invited to' leave following be made in the face of go Praynor [sic], automobile and car, : the decedent was alone in her facts requested Praynor and that midnight; returning home from after work push use his automobile to auto- January month was rain had Pray- roadway, mobile off which intermittently falling; the car you to do. And be- should nor refused quarter expressway stalled on an about a I lieve that these events occur as did of a mile the nearest exist. related, you I instruct that Sliirlee case, Ann was not in de- v. Kurn 3. Lavender was an F.E.L.A. clining go to leave her automobile standard seems clear Praynor, applicable but instead chose to re- civil case. stated was See, Manufacturing main with the automobile.” v. Pro Planters Co. jury accept- We know do not F.2d tection Mutual Ins. opinion (5th 1967). ed the District Court instruction law. evidence, judge, also all of the who heard

thought supported evidence

jury’s and that answer verdict

interrogatory was consistent with reversing verdict

verdict. judgment of court on and the trial us, the cold record before basis of careful that we do sub-

we should be favoring strong policy trials vert

expressed in the Amendment. Seventh JACKSON, Appellant,

Ronald America,

UNITED STATES Appellee.

No. 23034. Appeals

United States Court of

Ninth Circuit.

Feb.