*3 open door. side the other Du- Gay Brinson, Jr., Houston, Tex., C. Lockridge pried gas testified that for Missouri-Kansas. open crowbar. Then a small door they open WISDOM, pushed it wider. Before BELL and COLE- both Judges. MAN, about the door was stated that when weight halfway open All of the the car and onto the door is off fell top, just groove and the bottom him. guide opens the door whеn it and closes. (a Loekridge a side sill testified if say But Mr. if the bottom Weis support the bottom of bar on horizontal down, slightly, dropped track had even broken, car) he had been might then door slide out from the it, none broken. noticed and there top track. Dugas shoved He also that he and stated stop door the door hard only it had hit fell off after LOQUITUR RES IPSA stop. dоor contends, The railroad rea- several accident, five Within minutes sons, ipsa loqui- doctrine Arnold, Jr., foreman F. a car C. incorrectly applied tur was in this case. years experience thirty-two KCS with Ordinarily, pre foreman, there are three repairman car a car *4 requisites application to the doc inspected the of the spеcted He boxcar. (1) trine: the accident must be a not find did car door roller tracks and ordinarily them, kind which not occur in any nor would in or loose welds breaks negligence part the absence of on the any of the side sills. he find breaks someone; (2) injury be caused that the car cleaners said by agency instrumentality wrong an or within anything have found defendant; the exclusive Ar- control of the they inspected it. Mr. door if had (3) opening the occurrence must not have if the nold further testified that any voluntary been due to action on had hard door been shoved part Withy Furness, plaintiff, & to stops, door cause the door it could Company Cir., 1960, Carter, F. v. 9 281 that He said bounce off its tracks. 264; Ry. Atchison, 2d F. “might T. & S. Com re- question have” in boxcar Cir., pany Simmons, walking inspection customary v. 10 ceived a yard. when first entered In Jesionowski v. Boston & Maine accident, the car Subsequent to Company, 452, 67 S. Railroad 329 U.S. Texas a of drums carried load (1946), Ct. 91 416 Su- L.Ed. to Company sent and then was Terminal preme consider occasion to Denison, Court had repair shop Tex- in the KATY application ipsa to FELA сas- res Wilkinson, repairman a car E. as. M. es, particularly the “exclusive control” Railroad, that testified KATY features of that doctrine. support metal had several broken boxcar including car, a underneath braces brakeman, In that while case a a bro- that He stated cracked side sill. switching cars, process killed was when vibrations ken sill will cаuse side throwing derailed, him when a ear was running. These vibrations the car Appeals for to his death. The Court low- spot door’s on the cause a weld ipsa res had held that the First Circuit drop Mr. down. er track to break in ex- loquitur not be invoked an could de- structural that such stated Wilkinson growing a traordinary out of accident might fall the door to have caused fеcts ac- included set of circumstances which testimony Mr. off. Neither Wilkinson’s injured person. Evidence tivity of the repair the car card of order nor sufficient on behalf of the railroad top any track defect showed compel, authorize, a but not door. the car’s finding caused that the derailment in inspector negligence Weis, by the deceаsed ear former J. H. a handling un- stated There the switch. who testified
KCS particu- this could that from which a cross-examination evidence der by type where was caused one that the derailment of boxcar was found lar frog operated top with a track in a defect a doors are attached disputed spring This was bottom mechanism. on the rails. slide 825 frog essary in it be referred evidence to the effect pleadings, good Pennsylvania in both Fassbinder v. were condition switch Cir., 1963, Company, F. the derailment. Railroad before and after 859; Valley 2d Ramsouer v. Midland gen- Subsequent to a discussion of Company, Cir., Railroad 135 F. principles applicable the use of eral 2d 101. ipsa, Supreme held res applied by the First Circuit the rule as Jesionowski, pointed out in As “* * * supra, juries rights from would bar the Act creates federal negligence protected drawing an inference of federal rather than state op- law, Bailey Railroad, in all of unusual accidents Central Vermont account injured person 87 L.Ed. erations where (1943). operations, participated himself though op- proved even The next attack is aimed at the trial things under his con- erations of the ipsa. instructions on res This the accident. trol did cause (which Those instructions we have power duly viewpoint restricts clarity) paragraphed fol- were as. fact, juries questions of to decide lows : right jury’s draw this case the “Further, instruct the Court would the suf- from evidence and inferеnces regard you to the doctrine support ficiency that evidence ipsa loquitur, the mere fact questions. A con- Federal verdict are standing alone, happened, *5 ipsa ceptualistic interpretation of res expressly not, otherwise does unless loquitur this never been used has stated, permit in- the to draw the jury’s power to to reduce the Court was caused ference that accident the facts. Such draw inferences from negligence. by anyone’s unduly interpretation the narrows “However, exception is an there applied it.” this Court has doctrine as general the doc- rule known as this judgment Circuit of the First The ipsa loquitur. trine of res was reversed. specific plaintiff’s “In addition argues thаt The charges negligence de- the of Dugas opening the boxcar door was at relying fendant, is also R. P. partial least in control of the instrumen ipsa upon of res lo- here the doctrine tality injuries, meaning came thus de whence the quitur, term a Latin which is feating application ipsa of the res the speaks thing or occurrence that the doctrine. for itself. opinion are of the that the teach- We ipsa loquitur that means “Res ings rejec- of Jesionowski mandate the may warrant of occurrence facts argument. tion of this negligence, not that an inference inference, they compel such an Moreover, it is the settled law negligence evidence furnish loquitur ipsa this that res is lacking. may be where direct evidence proper though plaintiff even at weighed, “But, to be evidence it is tempts prove exactly happened, what necessarily accepted as suffi- to be not Railway Company v. Texas & Pacific explanations cient, call which Buckles, Cir., 1956, 257, cert. 5 necessarily rebuttal, it re- that not or 1052, denied 100 explanatiоn or rebuttal. quires such 1498; City L.Ed. Kansas Southern Rail injury thing causes which When a way Cir., 1956, Company Justis, 232 de- of the control is under the which 833, 77 S. F.2d denied 352 U.S. cert. inas as such accident and an fendant 49, 1 Ct. L.Ed.2d 53. things not ordinary does course being uses in control ipsa one if the of res lo occur Since doctrine evi- proper care, reasonable it affords quitur not nec- a rule of evidеnce falling off. think that reasonable stead We rea- in the absence of a dence disagreed injury from arose men have explanation sonable could not that the these factors were indeed exclusive- of care. that want the defendant’s ly employer, within the of the control “Therefore, would employee. not the you preрon- you if from a struct find thing controlling significance is the fact Of evidence derance given, injury, in this that when this instruction was which which caused under counsel for the railroad did construe the door which was case was defendant, impact and an as he now us to its the control of the it, ordinary appellate construe at He as such as level. things object if the оccur the instruction on course does care, proper being ground it amounted to a directed one control uses giving prepon- objected you find from a verdict. He further any all, arguing ipsa the door instruction at derance evidence inju- contributing jury retired, cause before Rule Federal was a ipsa plaintiff Procedure, ry, you of Civil that “rеs then will find for Rules loqui- proper ipsa was not a of res submission.” under the doctrine not call the attention of the Court to the tur.” terminology possibility that problem is to instruction with the or of the door was incorrect mis- control language of the last be found leading or both. paragraph, told wherein trial court under door was We, therefore, decline in the сir defendant, rather than control al cumstances of case to reverse on this leaving for the that as an of fact issue leged presented to the error not trial says jury. decision of the The railroad Steamship court, Dennis v. Cor Central amounted to verdict this a directed Cir., poration, F.2d plaintiff. judgment lia- It follows face, On its this is not an unreasona- bility be аffirmed. ble contention. proceed to a consideration of We now *6 disputed It is not the caused that door instructions, phase of the deal- another injury. disputed hardly can the It be damages, ing the of calculation that this was such an “as appellant appropriately did which the ordinary things of not occur course does which, opinion, object, in neces- our and Then, the use of at due care”. solely trial on remand for a new sitates glance, appear if the first it would that damages. quantum of the in railroad as a matter was con- lawof Chesapeake Railroad Com- Ohio& and trol of the door the closed circle was Carnahan, 241, 36 S.Ct. pany 241 U.S. jury would have alternative no (1916), Suprеme 594, 60 L.Ed. plaintiff. to find for the approved ad- which an instruction Court per- jury in case for FELA We, however, vised an do find the matter assessing damages injuries quite simple. that sonal to be so might “the take into consideration Obviously, railroad was control suffering plaintiff, pain his and being of the boxcar and it cleaned was bodily injury anguish, sus- mental Nobody at railroad contеnds direction. him, loss, by pecuniary his his tained any that over its con- control capacity power work for and and loss of see no record dition. We evidence in the upon Numerous his its effect future”. any that there was in the door it- defect reported decision and cases follow this Any defective which condition self. may standards. these ear, havе existed affect- already pointed out ing stability rails, have of roller We rights pro federal equipment the Act creates tracks or other which the that as to the that federal law and door should have adhered to the car tected propriety jury confusing of instructions federal would and indicated ad- controlling. grounds recovery, decisions are ditional provide law doesn’t for.” Long
In Grunenthal v. Island Railroad Company, Cir., plaintiff responded Counsel grounds, requested reversed on instructions “combine anguish 309 mental L.Ed.2d construction” and that (1968), the there would be no Second held: confusion “that two pointed are related”. He further jury prop- “The instructions out Court had said the recovery
erly of a for the lоss allowed “to reach result on these elements of earnings, past earn- the loss of future damages so duplica- there no will be suffering ings, pain and and inconven- any tion of of one item”. including (emphasis added) ience ‘the injuries upon added, however, effect of his normal there if pursuits pleasures any of possibly and life’.” about Court doubt prefer clarify it. The foregoing language think We thought base, that he had touched as significant; injuries the effect of indicated, counsel had and declined to upon pursuits pleasures the normal say anything further. item, sepa of life is an included not a now We examine what the record one, is, pursuits rate normal actually shows to said been pleasures of life are to be included jury. damage The elements of were part pain, suffering, aas and incon following submitted sepa venience. It is not a factor to be language, adding emphasis to the use of rately independent measured an the word “and”: ground damages. physical anguish pain, mental “Such While we have found no federal enjoyment and loss of of life аs the case, none, and we have been cited plaintiff has sustained from the date subject vitality” “loss we trial, of- occurrence until the date equally certain that this in item pain anguish physical such mental consequences cluded element enjoyment plain- loss of life as physical injury, separately to be probability tiff in reasonable sus- independently measured the basic beyond date, tain in the future this premise. earning power, physical such loss charge completed, When vitality impairment, loss objected, as follows: plaintiff has sustained from the date charge where the Court “[I]n of the occurrence until date of the *7 charged in the dam- elements of trial; earning power, such loss of ages recovery could be had on mental physical impairment, and loss of vital- anguish enjoyment loss of of and for ity plaintiff in reasonable as will recovery physical life and then im- for probability in the future sustain be- vitality, pairment of and loss I think yond this date.” really they same, are one and the but up The Court wound with the follow- given way charge the the it ing language: sounds likе there are a total of four involved, anguish, “Further, you elements mental are instructed in con- enjoyment life, sidering physical plaintiff’s injuries loss of im- of and pairment vitality, damages you may and loss of there also take into damage. separate physical four impairment elements of account and loss Really anguish vitality mental and of as loss of еn- indicated herein. For joyment thing you may example, is one and I believe consider value proper anguish, physical impairment, instruction mental of the loss such suffering pain vitality you and and on other find associated as hand, physical impairment plaintiff’s you and those with condition which already your physician considered in because his he felt could have Dugas’ rigors day pain or not withstand its for Mr. on the same evaluation anguish, future, injury. past placed or His
mental feet were fragments injured you and cents find traction so the the dollars bone end physical impairment pulled place. could plaintiff’s into be After fragments positioned vitality not consti- were should as best as and loss they recovery be, dаm- could a metal other nail three a a double and tute long quarter already ages you considered.” inches with an have attached leg plate placed metal to con- Despite naturally reluctance fragments. nect shattered bone setting experienced act aside appliance leg This metal remains in the damagеs quantum awarded a bad probably will not removed unless man, unemployed injured, can ly who develops. irritation occupation that of a com but no follow Dugas ap- It was estimated that lost laborer, compelled to this Court mon proximately pints six of blood before clearly appears that the cited do it for during surgery. developed Anemiа “loss repeatedly asserted instructions high from the loss of blood and transfu- vitality” enjoyment “loss of life” and required. sions Subsequent hospi- were they independ separate and if were myelogram talization and a disclosed a includible, ent, items rather than ruptured rup- disc. In the future the least, very damages, or, were at the may require tured laminectomy disc a сould con have couched terms which spinal fusion. and/or correct stand fused the Glass, duty apply re Dr. orthopedic in this had a Walter ards it sur- geon despite gard. true warn who treated And this is testified that: “ * * * instructions, ing which at the close shortening he has duplication only in connection mentioned leg, he has some restriction of motion vitality”. “loss of joint hip due tо scar tissue for- hip, mation about he has the pay dam must The defendant plate ternal fixation and screws and ages, a is entitled appliance Jewett still in there. according measure those words, other he is nowhere near legally correct, (cid:127)clear, plainly enunciated prior same condition that he was standards, obligation which triаl injury.” but did not ac court no doubt intended twenty Some months after the acci- complish. dent, appellee experiencing pain was still leg. in back Dr. also stat- Glass THE OF VERDICT EXCESSIVENESS appellee fifty per ed at least $200,000 Appellants maintain that permanently cent disabled. and is result verdict excessive injury At time of the jury prejudice trial or confusion. old, grade forty-twо years fourth for a trial overruled a motion new court formal education no request for a remittitur. nothing schooling. He was trained Since we have concluded case except un- manual labor. He has been new be remanded for a trial on *8 the accident obtain- successful since alone, ordinarily damages it issue of ing employment. neсessary not for us to be consid- assignment jury authority Grunenthal er awarded On supra, Company, damages. Since, Long however, Railroad excessive Island v. damage to have very judge award tried is the issue which be we feel should anew we that we discuss excessive. been subject. CONCLUSION injuriés required Appellant’s extensive on judgment of the District Court undergo The medical treаtment. didHe affirmed, liability day issue surgery until after judgment quantum as to the damages is. reversed and remanded for a solely on
new trial that issue. party his or its
Each will bear own
costs. Judge (dissent-
WISDOM, Circuit
ing) : respectfully
I dissent. happen to fall
The boxcar door Dugas by. passing he It fell as was opened
off he the door. when banging opened the door doorstop. circumstances, In these permitted decide should the control
whether the door was purposes applying or not ipsa loquitur
applying the doctrine. effect, judge the trial took over the
jury’s prerogative to decide the issue ap-
control and a verdict on directed
plication ipsa of res to this case.
I would reverse for a new trial. holding
I concur the Court’s judge’s
the trial instructions on
“could have confused the as to the apply.”
correct standards Brooks,
Cordell BROOKS and Excel C. Plaintiffs-Appellees, America,
UNITED STATES of Defendant-Appellant.
No. 72-1457. Appeals,
United States
Sixth Circuit.
Argued Dec. 1972.
Decided Feb.