Robert Livingston POMEROY, Executor, Estate of Elizabeth Eagan Pomeroy, Appellant, v. PENNSYLVANIA RAILROAD, a corporation, Appellee.
No. 12104.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 1, 1954. Decided Feb. 18, 1955.
223 F.2d 593
I would reverse and remand with directions to make findings as required by the statute. And because, as I have tried to show, the evidence presently in the record is an inadequate basis for a rational determination on the issue of appellant‘s competency to stand trial, I would also direct that the parties be given the opportunity to present additional evidence. And if, for example, the trial court were to determine that appellant had an eight-year-old mentality, it could then require submission of the sort of evidence essential to a factual determination of the question whether this circumstance, alone or in combination with others, deprived appellant of the capacity to stand trial, considering, of course, the specific nature of the charges against him.
Mr. Hyman Smollar, Washington, D. C., for appellant.
Mr. James H. McGlothlin, Washington, D. C., with whom Mr. James C. McKay, Washington, D. C., was on the brief, for appellee.
Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.
BAZELON, Circuit Judge.
Sixty-nine year old Mrs. Pomeroy and her husband were passengers on a Pennsylvania Railroad train en route from Trenton, New Jersey, to Washington, D. C. About five minutes before the train reached the station in Washington, she told her husband that she felt warm and was going to the vestibule of the car to get some air. She walked toward the rear of the car and was never again seen alive. Later, her body was found on the tracks about 2 1/2 miles from the station.
Her executor brought this suit for wrongful death. The complaint alleged the ownership, operation and control of
At the conclusion of the plaintiff‘s opening statement, the defendant Pennsylvania Railroad moved for a directed verdict. The trial court granted the motion upon the stated ground that “the vestibule door [through which decedent is claimed to have fallen] was not under the exclusive control of the defendant railroad and there was no offer to prove that the factors outside defendant‘s control did not bring about the accident * * *.” The question before us, as formulated by the parties, is whether the jury might properly have inferred negligence on the part of the defendant from the facts that the decedent fell to her death from a moving train at a point where the track curved; that the vestibule door was open between stations; and that it was highly improbable that she could have opened it herself.1 The appellant contends that the doctrine of res ipsa loquitur applies to these facts so that the jury may properly infer negligence in the absence of contrary proof by the defendant. The appellee, on the other hand, maintains that the doctrine is inapplicable to this state of facts.
The doctrine of res ipsa loquitur contains no absolute standards by which to determine its applicability to a given situation. “The phrase is nothing but a picturesque way of describing a balance of probability on a question of fact on which little evidence either way has been presented.”2 The court is required to
The opening statement here offered to establish more facts than are comprised within the question presented on appeal. The determination of the applicability of the doctrine ought, therefore, to have been postponed until the ascertainment of those additional facts. From the opening statement, this is not merely a case of an unexplained fall from a moving train. The plaintiff offered to prove that a brakeman had found the vestibule door open at approximately the point where decedent‘s body was later found and that he had thought the circumstance of the door being open was not unusual. Plaintiff‘s counsel added that “* * * we will tell you more about that door later * * *.” He offered to prove further that there was a curve in the track at about the point where the accident occurred, saying, “The amount of the curve I don‘t know but it will be established on the witness stand by employees of the [railroad].” He concluded by asserting that the railroad was negligent in keeping the vestibule door open between stations.
Without expressing any opinion as to whether a jury could possibly infer negligence from the naked facts stated in the formulated question, we think it clear that the possibility of reasonable inference can more intelligently be judged after presentation of the offered proof about the circumstances of the accident. We do not read the opening statement as a mere assertion of liability to be inferred from the fact of an open vestibule door, but rather as an offer to prove, through the employees of the railroad, circumstances from which the jury can infer that the railroad negligently kept the door open, thereby causing the accident. To be sure, plaintiff‘s counsel failed to spell out with any specificity what testimony he expected from the employees of the railroad. But an opening statement “is ordinarily intended to do no more than to inform the jury in a general way of the nature of the action and defense so that they may better be prepared to understand the evidence“; and, to direct a verdict upon an opening statement, “it must clearly appear, after resolving all doubts in plaintiff‘s favor, that no cause of action exists.”5
The trial court reached the question of the applicability of the doctrine of res ipsa loquitur after first determining that the alternative theory of specific negligence had been abandoned by the plaintiff‘s counsel in the opening statement and an ensuing colloquy at the bench. We think that determination as
Reversed and remanded for a new trial.
WILBUR K. MILLER, Circuit Judge (dissenting).
I cannot go along with my brothers of the majority, as it seems to me the trial judge was clearly correct in directing a verdict for the defendant on the opening statement of counsel for the plaintiff.
According to the statement, Mrs. Pomeroy left her seat and went toward the back of the coach. She was not seen thereafter by anyone until, some hours later, her body was discovered about two and one-half miles from the Union Station. “That is the only thing we know about it,” said plaintiff‘s counsel to the jury, “except what the facts developed
Such are the only facts stated upon which plaintiff sought damages from the railroad company. There was no offer to prove who opened the door, nor how long it had been open when the brakeman discovered it. It is common knowledge that for safety reasons vestibule doors are not kept locked and can be opened by any person of ordinary strength. Yet there was no offer to show the door had not been opened by the decedent herself or by some other passenger, except the suggestion that it was highly improbable that Mrs. Pomeroy would have been strong enough to open it.
The trial judge aptly and succinctly stated the applicable principles of law when he said:
“Under this set of facts, assuming that the jury should have found all the facts stated by plaintiff‘s counsel in his opening statement to be true and gathered all reasonable inferences therefrom, it would have been required to speculate as to whether the accident resulted from some cause within the railroad‘s control of from the act of some third person or the decedent herself.
“In view of the fact that the vestibule door was not under the exclusive control of the defendant railroad and there was no offer to prove that the factors outside defendant‘s
control did not bring about the accident, the doctrine of res ipsa loquitur is inapplicable to the case. * * *”
In my opinion, the following language of the Supreme Court in Pennsylvania R. Co. v. Chamberlain, 1933, 288 U.S. 333, 339, 53 S.Ct. 391, 393, 77 L.Ed. 819, applies as well to this case as to that one:
“We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover. [Cases cited.]”
The majority say, however, that “From the opening statement, this is not merely a case of an unexplained fall from a moving train.” They do not read the statement of plaintiff‘s counsel “as a mere assertion of liability to be inferred from the fact of an open vestibule door, but rather as an offer to prove, through the employees of the railroad, circumstances from which the jury can infer that the railroad negligently kept the door open, thereby causing the accident.”
It is observed, however, that the only thing counsel said he would prove by railroad witnesses was the degree of the curve in the track at the point where it is supposed Mrs. Pomeroy left the train. Counsel said, “[T]he amount of the curve I don‘t know but it will be established on the witness stand by employees of the Pennsylvania Railroad Company.” I suggest that the curve, whatever its degree, is not a fact from which negligence could be inferred. At one point plaintiff‘s counsel said, “[W]e will tell you more about that [vestibule] door later * * *” But he said no more about it except to describe it as a dutch door.
In a bench colloquy following his opening statement, plaintiff‘s counsel told the court he was relying on the doctrine of res ipsa loquitur and was not contending there was any specific negligence “unless it develops in the course of the trial, Your Honor, but I am not contending that.” The majority seem to treat this statement as an offer to prove specific negligence. To me it is no more than an expression of hope that some proof of negligence would unexpectedly appear, but that what it might be, counsel had no idea.
When plaintiff‘s counsel could state no negligent act or omission of the railroad company which caused Mrs. Pomeroy‘s death, and could offer to prove no fact or circumstance from which causal negligence could properly be inferred, the trial judge had no alternative but to direct a verdict. He would not have been justified in permitting plaintiff‘s counsel to proceed with proof merely because counsel hoped, like Mr. Micawber, that something would turn up. I would affirm the judgment of the District Court.
BAZELON, CIRCUIT JUDGE