240 F. 73 | 6th Cir. | 1917
In an action brought by Derr, in the court below, against the- railway company, it appeared that Derr was employed, by it to assist in transferring, from one car to another, a steam boiler which was being transported in interstate commerce. Jurisdiction rested upon the federal Employers’ Liability Act. The two cars were- set alongside each othef, upon slightly diverging tracks, so that the cars were 3 feet apart at one end and 8 feet apart at the other. The defendant’s foreman directed Derr and- other laborers to take two pieces of ordinary 56-pound rail, which lay in a pile of used rails in the yard, and place them, as skids, upon the two cars, so as to' slide the boiler across upon them. When the boiler was about midway, the rail with the longer span broke and Derr received the injury for which he sought to recover. Against defendant’s objection that there was no evidence tending to show negligence, the court submitted that issue to the jury, which found for Derr; and whether this ruling is correct is the only issue to be considered.
The bill of exceptions contains all the evidence; and the case is remarkably barren of the proof usual in such cases. . The distance spanned by each rail does not appear. No witnesses competent to speak expressed an opinion that such a rail was too small to carry this boiler, nor that it was in any degree likely to become unfit for that purpose because it had been used, nor that the presence of a section of such a rail in a pile in a yard indicated that it was likely to have been used to such an extent as to affect in the least its ability to resist a breaking strain. One piece of the rail, displaying the break itself as exhibited looking in one direction, was put in evidence and is a part of the bill of exceptions. The question, therefore, was whether, from the fact that the rail broke, from the fact that it was a used rail, selected without very careful inspection, from looking at the broken end, and with the aid of only common knowledge as to what inferences might be drawn from tírese facts, the jury was authorized to find that there was negligence.
Unless a rail of this size was too small for this use, or unless a rail, might be unfit merely because it had been used, then there was no negligence, unless the defect which caused the rail to bréale was of a character which should have been discovered by such inspection as should have be.en made. It was for the jury to say, depending upon the character which is attributed to this rail, whether there should have been a careful and detailed inspection or test, or whether such superficial observation as the foreman actually gave was enough to satisfy the existing obligation. In either event, the next question for the jury would be whether the inspection so found to be due would have discovered the defect. The break itself as shown on the rail, gives no. help in answering these questions. Its peculiarities may or may not indicate that the defect could have been seen or ascertained by inspection or test; to a man of only ordinary knowledge, they indicate nothing upon these subjects. Without the aid of testimony, this, also,.must be guesswork; and a case may not be submitted to the jury where there-is, at the most, only a balanced probability that the actionable negligence existed. Richards v. Mulford Co. (C. C. A. 6) 236 Fed. 677, C. C. A.-and cases cited.
It is not improbable that plaintiff may be able to produce evidence-upon some or all of these theories of negligence sufficient to- take- them to the jury; but we think the facts themselves do not make- a primas facie case, nor authorize the necessary inference.
The maxim and its reasons and the extent of its application were very fully discussed by Judge (later Mr. Justice) Turton, speaking for this court in Cincinnati Co. v. South Fork Co., 139 Fed. 528, 532, 71 C. C. A. 316, 1 T. R. A. (N. S.) 533. That discussion remains entirely satisfactory and unaffected, so far as we know, by any later authoritative decisions.
“Manifestly a presumption of negligence does not arise upon mere evidence of an injury sustained. The inference logically as well as legally deducible is necessarily dependent upon tlie nature of the accident, tlie surrounding circumstances which characterize it, and the relation of the parties. * * * Many accidents do not speak for themselves. The maxim ‘res ipsa loquitur’ does not, therefore, apply when the circumstances in evidence are of doubtful solution. * * * In other words, the presumption is one which arises, not from the mere naked fact of an injury, but from the circumstances which characterize the injury. * * * In each action for a tortious injury the question as to what evidence will make a prima facie case of negligence and require an explanation from the defendant will depend upon the nature and circumstances of the injury and the measure of care due from the defendant.”
Applying these principles to this case, and in the manner and for the reasons above stated, we think tlie plaintiff’s proof failed to show a satisfactory, tangible/and substantial basis upon which the conclusion of negligence could be so supported that it would be an inference and not a guess. We have the less hesitancy in reaching this result, because it seems clear that, upon a new trial, the parties will be able
The judgment is reversed, and the case remanded for a new trial.