Texas and Pacific Railway Company v. Walter N. Buckles, Jr., and Silas R. Stanley

RIVES, Bеfore TUTTLE and CAM- ERON, Judges. Circuit RIVES, Judge. Circuit appellee separately Each sued under Employers’ Liability the Federal Act1 injury arising for acci- out of the same dent, and the actions consolidated were plaintiffs for trial. Both members were yard engine of a crew on a switch bound temporarily for the round house and stopped by light, at which an- red time engine attempted couple other switch plaintiffs’ onto the rear thereof. evidence, jury accepted, which the tend- prove coupling attempt ed to that such customarily made, was not one there warning рrior impact, was no engine speed was the second excessive under the circumstances. in returned a verdict for Buckles $26,400.00, the amount of Stan- ley $32,800.00. in the amount Appellant specifies twenty some relating rul- claimed errors to various ings upon district court evi- refusing mistrial, dence, to declare a refusing special requested charges, general charge jury, de- to the and in nying new the defendant’s motion for a trial.

Specifications 1 and 2 relate plaint children to the references Ordinarily, testimony as to a iffs.2 seq. attorney statement, opening 51 et § 1. 45 U.S.C.A. In his to the children of referred Buckles par- 2. As abstracted from the briefs of the for mis- defendant moved his client ties, references follows: reference. basis of this trial interrogated Stanley de- as to the the trial the wife of course of In the salary attorney his for income Stanley tax ductions wheth- asked any compelling Stanley five children. After the ac- he had when had reason er trial, cident, February. why but before his sixth child work in Her he should point judge reply began, this ruled born. At with six “A man children —” observing Stanley, again point income tax with defendant moved for at which exemptions depends the number а mistrial. gov- admonish the but did to be In the course of the Buckles was family replied the fact of and instruct- erned he asked if had children and them, effect, “Three, to restrict this evi- ed sir.” Defendant moved for a to the determination of income tax. dence mistrial on the basis of this statement. pathy. case, evidences obeyed Pennsylvania sider children S. at where children were should ry restricted of income made should take this made evidence The number of their other deductions That is not in its any instructions, fendant had filed its case, however, prior plaintiff’s ing: work.” would have been be deduction for loss of ing power in the manner set if in the income tax was orderly conducted, award “(i) collateral issues received further reduced request page an issue instructions had the subject regular specifically usually the earnings A assumption by the court to the family made tax, appeals manner person’s instructions reduced to Co. v. among was to income as a result and the absence dependents, by assume that employment, and plaintiffs continued 26 plaintiffs’ by income taxes is irrelevant.3 instructed not to honored or diminished into consideration.”4 as folows: other the defendant. paid L.Ed. 141. you Roy, supra, in which the trial forth referred to the estimated nor the number problem, request others the on each occasion by a reasonable prejudice would strengthened upon to the present tax purpose. We of the court. above children being implic by trial, liability or the the the “ was thus plaintiffs of other question future actual which * * In this value earn- 102 must In this follow- special sum sym court jury con was you ju U. de- * Boyce Counsel court Friday explained fendant. The the other side mediately.” even if I will caution amination last to all a witness draw Egan. der nothing to do but sustain the tion.” timony. which were sent other side and also went on to learned of ly, they pected to all witnesses in the event new and to ence last quired ^[*] “If “I misunderstood. “Under those “Our go objection, along the advance responded: furnished to counsel for Friday, the when he examined the ahead you you expected give should impression Dr. ruling instructions like .only and failed September, expressly the testify do have last immediately, names and I think with he them stating: Boyce you court at first used be you then notify plaintiff did circumstances, I see and let nature of their had out him. will а short until pre-trial be sure and not know that was you you known witnesses the him I had been a month or to the other doing given addresses him I Buckles. The are entitled the future going had known Buckles notify Mr. minute or examined summary prompt- testify. preceding counsel, confer- sustained so to the objec- with- to the de- side ^[*] im- tes- tell un- ex- say ex- re- then so Dr. Specification ac relates court, think, permitting Dr. bet- court in we the trial The district tion of testify expert Boyce position wit construe an Court to than this ter W. S. Buckles, prac- pre-trial apply ness, primarily rules of for the its own objection tice, nor defendant we find no error abuse over previously court. had in this action name the witness’ discretion Pennsylvania Roy, tax Co. v. U.S. instructed as to income have the 3. Slattery plain consequences v. Marra of awards 26 L.Ed. Cir., Bros., in a re F.2d The cases are reviewed tiffs. opinion, v. Chi cent district court cago, Combs Ry. upon Minneapolis pass Paul, called & Omaha are not St. Co., D.C.N.D.Iowa, F.Supp. defendant was entitled to whether ishing defense, Specification trial 45 U.S.C.A. now is that hospital excluding rec occurred The accident in that case § court erred amendment, Apрellant’s insistence before the enactment of that Buckles. ord of By brought 1732(a), that, that but afterwards. under 28 U.S.C.A. suit vestige “every made in that amendment record was admissible because regular hospital’s assumption busin oblit- doctrine of of risk was course of the objecting, in Buckles’ counsel erated from the law”. Tiller v. Atlantic ess.5 purpose 58, 63 of introduc Line sisted that the real ing Coast Charge get hospital 444, 446, was to before record S.Ct. 87 L.Ed. 610. therefore, had was, properly who doctor the views refused. resign hospital been asked to staff, available and who was not Specificаtion 6 is that the examining After cross-examination. ‍‌‌​‌​​​‌​‌‌‌​​​‌​‌​​‌​​​​​‌‌​‌‌‌‌​​​‌​‌​​‌​‌​‌‌‌‍give refusing special court erred in record, “I will the court stated: sus requested defendant.7 ground tain it on the that the doctor upon Appellant particularly an ex relies not here cross-examination.” pression concurring opinion Mr. in of the hospital in not record offered evidence is in Tiller Atlantic Justice Frankfurter v. brought transcript in of rec forward the Co., supra, at 318 U.S. Line R. Coast exhibit, appeal, and ord on nor as an page 71, page S.Ct. at consequently position to we are not in “By specificprovisiоns in Fed- the excluding say the the court erred in that Liability Act, Employers’ has it eral record, “in nor that such error was away swept ‘assumption of risk’ justice.” with substantial See consistent negligence estab- once a defense 61, of Proce Rule Federal Rules Civil But it has left undisturbed lished. dure, 28 U.S.C.A. meaning ‘assumption other of the employee risk’, namely, of an trial Specification the 5 is that being injured consequence of as a special refusing give court erred employ- exposed to a risk which the by requested defendant.6 could er in the exercise of due care by appellant, v. Owens relied on the case recover, not avoid is not entitled to 6, Railway Co., footnote Pacific Union negli- employer was not since the gent.” spoke what Supreme supra, of Court assumption of defense of remained prior appellant’s amendment to the suc- the 1939 If counsel had read the risk concurring Liability ceeding opinion, Employers’ abol- page Act Federal of discussion has been considerable must be for the defendant. 5. There verdict admissibility hospital Railway Co., records as v. Union Pacific Owens regular 1271], business. the course of [63 entries in L.Ed. U.S. 715 S.Ct. Wig in 5 are collected The authorities 1683.” pp. Evidence, ed., 1530(7), § more on 3rd requested charge read: The 1707, pp. 36, Id., § and 6 negligence “In the absence of requested charge part employee employer, road: his 6. The an of a employee engaged car- an of a common “Where railroad interstate commerce by operating injury by railroad in interstate rier assumes the risk of virtue of anticipates resulting dangers exposure ordinary commerce the risk of his possible occupation. you Therefore, of a fellow- if from the conclude complainant injured employee, or circum- should under as a result anticipate risk, in, to, stances and decides of a hazard inherent employment or incidental particular risk, to chance that he cannot on a railroad and not as a injury resulting your negligence, an recover for from such result of defendant’s ver- negligence. Therefore, you if find that be for dict should the defendant. Tiller complainant anticipated, Co., have should v. Atlantic Coast Line R. 318 U.S. anticipated, impact resulting 610]; from the 54 [63 S.Ct. 87 L.Ed. Roberts coupling attempt knew, Cir.], or should Fisheries v. [Vessels United knоwn, 288; Pavey risk inherent in such & Texas Pacific attempt risk, your Railway Co., an chanced 634].” [89 La. So. knowledge of both men.10 common he found answer would have given per- they contention: “ supra) (see mission to use footnote ‘Assumption de as a risk’ knowledge in a men embraces negligence has fense where there is occupation sometimes hazardous are But been written out Act. the. opinion of killed. deference to the With ‘assumption risk’, in the sense Camp, Thompson v. the Sixth Circuit in employer is not liable supra, the court did we think that avoid it could not those risks which refusing special err this case duty care, of its the observance charge 14(c). law. written out has ambiguity phrase Because of its Specifications are 9 and ‘assumption hazardous of risk' ais refusing to trial that the court erred in legal As a means of instruct tool. (h) charges special 14(d), (f) give ing con jury, to create is bound appellant requested defendant.11 dis therefore be fusion. It should charges requested merely, “The states page 63 S. at carded.” 318 U.S. practically statements self-evident page Ct. given and each should have been supra.” authority Thompson Camp, Speсification “ ** agree appellees that, with the give special refusing court erred in charge system our is considered under 14(c) requested defendant.8 ordinary experience, having sense Thomp Appellant upon the case of relies taking thought capable into and is as Camp, Cir., son v. life as facts of account self-evident appellees that the record insist while the anybody else." any proof to sus is devoid in this case charge a mat it is not Specification and that trial tain the is that judicial refusing give special knowl which we can take ter of in to court erred edge ; especially, charge requested by in fact that 14(g)12 view the defendant. plaintiffs expectancy authority con the work is for this novel No cept. cited expec materially prop charge, think, than their life less was was The we assigned tancy. They that call also erly attention to reason refused for the charged carefully implica and that work Its specifications court 9 and 11. binding.9 expectancy tables were not to unable life more blessed be that it is tion stipulated had, fact, least, is, say as to parties in The work to than to to work expectancy expectancy and life the work debatable. 9. “These life 8. “A 10. “At this work Mr. Buckles these two men. We they longer same work cupation, is Plaintiffs other their pectancies have been pectancy hazardous riods less not conclusive person engaged both had a expectancies. They might of time.” expectancy expectancy hand, age. likely than would than might such as occupation.” time, they might to live and Mr. a person engaged die before tlieir full ex- work figures, Your want and life work or that of to reached, and, in a hazardous оc- want expectancy figures binding upon Stanley Honor, indicated expectancy live or for lesser age expectancy stipulate complainant, longer of life ex- were the the I believe in work for stipulate a non- on the as than you. pe- a 11. will dimmish with would plainant expectancy might with effort—that ings the basis railroader of defendant’s tancy employment “(g) “ “ “(f) (d) (h) ^{[*****] [*]} money.” involved in the of 40 represent money A Complainant, Any a without his person engaged person’s earnings may passing of this is, ^[*] years.” in his requirements award for loss of probability years increasing suit, not continue to meet particular job. ^[*] having even if he had not accident, and a life and received without years. that given physical ^[*] lived to life to work for age.” the earn- ‍‌‌​‌​​​‌​‌‌‌​​​‌​‌​​‌​​​​​‌‌​‌‌‌‌​​​‌​‌​​‌​‌​‌‌‌‍continued earnings diminish expec- labor ^[*] com- is Specifications 12, 14, opinion evidence, unordinary not 16 and do “an such as enough merit, opinion, to jolt”, got”, in our one “hardest he ever heck “a Specification is crash”, discussion. warrant a “It was the blow hardest judge portion that the trial erred I have ever think received.” We charge relating assumption of ample of the there from evidence charge part risk.13 liberty That of the which the was at find an clearly jolt jar such, ordinarily the reasons stated correct for unusual as discussing specifications 5 does not occur in the absence of some- negligence. one’s Specification 15 is that the charge judge portion erred loquitur of the used in Res relating ipsa loquitur.14 charge, to res 14, supra, It is footnote charge applied contended a misstate that the actions Em under the Federal law, ployers’ Liability ment of but this Act and other federal proper application permissible case for of the doc laws means no more than a ipsa loquitur. All of trine of res the inference of from occur engine type simply crew on the forward itself. rence It one of cir seat, about, knocked out of his an one cumstantial evidence. The use of sitting position easily other over on Latin the more understood standing engine English thing head translation, speaks floor. “the weighing still, itself”, unnecessary on and sev with brakes has created an pounds, eral hundred thousand mystery, air of the source has been knocked several was other feet. There of much confusion in The ac the courts. portion evidence, read: This affords reasonable in the ab- you question injury explanation, instruct “We now sence of assumption risk. suit arose from the defendant’s want of care.” brought against a railroad under this law “ ** * ipsa loquitur means that damages injury to to recover for an em- the facts of the occurrence warrant the employee ployee, such does not assume they negligence, inference of not that any employment any risks of the of compel inference; they such that an fur- injury resulted, case where the in whole negligence nish circumstantial evidence of part, negligence or in from the of may where direct evidence of it be lack- agents employees of the or rail- of the ing, weighed, but it is evidence to be not road.” necessarily accepted sufficient; to bo as portion charge they explanation of the read in rel- This call for that tal, or rebut- part: necessarily they require it; not evant that specific charges they “In addition to their of that make case be to decided defendant, against plaintiffs negligence jury, they the not that the forestall rеlying upon ipsa ap- loquitur, here the of doctrine verdict. Res plies, where it ipsa loquitur, Latin which is a term does not convert the defendant’s thing meaning speaks general that the or affair issue into an affirmative defense. ipsa loquitur in, ques- for Res itself. means that When all the evidence is the may jury prepond- of the facts the occurrence warrant tion the is the whether negligence; plaintiff.” Sweeney the inference of not that erance is with the compel they inference; they Erving, 240, such 233, an that 228 U.S. 33 S.Ct. negligence 418, 416, furnish evidence of where di- L.Ed. 57 may lacking; also, rect еvidence of it be but it Jesionowski v. See Boston & weighed, necessarily 452, 457, is evidence to be Maine U.S. 67 S. accepted sufficient, may 401, 416; which to be as 91 L.Ed. Ct. Johnson v. United explanation rebuttal; States, 46, 49, or 391, call U.S. 68 S.Ct. necessarily require explana- 468; McCarthy, that it such L.Ed. Wilkerson v. thing 53, 62, 413, 497; rebuttal. When a tion or which U.S. 69 S.Ct. 93 L.Ed. injury, Corp. without causes fault the in- Geotechnical Cf. of Delaware v. jured person, Co., Cir., 205; 199, shown be under is to the Pure Oil F.2d defendant, Indemnity Co., control the exclusive v. Phoenix Whalen Cir., ordinary is the accident such as in the 220 F.2d note Giacalone things Mfg. Raytheon Co., Cir., course of does not if occur the one having proper care, uses such control it

*264 happen- which from reasonable from cident must of the kind inferences the be ing may an inference If draw itself? We think not. it con-

reasonable men may clusively negligence. appeared men If fair-minded either that there was ques extraordinary jolt jar, inferences, no then the or unusual or draw different jolt Further, jar jury.16 if there or the or con- tion is the cause the clusively established, evidence, the acci from then course must either inference, testimony, rea there would be no room for or other dent itself frоm long sonably the pointing but so as either unusual nature to the defendant the jolt negligence. jar, responsible of the or or the cause thereof one for the dispute Employers’ Lia in such men reasonable the Federal case under reasonably might conclusions, bility Act, at the arrive different evidence must the negli jury hap- negative plaintiff’s own is entitled to consider also the gence pening proximate itself and such inferences sole cause was the might reasonably nega-. though accident, be drawn therefrom17 it need not so negligence all, here, ordinаry contributory on After as in the Jesionowski tive goes case, supra, page part plaintiff 329 U.S. of the since that at page 404, damages, question is not whether and the diminution of eoneeptu- injury neatly may re this if his case fits into some recover loqui- part” interpretation from alistic of res sulted or “in whole tur, negligence 45 U.S.C. but whether the circumstances of the defendant. finding jury justify an as to A. such §§ jolt jar cause or unusual possible to might negligence. thereof was defendant’s It true testimony they glean facts all think that were. the two crews of the members of the testimony However, Tri Speсification is that the engines. their diametrically op- portion conflicting judge led erred in al non-neg- pain conclusions, relating suff future posed according crew alto ering.18 are not ligence, cases While the circumstances, accord, such we think gether Under believed. right add authority rea deprived weight better and the testimony conflicting charge.19 support but direct son McCarthy, Ry. Chicago Co. v. Northwestern & 16. See Wilkerson 19. See 497; 885, 884, 881, 413, Cir., La Candler, L.Ed. 63, 63, 93 283 F. 69 S.Ct. 8 v. follows; 645, 653, concluding Kurn, 1174, 66 S. as v. 28 A.L.R. vender nor 740, in the case L.Ed. “Neither Ct. any es- has ever in world one else Cir., Clark, 6 for these Pennsylvania value v. standard Co. tаblished Gray proof 187; & O. 182, v. Baltimore ever received The ills. F. 673, determining 671, Cir., guide A.L.R. amount Co., F.2d in Pittsburgh, ‍‌‌​‌​​​‌​‌‌‌​​​‌​‌​​‌​​​​​‌‌​‌‌‌‌​​​‌​‌​​‌​‌​‌‌‌‍is, they Packing 461; make v. should Co. allowance of broadly stated, Omaha 594, Ry. Cir., and extent the nature C.& F. W. They Gardner, Cir., injury, 160 F. 599; results. and effect Zumwalt Torts, pp. 303; to allow a reasonable sum Prosser on instructed are 2d determining compensation, 307; on “Evidence and in what as Annotation affecting negligence reliance under the evidence to specific as is reasonable experience by observation, guided ipsa loquitur”, 33 A.L.R.2d their res right. fairness and At sense of and portion sum to which the allowance is an estimated best intelligence exception and con- is any read: determined taken jury, con- future loss of and we are for science of award “While earnings as be much more we vinced that a should reduced just any likely verdict, you above, award made to return a consider- instructed single peri- suffering, ing pain by you if life one and the estimated future any attempt subject od, any, reduc- than it should to reach if not a verdict by dividing yearly the life into tion.” readily It available. Specifications 19 and 20 sent and not court the evi- the district is not to be invoked when action of aimed at the certainly denying available, motion dence is and defendants’ ”** ground mainly actually presented. trial, the when it is on the new re excessive. Without verdicts were counting necessary evi- It is certain that no length, it is suf at the evidence here, evi- dence was all of the absent but say abuse find no that we ficient pre- actually dence was available and was tri that the action discretion and put stand all sented. Plaintiffs on the denying new the motion court al for- the members of the crew the support rec in the without is “not engine, placed ward and also in evidence Ry. Co., 350 U. v. Southern ord”. Neese photographs inside a number of taken Whiteman S. engine. he Each man testified what this Pitrie, Cir., 220 F.2d 914. doing was the others were do- and what judgment is therefore they photo- ing, pointed and out on the graphs the various mechanical devices Affirmed. engine operated. by which such an was All of testified that these witnesses Judge (dissent- CAMERON, Circuit engine engine forward rear ran into the ing). receiving signal with- without and cases rendered in The verdicts these warning out and at an excessive rate inordinately large, proba- but it is were speed, per hour. Plain- about ten miles I did I not file a dissent if blе that would neg- proved tiffs ligence that such an action was a vital mistake had not feel that proximate cause and was the sole ipsa applying the doctrine res made injuries. of their my opinion, salutary loquitur. this proved Buckles Plaintiffs further never intended to take sides rule was fireman, Stanley switchman and was swearing here match such we have engine, forward neither litigant prejudice so as to assist one any duty perform con- had them the other. coupling. attempted nection with the is, all, after a ‘rule of necessi “It that, re- Plaintiffs further showed as the ty only when neces to be invoked established, sult of the thus sary evidence absent and violently they from their were thrown ”1 readily available.’ injured. respective positions stated in words engine, rule is these The same ad- The crew of the rear while Negli- Jurisprudence, mitting impact 38 American the two that the between 303, p. gence, 999: unusual, Sec. rather testified that it anyone. injury “Limitations.'—The doctrine not sufficient to cause loquitur application has no cus- that it was This crew further stated engines couple tomary all the facts and circumstanc- where to- times to Nothing appear in gether es evidеnce. for convenient movement giving any then left to inference and neces- the for- notice the without sity engine. doctrine does not exist. the All of that them testified ward Being necessity, engine speed a rule of it must be at which the rear the only being operated where invoked is ab- four evidence was about miles an periods, setting yearly estimates, 1178; down notations 28 A.L.R. A.L.R. 77 reducing 1451; the and then present estimates to their A.L.R. 801. 154 value. The and arbitrariness artificiality ap- Cooley, (4 Ed.) 480, of such method is a so Sec. Torts parent require jury aj>ply quoted by that a it Mr. Justice Frankfurter would, think, absurdity.” States, we be an his dissent in Johnson v. United C.J.S., also, Damages, 185c, 1948, 46, 53, 391, 395, See § 333 U.S. 68 S.Ct. p. 885; Am.Jur., Damages, § An- 92 L.Ed. 468. lacking. words, the of railment? Direct evidence In other the crew hour. Any engine things, disputed as excessive facts and number of rear all of the charges by speed, spikes, rail, de- a a broken established loose of flange engine. Every spring, faulty on ma- a fective switch crew of the forward by might De- placed a the cause. wheel have been terial fact was before ordinary eyewitnesses was confront- railments do not occur and the determining things. operation very of duty which of course The with the of ed depends de- an absence of railroads set of it would believe. witnesses occur, is one does it railments. When pre- then, possible place, did a What highly make and it difficult to unusual is any description sumption have of law of negligence; doubly precise proof so majority controversy? in such a opinion The only for the where the witness giv- support cites no case to is killed. situation here has been The instruction, ing and none of such an from that one. other extreme Most cases in called our attention. give applied in- which the doctrine is сorrectly appraised and This Court has Sweeney Er- struction in the words ipsa loquitur applied res in a series 240, 1913, 233, ving, U.S. consistency and ob- decisions has been opinion, 418, 416, “In our 57 L.Ed. 815: present until the served go, case. Chica- loquitur the facts res means that McClanahan, 5 R. I. & P. R. Co. v. the inference warrant the occurrence negligence, Cir., 1949, 833, 837, 173 F.2d consid- we they compel such an point ered the doctrine from a historical they inference; circum- furnish of view and delineated and de- its nature negligence where di- evidence stantial fined the kinds of cases logically apply. where it * may lacking, evidence it rect opinion Both the key statement of that words The concurring opinion illumi- ‍‌‌​‌​​​‌​‌‌‌​​​‌​‌​​‌​​​​​‌‌​‌‌‌‌​​​‌​‌​​‌​‌​‌‌‌‍Court placed in us been those which have subject. quoted from mod- nate the We qua They sine non of furnish the italics. writing, and ancient and limited ern propriety-of the instruction. ac- doctrine to those situations where an happen have does if those who cident justifi- upon chiefly relied case care, management proper control use applying here the doctrine cation flour such as instances where barrels of Co., Maine R. v. Boston & Jesionowski uрper pots fallen from windows. 401, 404, 452, S.Ct. “ keep duty persons who ‘It is the replete with But case is L.Ed. acknowledgement in a warehouse to take care barrels they ap- doctrine ” ** *.’ do not roll out happenings”, plies to “unusual accidents”, and the decision “unusual amplified the discussion in Geo emphasized, quotes “ above the clause Corp. Cir., technical v. Pure Oil may evidence it direct ‘where 196 F.2d illustrated ” case, moreover, lacking.’ in- That applicability by giving sway as rule’s always derailment, has volved party litigation deny to one application field for the a favorite ing respect it with to another. car We ipsa. rationale of the rule development of ried the fur doctrine case. facts of that well illustrated along ther consistent lines in Whalen decedent claimed The Railroad Indemnity Co., Cir., v. Phoenix negligently lead while the threw switch rehearing Cir., denied 5 was straddle four-car movement of a car applied where we F.2d the doctrine so, alone his If the switch. rugs, typical case. Two in a linoleum produced his death. weighing twenty-six pounds, fell each plaintiff which on the while she was in were circumstances over there feut theоry.;. position. squatting Like the If decedent was barrels repudiated warehouse, properly negligent, stacked what did cause the de- the so normally rugs placed would not linoleum RAIL- CITY SOUTHERN KANSAS required the clerks fall over where COMPANY, Appellant, WAY extremely have been to work. It point plaintiff there to difficult for any JUSTIS, Appellee. negligence by any specific E. Carlton to act rugs causing particular person No. with- it store had fall. The owner Appeals United Court States complete power full and to make Fifth Circuit. subject. proper that proof It was April 6, 1956. ipsa loquitur himon shift thе burden res Rehearing May Denied proof. go with the forward necessary present it is not In the case rule, English between the to decide of sub- the doctrine as one

which treats recognized by law, rule or the stantive States, Supreme the United Court of only contemplates doc- which shifting to defend- used as trine be going evi- on with the ant burden loqui- theory res Under dence. easy place in this It is tur no case. had which with the effectiveness

to visualize could be used the instruction juror room. A favorable sort others with this confront the could argument: “Here we five credi- moving swearing that the witnеsses

ble speed engine proceeded miles of ten hour;

per five other credible witnesses speed four

testified that told But the Court has an hour. miles permitted infer we are us that negligent from the mere railroad happened.” that the accident

fact

By placing this inference in the scales plaintiffs, possible side with fideli- this conflict strict

to resolve giv- ty law as the facts and both to proper It was Court. ‍‌‌​‌​​​‌​‌‌‌​​​‌​‌​​‌​​​​​‌‌​‌‌‌‌​​​‌​‌​​‌​‌​‌‌‌‍en ipsa loquitur place the Court when all of the on one side

the scales fully developed. do was To so facts were appellant prejudicial under a to cast the the law does not sanction.

burden Brady Co., 1942, 222 N.C. Southern 367, 23 affirmed 320 U.S. S.E.2d 232, 88 L.Ed. 239. For the rea- judgments stated, I think should

sons cases remanded. and the reversed Rehearing CAMERON, denied: Cir- dissenting. Judge,

cuit

Case Details

Case Name: Texas and Pacific Railway Company v. Walter N. Buckles, Jr., and Silas R. Stanley

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 11, 1956

Citation: 232 F.2d 257

Docket Number: 15585

Court Abbreviation: 5th Cir.