The Boeing Company v. Daniel C. Shipman

Miss., in the work Jackson, received course his Goodman, Jr., for were W. F. Boeing’s plant. Alabama, Huntsville, at Lawyers Mississippi Assn. Defense alleged spray painter He and was BROWN, Chief Before JOHN failing negligent employer to his was GEWIN, RIVES*, WISDOM, Judge, and reasonably place him with safe furnish COLEMAN, THORNBERRY, BELL, properly venti- work was GOLDBERG, AINSWORTH, GOD fumes; also, paint lated to exhaust MOR BOLD, DYER, and SIMPSON mask to he furnished with a Judges, GAN, En Banc. prevent paint, prd- Circuit nor inhalation with * panel Judge legal questions Rives a member of mination of the raised opinion days in the initial deci author of the sion, Cir., the motion. Not later than 10 entry judgment, party after who competent may re sit in the therefore hearing has moved for a directed verdict Johnson, banc, judg- any en Allen to have verdict and move Cir., 1968, set ment entered thereon aside and 46(c); Fifth judgment Local F.R.A.P. § C.A. have entered accordance verdict; Circuit Rule with his motion for a directed if a or party, verdict was not returned such Civil Rules of Rule Federal days has within after the pertinent part: Procedure states discharged, may judg- move for “(a) for Directed Verdict: Motion for ment accordance with his motion party Made; A who Effect. When A motion a directed verdict. for a new verdict at moves for a directed may joined motion, trial by an evidence offered close prayed may or a new trial for in opponent may offer evidence the alternative. If a verdict was re- granted, event that the motion is not may judg- turned court allow the having so to without reserved reopen may judg- or ment to stand extent if the do motion had not been same ment and either order a trial or new made. A motion entry judgment direct the which is not for a directed verdict requested had been verdict directed. by jury granted is not a waiver of trial If no verdict was returned the court parties though all to the action even may entry judgment direct the as if A for directed verdicts. moved requested verdict had been directed shall motion a directed verdict state or a new order trial.” specific grounds therefor. denying propriety granting “The or granting a of the court motion order a motion for directed verdict is tested verdict effective without a directed appeal by both the trial court and on any jury. assent of the ” * ** the same rule. 2B Barron “(b) Judgment Motion for Notwith- Holtzoff, Pro- Practice and standing mo- the Verdict. Whenever 1075,p. (Wright 1961), § cedure ed. for a tion directed verdict made and cases cited therein. also of all denied close for evidence not Bagalay, Directed Verdicts and the any granted, the court reason Right by Jury to Trial in Federal action to have submitted the is deemed subject Courts, (1964). deter- to a later Tex.L.Rev. 1053 gloves handling erly tective of harm- denied motions for a directed chemicals, ful he was not judgment warned verdict and for notwithstand- dangers employment. of his He the verdict. poison- contended that he contracted lead willWe not restate in detail the criti- ing, ag- polyneuritis, dermatitis, Shipman cal issues of fact on which based gravation pre-existing bronchitis. case, adequately his since treat- Boeing denied misconduct which original herein, opinion except ed in the might Shipman’s injuries have caused say working Shipman had been pled contributory negligence and as- spray painter for three months as a sumption of risk and that the Alabama Boeing and testified that the room Compensation

Workmen’s Act barred working properly which he was was not damages. action for equipped system, with an exhaust prior opinion In the in this case the respirator he provided was not with a mask, Court said: paint particles that he inhaled thereof, a result and that also he incurred question Boeing’s alleged “On of injuries to his of hands because misconduct, weak, the evidence is es- gloves. failure furnish him with The pecially of the short view time that medical evidence conclusive, was not Shipman Boeing. evi- worked The relating Ship- the facts of cause dence as to causal connection between seriously disputed man’s ailments were Ship- the claimed unsafe conditions by Boeing. However; there suffi- place man’s and the ailments work provide cient evidence failure to a which he suffered can held suffi- reasonably place to safe a face jury’s work and cient sustain the verdict gloves require mask and submission application extremely of an lib- of the case to (389 under the 511.) stand- eral standard.” F.2d at promulgate opin- ard hereafter we in this Boeing’s motions a directed verdict ion. judgment during the trial and for not- withstanding the thereafter verdict were Judge, denied the District de- I. panel of a cision of this Court affirmed opin- the lower FEDERAL RATHER Court. We hold THAN STATE panel present ion a Court TEST IS APPLICABLE (389 507) F.2d contained errors It is well settled this Circuit law, Nevertheless, which we overrule. diversity ap that in cases federal courts affirm we because evidence suf- ply a federal than a rather state test questiоn ficient to create for the sufficiency established, evidence to under standard we have create therefore, Court, prop- and the jury question.2 District Reuter v. Air Eastern 1956, 922, Spruill Boyle- 2. The Circuits are divided on the 231 F.2d v. apply Midway, Incorporated, Cir., 1962, courts whether federal should 4 308 79, rather in de federal than state test F.2d with Woods v. National Life and termining Company, Cir., 1965, Accident 3 Insurance jury, 760, Reynolds v. Pegler, for submission to the Dick New 347 F.2d v. 2 Co., Cir., 1955, York Life Insurance 359 Pinehurst, U.S. 223 F.2d 444-445, Schlamowitz, Cir., 1965, 79 S.Ct. 3 L.Ed.2d Inc. v. 4 351 (1959), Moore, 5 935 Practice F.2d 509. 50.06, 1968); pp. (2d and, following representative ¶ ed. 2348-2349 cases are indeed, adopting some Circuits have decisions on decisions a state standard: Rowe this, question. Moore, Pennsylvania Greyhound Lines, Cir., both sides 5 2 (2d 50.06, p. 922; Federal Practice ¶ 2349 ed. F.2d 231 Gutierrez v. Public 1968). Compare, Rumsey g., Transp. Co., Cir., e. v. Great Service Interstate 2 Company, Inc., 678; Atlantic & Pacific Tea 168 F.2d McDermott v. John Cir., 1968, (reheard 3 Co., 408 F.2d 89 en banc Hancock Mutual Life Insurance 3 25, 1968) Cir., 562; and Rowe v. November 255 F.2d Moran v. Pitts Pennsylvania Greyhound Lines, Cir., burgh-Des Co., 2 Cir., Moines Steel 3

369 893, 901, 448; 2 Lines, Cir., Rev F.2d 226 5 (1958): Cir., Buchanan, L.Ed.2d 953 lon, Inc. v. 222; Planters A.L.R.2d F.2d gainsaid there is “It cannot Mut. Manufacturing Protection Co. v. strong against policy allow- federal 869; Cir., F.2d Ins. judge- disrupt state rules to Pruitt, Industries, Inc. Helene Curtis relationship Cir., F.2d 841.3 1967, 385 courts.” Judge Planters, supra, ex Tuttle Pac. Herron also v. Southern point haustively this issue discussed L.Ed. 857 (380 al 870-871) F.2d ed out Conner, (1931); Simler v. yet though had not (1963). 609, 9 L.Ed.2d of the fed in favor the question resolved Byrd test,4 said Federal courts must be able had eral that Court fact-finding Cooperative, processes Ridge Rural Electric control v. Blue 173; Stephan v. Southern Rail v. Marlin Fire F.2d Gilreath 265 F.2d Cir., 1965, way Company, Cir., Company, arms 819; Myers Liggett Insurance & New York Life Pritchard Trivette v. 441; Cir., 1960, Company, 1961, Company, Cir., F.2d 295 F.2d 6 283 Tobacco 3 Rogers Cartage Company, 292; 7 Firestone Tire and Rubber Wieloch v. Price v. 235; 725; Cir., 1961, 1963, Company, Cir., v. 290 Nattens 6 Lines, F.2d F.2d 321 Larimer, Cir., Society, Cir., 1952, 8 195 F.2d Air Inc. v. Grolier 449; Ozark Company, 9; 1965, v. Motor v. Hanson Ford 352 F.2d Ahmann Cir., 586; Lines, Inc., 1963, 1960, Cir., F.2d 8 F.2d 278 Continental Air 8 313 Horton, Cir., 1957, Arizona, Company (Missouri, 250 federal v. 8 tests Can 274 same); substantially F.2d 637. found to be large hand, Brazel, Cir., 1962, the other there are a v. 10 300 F. On Miller adopting number of cases a federal stand 2d 283. g., Reynolds Pegler, See, 2 ard. e. find the federal test v. The commentators 1955, 429; controlling. Holtzoff, Cir., Woods v. 223 F.2d 2B Barron and 1072, Life and Accident Insurance National Company, Federal Practice and Procedure § 760; 1961). Cir., 1965, p. (Wright 3 F.2d See 5 347 367 n. 5 ed. Schenley Inc., Industries, Cir., 50.06, p. Moore, Lind 1960, ¶ v. 3 Federal Practice 2350 79; Pinehurst, (2d 1968); Bagalay, F.2d v. 278 Inc. Directed Verdicts ed. Schlamowitz, Cir., 1965, 509; Right Jury 4 351 F.2d Trial and the Cir., Courts, Co., 1053, (1964); Burcham v. 1954, Stevens & 4 J. P. 42 Tex.L.Rev. 1058 35; Shirey Note, 209 F.2d v. Louisville & State Trial Procedure Cir., 1964, Company, Evidencе, Juries, Nashville Railroad 5 Federal Courts: 549; Kirby Corporation Lumber 327 F.2d Doc Directed Verdicts under Erie 566; White, Cir., 1961, trine, 1516, (1953). 288 F.2d v. 5 66 1525 Harv.L.Rev. Topps Records, ABC-Paramount Inc. v. also Ricketson v. Airline Seaboard Distributing Co., Cir., 1967, Record 5 Company, Cir., 1968, 403 F.2d Railroad 5 455; Industries, Inc. v. Gudgel 374 F.2d Fruit 836; R., Seaboard Brown v. Coastline 391; Petty, Cir., 1959, 5 268 F.2d 601; 1968, Cir., 405 F.2d Enter 5 Prassel Cir., 1967, Shippers, Inc., v. Southern 7 Co., Cir., 1968, prises v. Allstate Ins. 5 723; F.2d 387 Carriker, F. W. Woolworth Co. v. 616; Transport, 405 F.2d Cater Gordon v. 689; 1939, Cir., F.2d 107 8 Cir., 1968, 44; Keating Inc., 5 F.2d 390 v. Safeway Cir., Fannan, 1962, Stores v. 9 Development Missouri, Inc., Jones Cir., 1968, 5 94; Phipps v. Neder 308 F.2d N. V. 1011; River 398 F.2d North M., Cir., landsche Amerikaansche S. 9 Company Cir., Hubbard, Insurance v. 5 143; Christopherson v. 259 F.2d 863; Son, 391 Vandercook and F.2d Cir., 1966, 323; Humphrey, 10 366 F.2d Cir., 1968, Thorpe, Inc. v. 5 395 F.2d City Cir., Company, Basham v. 10 Bus Equitable Society Life Assurance 52 A.L.R.2d 582. Fry, Cir., 1967, United States v. instances, some federal courts Mintz, Cir., 1967, Marshall v. found the federal and state standards to F.2d 415. nearly identical, or at the same least particular obtain Dick v. New York Insurance result to under the facts Life way problem 437, 444-445, case, and in this 79 S.Ct. 359 U.S. choosing (1959); Theriot, federal Mercer between state and 3 L.Ed.2d 935 v. See, Metropolitan g., was avoided. e. 377 U.S. S.Ct. 12 L.Ed.2d tests Company Cir., 1959, (1964). Johnson, 1 Coal * * *” rights litigants (389 jury. are deter- which the F.2d at preserve 513.) Thus, present “the mined essential order case the judicial system. Judge obliged character” of District under course, do principle apply Of we not contend Planters the same control not affect sub- employed will state-created standard eases to the FELA rights alleged negligent stantive some Boeing cases. Ultimate- and the acts ly, however, integrity Shipman’s injuries our fact- extent and nature of finding processes outweigh determining must consid- of evi uniformity. jury. erations Herron questions dence to create Southern principle, Pac. 51 S.Ct. The Planters with which we Byrd (1931); disagree, Blue expressed “It follows: Ridge Cooperative, complete Rural Electric when there absence probative support L.Ed.2d facts conclusion (1958); Note, Trial judgment may State Procedure jury’s reached that the Evidence, and the ignored.” (380 874.) Federal Courts: Court F.2d at Juries, language and Directed Under Verdicts based this statement Doctrine, the Erie 66 Harv.L.Rev. decision in Laven Court’s (1953). agree Thus, we Kurn, der v. original opinion and case, in reaffirm our hold- (1946), 590 L.Ed. 916 an FELA ing, repeated, often stated, “Only that a federal rather when proper than a state is the complete test one. probative there is a absence support facts to conclusion reached ” * * * appear. does a error reversible II. (327 744.) U.S. at (FEDERAL FELA LI- EMPLOYERS’ however, cases, FELA are statu ACT) ABILITY FOR STANDARD tory negligеnce pro actions. The Act SUFFICIENCY IS OF EVIDENCE (45 51) employer vides that the U.S.C. § INAPPLICABLE “ * * * damages be shall liable original opinion resulting injury In the in case this such or death in part negligence the Court that or held the standard to whole in from the applied diversity any officers, agents, employees courts in the or ** cases, Supreme to determine the whether there suf- carrier. The is Rogers ficient case to Court held in submit the v. Missouri Pacific jury the on motions for ver- a directed Railroad 352 U.S. notwithstanding 443, 449, judgment (1957), dict and for 1 that L.Ed.2d in 493 “ * * * verdict, presented in is same that there FELA FELA cases (45 seq.) single negligence et question U.S.C. 51 Act Jones § whether (46 688) employer played any part, U.S.C. cases and that of the however § “question small, injury now this has been settled or death which is holding subject Circuit in Planters Manu- of the suit. The burden of facturing employee met, obligation Co. v. Protection Mut. Ins. and the *** employer pay damages arises, 5 Cir. 380 F.2d apply proof, though entirely that federal courts must the same when there is even employed circumstantial, may standards jury cases FELA which diversity determining cases in sufficien- with reason make that inference.” cy Rogers Supreme of evidence to raise a of fact Court also said opinion pointed pany Falgoust, Cir., 1967, 5. The further out that v. 5 F.2d 386 248; Equitable Society v. Planters Co. Protection Manufacturing Life Assurance Co., Cir., Fry, Cir., 1967, Ins. F.2d Mut. v. of United States Mintz, Cir., this in five F.2d had followed Circuit Marshall v. cases, namely; Remington recent Helene Curtis In 386 F.2d Arms Com Pruitt, Cir., pany Wilkins, Cir., 1967, dustries Inc. 841; Liberty Mutual Insurance Com 506-507, Atlantic & Steve FELA cases. Gulf (352 at 448- S.Ct. at U.S. Lines, dores, Inc. v. Ellerman 449): 780, 784, 7 L.Ed.2d proofs to de- appraisal of the “Judicial (1962). Douglas As Mr. Justice jury question is whether a termine concurring opinion in stated in his Wil narrowly limited to presented is McCarthy, 53, 68, 69 kerson whether, reason, single inquiry with (1949), L.Ed. 497 S.Ct. neg- that drawn the conclusion played ligence employer Liability Employers’ Act “The Federal injury or death. part at designed put in- on the railroad sights pri- Judges their to fix legs, dustry of the cost for some and, marily appraisal to make eyes, arms, it con- and lives which ** met, to find test is are bound * operations. sumed in its jury out whether is made a case friendly given purpose “That jury a allows the or not the evidence reception first In the courts. probabilities.” other choice place, great maze of restrictive in- 50(b): Judgment Note, Rule See also terpretations engrafted on were Verdict, Notwithstanding Colum. * * place, Act *. In the second (1958). L.Rev. 517 questions of fact were taken doubtful further said from the and resolved (352 Rogers at * * * emрloyer. in favor of the courts 448): portion goodly that a And so was test [FELA] “Under this statute Congress provided the relief which had simply whether of a employees was withheld from them. justify the conclu- proofs reason * * * 1943, however,] “[Since negligence played employer sion per- role of the The historic produc- slightest, any part, even * * * forming function [of injury dam- death passing questions disputed fact] (Emphasis sup- sought.” ages are being important restored plied.) class of cases.” necessary Slight negligence, Rogers v. Rail See also Missouri Pacific action, support is defined an FELA 508-509, Co., road 352 U.S. 77 S.Ct. great care,” and to exercise “a failure (1957). 449-450, 443, 493 1 L.Ed.2d obviously, is much proof, that burden Griffith, generally The Vindication See required to sustain than the burden less Policy of a National Public Under negligence ordinary recovery actions. Employers’ Liability Act, & 18 Law (3d Prosser, p. 186 Law of Torts § (1953). Contemp.Prob. Thus, as the 160 6 1964). (Emphasis supplied.) ed. Eighth stated, has Circuit Beyond fact that a statu Employers’ Lia- “Under the [Federal significant tory under FELA action Act, jury bility] negligence ly from common law differs pass upon of fault proof, the standard terms of action liberally causality must be most congressional intent is clear * * * jury’s power to viewed. jury enacting the was to secure FELA recog- engage be in inferences must larger proportion of in a determinations being significantly as nized broader ordinary true than would be cases negligence ac- than in common law words, other actions. In common law remedy” part of the tions.” is “trial Griffith, legislative general of a National The Vindication see 6. For a discussion Policy FELA, history Em illuminates Under which Public Contemp. Liability Act, ployers’ purpose congressional Law & 18 alter area, (1953). liability in Prob. law 160 common rules 372 50.02[1], p. (2d Chicago, 1968), Rock Island Pacific Rail 2324 ed. we ¶ Melcher, Cir., following pertinent commentary: F.2d find the Co. v. 8 333

road 996, 999-1000.7 generally “The federal com courts rejection mitted the so-called Though we heretofore rule,’ might ‘scintilla a court Manufacturing adopted in Planters Co. long not direct a verdict there is so Cir., 1967, Co., 5 Protection Mut. Ins. v. support proposi evidence in 869, the test of the suf 380 F.2d FELA party against tion tendered ficiency to create of evidence whom the motion An ar directed. question as a uniform federal standard gument might well made that such general fashioning application, a rule of fact, survives, name, a rule not in Planters reject principle now we in FELA and Jones Act cases.20 [20 peculiar the FELA test hold dissenting g., J., Harlan, e. See consequence that kind of as a Ferguson v. Moore-McCormack Lines accordingly the statute itself (1957) 521, 563-564, 352 U.S. 77 S.Ct. applicable in trials. non-FELA so, 1 L.Ed.2d If its 519.] application is limited to areas those corollary unique stat As beyond and cannot be extended those actions, ap utory it is context of FELA special domains.” parent general run cases cpur-t-s--h-av.ej_ej£-cted...the legend agree analy- We with Professor Moore’s axyJ.‘.scintillaIL-test. Gunning Cooley, v. and conclusion that the FELA test sis 74 L.Ed. 720 employed should not a vehicle (1930).8 Moore, Federal Practice 5 re-establish the “scintilla” rule which has New Haven & J., dissenting) Richfield 257 F.2d' Cir., 1955, F.2d pany See also 441 344 U.S. widened the Co., 88, N. H. & H. “ * * * 916 L.Ed. 497 McCarthy, M. R. 946, 91 L.Ed. 416 recognized the Federal needed Act, Stone New Coast Line Railroad But decisions make it clear [Citing, “I greater assume, arguendo, suffice in (1953).] (1946) ; 2 v. R„ New Zegan Ruddy Cir., Oil 505; jury’s power inter 224 F.2d 77 A.L.R.2d more recent 407, than in common-law And that the 329 U.S. 336 U.S. (1949); support R. : Corporation, permissible scope Employees’ Liability Jersey, 439, 224 F.2d York, Jesionowski v. Boston & and Cahill v. New v. New York Central R. alia, Hartford Co., Cir., 73 S.Ct. gee i£or(;e (1947); suit not Central 99 L.Ed. 740 Supreme 2 53, Lavender v. C. & St. L. R. Company, Smalls 452, the verdict would to draw inferences 3 that the inference 768; that, 69 S.Ct. Cir., 1959, 358, Railroad brought R. R. Wilkerson v. v. 67 S.Ct. 9 191 v. New Cir., under where we Court had Borgen actions.” 348 F.2d Atlantic (Frank, (1955) ; 413, Co., Kurn, York, under York, Com- U.S. Act. 401, Co., 266 86, 93 2 8. See Moore, Verdict, James, Sufficiency Jury-Control Verdict, Origin F.2d Company, 1966, ed. and the Courts, Eastern Air F.2d Cir., 1964, eral Motors Christopherson 1 ping Ohio, Cir., 1963, v. New York Life Ins. F.2d 239 Postom, inferences also Louisville & N. R. Co. v. Cir., Cir., 1967, Cir., 1968); Bagalay, F.2d (1943); Center, also, 239; Hawley 53; 366 Hubert v. 173 Federal Practice Right 47 Va.L.Rev. 218 48 42 F.2d M. C. 504; Hogan F.2d 9 e. Wells v. Warren Development Corp., Cir., 1954, Mich.L.Rev. Inc. v. Monarch Ins. 386 F.2d Cir., Tex.L.Rev. g., Baltimore & to Trial Devices Available Lines, 323. 164,166.” F.E.L.A. v. Carlisle May, Brady U.S.App.D.C. 207, 6 1956, of the Evidence and Humphrey, v. Alaska S.Ct Directed Verdicts 672; 7 v. United F.2d v. Southern generally Blume, Cir., 1955, ¶ 276; & of the Directed 555 Jury Cir., 1961, 236 F.2d litigation. (1961). 1053 Lovas v. 50.02 R.O. Co. Beaty Shop Company, 467; in Federal (1950); Cir., Steamship Reuter v. 212 F.2d 88 L.Ed. 10 Botts, ^[1] (1964); Before States, Co. White Cross, Co. v. Gen Cir., 292 (2d Ry. 5 8

373 in a non-FELA rejected question firmly the federal so an FELA as in case. the same case be judiciary.9 courts, tendency of some federal The not Supreme Although Court has language overly or to times, broad use law,10 no question Cir answered indiscriminately in non FELA cases cite States, other the United Court of cuit this does not obviate FELA situations Circuit, has held Fifth than the See, g., Continental Ore e. conclusion.12 sufficiency is of evidence FELA test Corp., & Carbon Co. v. Union Carbide The cases.11 applicаble non-FELA 690, 700-701, 82 S.Ct. rejected expressly First Circuit (1962); Harris v. 8 L.Ed.2d 777 Dehydrating Process FELA standard Co., Pennsylvania 361 Railroad Cir., 1961, Corp., 1 A. O. Smith Co. v. (1959) 1 4 L.Ed.2d stating such n. 656 F.2d 292 concurring); (Mr. Douglas, Justice own “on their to be considered had cases Lincoln-Mercury, Bruce Inc. Universal said, “We bottom,” further Court and the Corp., Cir., 1963, F.2d Credit 325 C.I.T. 3 this appear to have considered do ourselves, of other number question but a provided Supreme without ‍​​‌‌‌‌​‌‌‌​​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​​‌‌​​​‌​​​​​​‍The this result standard reached circuits alia, [Citing, cases inter Court in FELA and Circuit Courts discussion.” even sufficiency Metropolitan to create a Life Insurance evidence Rhodes v. jury question proper Co., de cert. is under the Federal 172 5 Cir. Liability Act, Employers’ nied, this and with Elgin, disagree. Joliet in non-FELA we do not But L.Ed. See Gibson 1738.] Cir., Company, Railway on stat- federal cases which are not based & Eastern ute, Re (On formulation of the test suffi- Petition 246 F.2d 834 York, ciency substantially hearing) ; New differ- is Cahill New evidence Cir., ent. Hartford R. Haven & (Frank J., dissent ing). III.

Finally, Amendment Seventh EVIDENCE OR THE SUBSTANTIAL pro Constitution MAN TEST of the United States REASONABLE require, by jury viding does trial proper determine what We now impliedly, determining expressly whether either should be in test sufficiency to create there sufficient evidence submit a evidence test of 10. 2B like v. Vulcan tice and v. 670,197 the evidence (Wright ed. We “A decision whether “It Jones clearly stating particular there Southern Coach ^[*] Ala. the Alabama rule note that Barron and have been scope So.2d 775 Act is a Procedure § extremely important Life the decisions ^[*] presented. 1961). statutory cases] of the scintilla & the test of FELA So.2d 861 Accident Holtzoff, handed (1967). & ^[*] FELA and Jones are confined Body Co., 280 Ala. 1075, pp. cases actions view it See, down [in Insurance (1968); Scott ^[*] provides that e. FELA and very in which takes g., * * to the Court, Prac know much Huff ^[*] Act *. 12. tion Against to Trial III of Holtzoff, Federal Practice and Procedure to non-FELA Tex.L.Rev. ments Parcq, Bagalay, Courts, eral § 1075 But see See cases and authorities decisions, to the lower federal courts.” Right (1957). Term, 44 Employers’ (Wright ed. Jury 42 State favor of Directed Verdicts Bagalay, would be of opinion, Jury Tex.L.Rev. For a Trial cases, see 2B Barron and Trial Invasions, Minn.L.Rev. applying (1964) ; Green, Protec in Federal Liability Act, 1961). Directed summary infra. But see Jury Diversity helpful 1053 the FELA rule and the and the Fed cited Verdicts and Tex.L.Rev. Courts, (1964). guidance (1960); Cases 1958- Right argu Part De- 374 case to the just connection with mo of the evidence —not that evidence supports tions verdict in a directed federal which the non-mover’s case— light court trial.13 The announce standard we and with all reasonable thorough study is the result of party inferences most favоrable to the prior numerous decisions of this Court opposed to the motion. If the facts and subject.14 which have dealt with point strongly inferences so and over- compounded by Our task is the fact that whelmingly in party favor of one that the legal many writers and commentators Court believes that reasonable men could pro used different formulations contrary granting not verdict, arrive pounding these standards and lan proper. the motions is On the other guage utilized them remains diverse hand, op- if there is evidence substantial occasionally and troublesome. See 5 posed is, motions, evidence of Moore, [1], p. Federal Practice 50.02 ¶ weight quality such reasonable (2d 1968); Note, 50(b): ed. 2330 Rule and fair-minded men in the exercise

Judgment Nowithstanding Verdict, impartial judgment might Blume, differ- 517, 45; 58 reach Colum.L.Rev. 522 n. Origin Development conclusions, ent Directed the motions should be de- Verdict, (1950).15 48 Mich.L.Rev. 555 nied, jury. submitted A mere insuffi- of evidence is scintilla On motions for ver directed present jury. cient to judgment notwithstanding dict and for The motions for directed verdict the verdict the Court should consider all 13. The directed verdict one 836; Keating Missouri, Warren goust, Cir., 1967, 239; table Life Cir., 1955, line Railroad 1011; Pruitt, States v. Justice 374 U.S. generally Moore, therein. 50.02 erty way see Procedure and the offend Verdict, 1458 Statement of Mr. Justice Origin (evidence S.Ct. See, See, Cir., 1944, Galloway side”) ; Galloway Mutual Insurance v. United ^[2] White v. e. Reuter v. Eastern Air (1943) e. (Mr. Helene Curtis Douglas Company, Cir., 1964, 48 Mich.L.Rev. 555 g., Gunning g., Cir., 1967, (2d 63 S.Ct. 5 Inc., must be Fry, 87 Assurance Seventh Amendment. Gallo Development 226 F.2d Justice Ricketson Co., Cir., 1968, v. United L.Ed. 1458 ed. 83 (“mere v. Jones New States, 5 on the Rules of Civil 1968) 5 Proposed Amendments, 74 L.Ed. 720 Cir., Cir., 1077, 1090, 386 F.2d “overwhelmingly 385 F.2d York Federal Practice ¶ Black, dissenting); Industries, Society v. United 319 U.S. speculation” practice Company v. Cooley, 43 States, Development and cases cited (1943) Blume, of the Directed Black Seaboard Air Life Ins. (1950). (1963). 248; Equi 841; 398 386 F.2d Wells v. 403 F.2d 87 L.Ed. Lines, ; does v. Fal Inc. v. States, (1930) F.2d Lib But Mr. 63 plaintiff’s proposition, yond be one necessary); Remington Arms “substantial, pion Warren 2d one 1964, 8 stantially dict” for Inc. v. surance 666 dith, Woods v. National 358 F.2d where 320 U.S. record”) ver B&B Standards stantial allowable) ; Brady 117 reasonable dence” conclusion”) (1965) (“no (1943) substantially Cir., 1959, 760 (there side) ; Home Builders U.S.App.D.C. 318, (“conflict reasonable man could reach” a 4 339 F.2d 348 dict) Electroplating Co., “there necessary way”) Hyman Wilkins, Cir., 1962, (evidence Company, (no ; Company, “would evidence” (directed must be “a rational basis all 794 Ford Motor F.2d 806 conclusion”); Crosby First, McCollum ; submission to 265 F.2d 729 non-moving party); can be 64 S.Ct. ; Magnat ; even Preferred Frеedoms: (“lack Muldrow the evidence” must be in substantial rationally support high probability 5 must 60 Nw.L.Rev. to direct a 5 Life and 3 ; required) verdict 300 chance v. Cir., 1967, (question Cir., (“evidence Cir., 1965, but one of substantial evi Southern Company or that Shumate, permit only F.2d v. 329 Corporation Smith, of its 1 88 (“all proper Accident Daly, Cir., 323 is whether Newhouse, reasonable L.Ed. F.2d 886 Company, evidence” 387 Wells there 328 verdict) ; must v. v. Ry. Co., truth”). or sub 347 Cham unless (“sub Zahn, Mere F.2d F.2d Cir., “one Cir., ver contrary Be 239 In on F. v. v.

375 However, jury question. decided to create a judgment not be n. o. v. should case, tradition- the better side has function facts, Court, granted when al finder and not the be nor should weigh conflicting probative infer- complete evidence and absence there is credibility enees, There support verdict. and determine the facts witnesses.16 substantial must a conflict be The Supreme Ed. 497 that all tended ed supports v. evidence„and Federal FELA cases are most tinguishing Carthy, sidered However, v. B&B v. were 358 455 886, 1964, facturing Co., The evidence light Blume, Origin F.2d entire record 323, Dehydrating 1061 Directed dicts U.S.App.D.C. road n. Seaboard Cir., 1963, 313 F.2d Pinkowski v. Sherman ence) ; Carbide Corp., See, (1950). (1962); Gunning v. (1930); The Court A. 1968). Humphrey, appellate motion. F.2d evidence should (“ 888; e. 165; 5 325 653, 1967, and the Company, 2 and with (1964). favorable to O. 117 ** in a motion to reach Rhodes g., O’Connor v. Cir., 1949, _thg_nnnjnave£s Courts, Practice Electroplating the evidence should & But see Alden v. Providence 794, Smith Cir., 1961, Air Line Railroad Verdict, (1949), 656 (by the Courts Continental Stief U.S.App.D.C. 371 U.S.App.D.C. 214, Muldrow v. Carbon See Wilkerson on Process Co. v. * should to determine whether review must 2 Right 1404, n. 797 inference). 10 42 Tex.L.Rev. v. 190, 192; F.2d Dehydrating the function all reasonable inferences questions.”) Cir., 1967, Corp., v. J. A. Sexauer just 6; Magnat ¶ sui 53, Bagalay, Metropolitan an FELA n.; Cir., 1962, Cir., 50.02[1], p. for a directed 48 Corp., 172 in Wilkerson 1409, Development consider generis.” 903, conclusion 292 F.2d Pennsylvania Cooley, Ore Co. v. Union Muldrow Co., Cir., considered in 1 party Trial Mich.L.Rev. considered, Daly, case. F.2d 1966, F.2d Hotel, Cir., 1961, 318, eviljacrwKicli Christopherson 904 8 L.Ed.2d 777 Appeals 380 F.2d Directed 1 ; A. examine the Company, 4 Process Co. ground Corporation 1053,1060- by Jury opposed all of 413, case, Carroll L.Ed. 720 183, (by 329 281 366 2329 O. Smith 5 Life Hospital, generally v. 7 be con verdict. v. Moore, Manu 93 Daly, infer court 1966, there Rail “dis F.2d 888; F.2d 185; F.2d Cir., Ver held 453, 690, Mc Ins. 292 555 (2d L. v. Tobacco 911, 2d 280, 281; evision Cir., F.2d Inc. 1963, Dorin v. Company, 1963, ety 358; pany, 50.02 National Ins. 1965, United Massey, Cir., Rock If one Trial Fenix and strongly Ozark 325-326. 111 F.2d Practice lay, Federal Practice 360 F.2d Humphrey, Smith, 2d line Railroad 75 contrary verdict, granting of the motions reasonable See, McCracken 720; pany, & See Company, ion L.Rev. O’Connor therein. (Wright Cir., 1963, Potomac R. proper. 484, 488; U.S.App.D.C. 334, 292, 295; of United v. Monarch generally party 914; e. McWilliams v. ^[1] Home Builders 839; 1965, 73, 77; Czap Marshall, Directed Verdicts and 315 F.2d by Jury Minton v. Southern Ahmann 6 315 F.2d Independent Air 2 352 F.2d 9 1053, g., Corporation States 8 facts Company, ¶ Cir., Cir., Equitable ed. Cir., (2 v. 5 Pritchard v. Lines, 260, 50.02 Herron v. 949, Minton v. Southern men 354 Scisson, 10 5 Pennsylvania 1066 Cir., 1965, overwhelmingly in ed. 313 F.2d Cir., 1966, 1961) ; Co., Cir., 1968, Co., Cir., Ricketson v. Seaboard Moore, 1966, in Federal 1962, 2B Richmond, v. States, 1964, and inferences 467, 469; Cir., 1966, 1967, Beaty Shopping Center, ^[1] 262; 953; Ins. F.2d the Court believes that 766, could Inc. v. 1968) and Procedure 9, Holland, 5 Barron and (1964). 3 Life Sch. 4 (2d v. 368 Inc., v. 308 Co. 339 378 11; Maryland Cir., Federal Practice 410, 414; 768; Breeding 5 Cir., 1957, 7 Christopherson 127 United States United Shumate, not arrive Liggett ed. and cases cited Larimer, Assurance Soci F.2d Moore, Air Cir., 1967, F.2d Courts, Dist. v. 347 F.2d F.2d 1963, F.2d 368 F.2d Richmond Shepard, 1942, Fredericksburg Railway 10 Railroad Com 366 1961, McCollum v. F.2d 9 1968); Baga Ohio, Lines, Cir., 1966, Cir., 719, 911, F.2d 171, 348, States, 324 & point Casualty Holtzoff, Right C favor of Railway 42 Federal 18, 19; 295 7 § 240 F. 4 Round 8 Myers hamp First 1940, Com 176; 720; F.2d 915; 1075 Cir., Cir., Cir., F.2d Tex. Inc., 349; Tel 357, Cir., 323, Air 382 F. so v. v. v. 4 ¶ 376 (1965) ; Bagalay, Rev. 1 Directed Ver Right by Jury dicts and the Trial generally Holtzoff, 2B and Barron See Courts, 1053, Federal 42 Tex.L.Rev. 1060 Procedure, and Practice 1075 § Federal (1964). 1961) ; Hyman (Wright and New- ed. A insuf- mere scintilla of house, for Preferred Free Standards present jury. ficient to Beyond First, : 60 doms Nw.L.Rev. 8, See cases and authorities in note cited (1965). 1, 15 supra. opposed there is If substantial evidence motions directed verdict motions, quality such judgment n.o.v. should not be decided weight reasonable fair-minded side has the better of the ease. judgment impartial men the exercise See, g., Capital e. v. Simmonds Transit might conclusions, reach different Co., 1945, U.S.App.D.C. 371, 79 F. 147 denied, motions should be and the case 570, 571; Crosby Meredith, Cir., 2d 1962, v. 4 jury. submitted 323, 325; 300 F.2d McCracken v. Richmond, Fredericksburg & Potomac See, g., Hospital, e. Alden v. Providence Cir., 1957, 484, 488; 4 240 F.2d 1967, 214, U.S.App.D.C. 127 382 F.2d Employers Casualty Mutual Mosqueda, Co. of Des 163, 165; Daly, 1964, v. Muldrow 117 Cir., 1963, v. Moines 5 317 U.S.App.D.C. 886, 318, 888; F.2d 329 609, 613; Hogan States, F.2d v. United Cross, Cir., M. C. Carlisle 1 & Co. v. Cir., 1963, 276, 277; Comp 5 325 F.2d 1967, 672, Magnat 674-675; F.2d 386 States, Cir., 1987, ton v. United 8 F. 377 Corporation Electroplating Co., v. B&B 408, 411-412; 2d Lines, Inc., Ahmann Air v. United Cir., 1966, 794, n.; 1 F.2d 358 797 Ju Cir., 1963, 274, 8 313 F.2d Studley, Corpora lien J. Inc. v. Gulf Oil 281; Holland, Cir., United States v. 9 tion, Cir., 1967, 161, 2 F.2d 386 162- 1940, 949, 953; 111 F.2d United States 163; Diapulse Corporation of America Hess, Cir., 1965, 444, v. n.; 10 341 F.2d 447 Corporation, Cir., 1966, v. Birtcher 2 Liggett 362 Baking Company Continental v. Myers 736; F.2d v. Pritchard & Company, Cir., 1965, Utah Pie 10 349 Company, Cir., 1981, Tobacco 3 295 F. 122, F.2d 292, 295; 2d Nuckoles v. F. Wool W. Company, Cir., 1967, worth 4 F.2d 372 judg- Motions directed verdict 286, 288; Casualty Company American granted n.o.v. ment should Cir., Reading, Gerald, 1966, Pa. v. 4 complete pro- when there is a absence of Lyle 833; 369 F.2d v. R. N. Ad support bative facts to verdict. Co., Cir., 1968, ams Construction 5 402 opinion, supra, See Part II of this 323; F.2d Ricketson v. Seaboard Airline cases cited therein. Co., Cir., 1968, 836; Railroad 839; 5 403 F.2d is the function of the as the tra- Company, Cir., Wells v. Warren 5 facts, ditional finder and not Hogan 668-669; F.2d 328 v. Court, weigh conflicting evidence and States, Cir., 1963, 5 inferences, credibility 325 F.2d determine 276, 277; Railway Minton v. Southern of witnesses. Company, Cir., 1966, 6 368 F.2d Rainey Gay’s Inc., Cir., Express, v. 1 Taylor 720; Cirino, Cir., 1963, v. 6 321 450, 451; 275 F.2d O’Connor v. 279, 281; Berry Refining F.2d Com Pennsylvania Company, Cir., Railroad 2 pany Salemi, Cir., 1965, v. 7 353 F.2d 915; 308 F.2d Woods v. Na 721, 722; Hotel, Pinkowski v. Sherman tional Life and Accident Insurance Com Cir., 1963, Comp 192; 7 313 F.2d pany, Cir., 1965, 760, 768; 3 347 F.2d States, Cir., 1967, v. 408, ton United 8 377 F. Export Lines, Inc., Boleski v. American Lindsay 411-412; 2d Schultz & Cir., 1967, 69, 74; 4 385 F.2d Wells v. Company Erickson, Construction v. 8 Company, Cir., 1964, Warren 5 328 F.2d Cir., 1965, 425; Wong 352 F.2d v. Chrysler 668-669; Necaise v. Cor Swier, Cir., 1959, 749, 752; 9 poration, Cir., 1964, 562, 567; 335 F.2d Company Clayton, Peter Kiewit Sons v. Petrofina, Cir., Isaacs American Cir., 551, 554; 366 F.2d Ad 193, 196; 368 F.2d Monroe Auto Powell, Cir., 1965,

ams 351 F.2d Equipment Mfg. Co. v. Heckethorn & 273, 274. Sup. Co., Cir., 1964, 332 F.2d generally Note, 50(h): Judg 412; Equitable Rule Dorin v. Life Assurance Notwithstanding Verdict, Society States, ment Cir., 1967, of United (1958) ; Moore, 73, 77; Colum.L.Rev. 517 Fed 382 F.2d Ahmann v. United Air (2d 1968) ; Lines, eral Inc., Cir., 1963, ¶ Practice 50.02 ed. 2B 313 F.2d Holtzoff, 281; Barron and Federal Practice Shafer v. Mountain States Tel. & (Wright 1961) ; Teleg. Co., and Procedure Wright, Cir., § 1075 ed. Hyman Baking Company Courts § Continental ‍​​‌‌‌‌​‌‌‌​​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​​‌‌​​​‌​​​​​​‍Newhouse, Company, Cir., 1965, Standards Preferred Utah Pie F. Beyond First, Freedoms: 60 Nw.L. 2d Judge sitting properly denied the District en banc Court Since judg- for prior deci- motions directed verdict and all matter, we overrule this notwithstanding con- ment the verdict and insofar Court sions this sending committed no error to special reference the case opinion, this flict with orig- jury, portions being to those made present Affirmed, in the opinion of the Court inal Manufacturing Co. in Planters case and Cir., RIVES, Judge Ins. (concurring Mut. v. Protection Circuit part not conform. dissenting which do part): PREFACE IV. appeal Decision turn on of this should MERITS THE OF

CONSIDERATION Amendment: “In Seventh Suits at law, common where the value in contro- holding that Despite our versy twenty dollars, shall exceed panel this case original opinion by jury preserved, of trial shall be law, principles of erroneous on is based jury, and no fact tried shall be oth- of rec the facts that concluded we have erwise reexamined in Court of the we sufficently the test meet ord States, according United than to the rules require affirmance to now formulated question the common law.” The ruling de which Court’s District require of the evidence to verdict directed motions nied the jury presents submission of a to notwithstanding the verdict judgment problem. Galloway a constitutional jury for case to and submitted States, 1943, fairly con jury could verdict. its S.Ct. L.Ed. 1458. though evidence, all of clude from negligent Ordinarily Boeing ways a court seeks was to disputed, that avoid deciding Shipman question. a rea failing provide with constitutional to When majority by application the en banc place with sonably to work and safe adequate promulgates the standard which it mask face reach- serviceable obliged Shipman original es the same result gloves. Also, panel was as the by application ex reached the booth the FELA work in area where to an standard, inadequate necessary it not seem or to off haust fan was either paint the area decide whether the FELA siphon fumes in standard dif- to off Though working. fers from the Seventh Amendment stand- in which he was and, hence, entirely inapplicable ard proof re expert to diver- medical is not sity However, determining cases. connec the causal liable necessary working panel original for the Shipman’s condi on hear- tion between (see ailments, of this case to decide tions and his uncontroverted 511) lay testimony Shipman and was material to decision showed (see Planters suffering polyneuritis 380 F.2d at 870 n. 1 and der from 4), Boeing. consequently proper working prior 873 n. matitis rehearing. Although be ruled on this en banc he had suffered bron Moreover, frequency because of the previously, could conclude chitis question arises, both from the the condition was majority proper aggravated Boeing’s pro advisable failure Court’s adequate decide in the this exercise ventila vide a face mask and supervisory control over the district tion. courts.1 Applying we have set the standards deference, considering With when the submit that opinion all forth in this diversity majority repudiates cases record, we hold that the evidence States, Buy L.Ed.2d Thomas v. United Leather v. Howes 1. La Cir., 1966, 941, 946, E.2d particularly event, importance FELA standard and of this en banc adopted Kurn, suggests formula in Lavender v. consideration a detailed state- it com ment of the facts. I therefore at- propor appendix mits an error of tach constitutional opinion to this plague full tions which will continue statement of the facts. Court district courts this Cir This is no occasion for an old common- grants cuit until cer lawyer indulge panegyric law in a 2 ease, future tiorari in this or some jury the trial; virtues how in our error. corrects the system justice fallible of human it “ ** * majority The does not re- the yet best instrument devised the state in detail the critical issues fact facts, determination how even its Shipman case, on based his since imperfections operate rough to rub the they adequately orig- are in treated the edges principles off of technical of law * * opinion inal herеin the While when unjust would result ver- original opinion is accurate its state- dicts, constantly it improving how complete facts, ment of the it is not be- progress with jurisprudence the of our parties cause refers to the it briefs the and with the advance of education and as follows: enlightenment, gives how the citizen proud rightful place in the admin- “There was mass of additional evi- justice, istration of safety place tends dence the the make utopian “government real our dream work, accurately of a which we to be find people, by of the people, the pages and for the summarized to 16 of the people.” many There appellant’s appellee who do not brief. The does agree my with almost appellant’s statement, reverential dispute atti- but tude trial, toward (appellee’s pp. but this is brief, no files a statement occasion subject, for a debate on ‘supplemental ap- 2-4) be- in nature since cause our pellant lengthy forefathers into our wrote set forth a rather has ” right by jury Constitution the of trial statement in its brief.’ both criminal and civil cases.3 More- Moreover, appel- over, as to civil eases with which we are lant is not with the statement of satisfied concerned, Supreme here Court has original opinion, in our facts length leading written at spends pages six of its on rehear- brief Galloway supra. States, v. United ing charg- criticizing that statement deference, placing that, pol- of the With “There is no evi- I that the submit overwhelming scholarly majority opinion dence in context ished has opposition by appellant, one evidence entered fundamental It down- weakness. grades appellee’s evi- which would rob Amendment. Toward Seventh any persuasiveness.” part opinion cap- dence of In the end of the appellee Ill, cer- not seek will of the Constitution and the Of course Art. § judgment case, In a tiorari Sixth and Seventh Amendments. may may personal or is affirmed. the Jones Act his favor suit under Supreme injuries, interest said: “The not be to the financial right appellant While it to seek certiorari. trial at com civil cases judgment, im- wins the mon a basic and fea loses the small law is fundamental hand, system jurispru portant opinion; other on the ture of federal of our approval protected by secure the Seventh it can dence which is certiorari Court, by opinion its A fundamental Amendment. so guar position strengthened citizen, in other cir- will and sacred whether provided Hopefully, motives or less selfish Constitution cuits. anteed jurisprudence jealously guarded looking settling statute, should be toward York, appellant’s counsel and New the courts.” Jacob v. actuate ' any event, appellant itself. presented frequently question 86 L.Ed. 1166. is one so petition in some for certiorari hardly be far case can distant. give way doctrine], over- must (FEDERAL EM- FÉLA “II. tioned riding ACT) consideration that STAND- LIABILITY PLOYERS’ Amend- court is bound the Seventh EVI- OF FOR ARD SUFFICIENCY of the United INAPPLICABLE,” ment to the Constitution it men- DENCE IS States.” “Finally, Amend- : Seventh tions States Constitution ment the United dichotomy as that ex is the same by jury not re- does providing for trial pressed by Supreme Court Sim expressly impliedly, that quire, or either Conner, ler v. sufficiency of evidence test of 609, 610, 9 L.Ed.2d 691: non-FELA in a create course, diversity eases, “In the sub- an FELA federal case be same dimension of the claim assert- stantive agree. My text is that do case.” * *, ed its source in state law finds upon the FELA standard is based of that state- but the characterization proposition is That vir- Constitution. legal equitable for claim as created my ignored majority. tually by the It is right jury purposes to a of whether single judge hope the that armed with a by re- indicated must be made trial is majority. persuade a can Constitution to federal course law.” try. Certainly compels to oath him his majority I in of the concur Part I remarks, pro- prefatory I With those opinion.5 ceed to of the in a discussion issues majority the en the same order as banc II. opinion. (FEDERAL FELA LIA- EMPLOYERS’ ACT) BILITY FOR STANDARD I. SUFFICIENCY IS OF EVIDENCE THAN “FEDERAL RATHER STATE APPLICABLE IS APPLICABLE” TEST Perhaps in no the field of the law majority The Part of its concludes cleavage proce- between substance opinion “Thus, we statement: sharply dure more drawn than in the original opinion agree with the difference substantive ele- between the holding, repeated, reaffirm our often of of ments a claim or cause action and than test a federal rather a state remedy by jury That is neces- trial. Wright proper one.” As in Para- said sarily rights true because the substantive Theatres, 5 Cir. mount-Richards contract, prescribed by and duties are 305: by law, by statute, common or while “ * * * right jury by preserved courts the federal trial principle just to Erie Seventh Amendment. The Amendment [the adverted recognized quence dichotomy situation, jury of that civil 4. The same Theatres, evaluating Wright Paramount-Richards cases courts decisions precedents supra, of Louisiana state courts as F.2d 306: right courts, separating to state have the difficult task of “In Louisiana guaranteed by by jury the Seventh of the decisions Louisiana courts on trial from their of the States Con- review of facts. Amendment law governing “The The Louisiana substantive law does exist. stitution provides clearly by has been case enunciated Practice Code of cases; jury but Louisiana in re trials in certain civil two duty right decisions; appellate cent v. Para have the Cassanova courts Inc., Theaters, mount-Richards La. both the law and facts to review Allen v. 16 So.2d Shreve cases. La. Constitution civil port Corp., Theatre La. Art. Sec. 10. by [24 courts are forbidden So.2d 607 A.L.R.2d “Federal 6371.” any re-examine Seventh Amendment subject opinion by otherwise than ac- The latest on this which fact tried law, my Denneny cording rules the common has come to attention Siegel, Cir., 20, 1969, can review state courts Feb. while Louisiana aAs conse- in all civil cases. the facts accomplishes simply by according separation to the substantive elements addressing separate example, itself to each fact— the claim. For rare it is “ ** * trespasser produce no tried fact can evidence * * * warranting irrespective applies ”—and of his submission case and, jury, extreme, of the at the other substantive nature of the claim. it is rare employee claim of either con- in an FELA action arise out fails variety produce tract or tort. The duties such evidence. The reason tort example, is almost without lies not difference limit. For stand- pre- trespasser only railroad owes to a ard duty willfully wantonly not to or serve the of trial inflict injury negligently injure vast not to him differences between substantive discovering peril; after his role the torts. its elements carrier, as a common the railroad owes strikingly very That is illustrated passenger highest degree to its (decided recent Ohio Decem- State care; employer FELA, as an under the Pennsylvania 24, 1968), ber N.Y. Mills v. employee the railroad is liable to its Transp. 97, 243 C. 16 Ohio St.2d any negligence, slight, however Syllabus prepared N.E.2d No. 1 injury. Rogers contributes cause the procedural the court law reads: “State v. Missouri Pacific Railroad govern federal substantive law brought disposition of actions state lading 2d 493. Under bills and under pursuant provisions courts contracts, various other of the extent Liability (Sec- Employers’ Federal Act variation in the railroad’s in- duties is 45, Code).” seq., tion 51 et Title U.S. duty finite for the measured railroad’s The Ohio summarized the fаcts particular Court the terms of the contract holdings of and of the United applicable public policy. several Breach Supreme interpret- cases duty any States Court capacities just of in one of the ing Liability Act, Employers’ Federal mentioned in a result “suit at com- against and then mon said: every law” the railroad. In one of these varied cases where the “These cases how demonstrate strict- controversy twenty value in exceeds dol- ly (that Rogers rule of case lars, plaintiff of either the or any employer negligence, however preserved defendant ato trial is slight, to cause the which contributes by the Seventh Amendment no fact injury applied actionable) is to be description of whatever can be re-exam- in all F.E.L.A. cases.1 ined except federal court accord- ing to the of rules the common law. “1. We have held that the use of cases, each and these varied when words, slightest degree,’ ‘in the remedy substantive claim phrase, any degree,’ ‘in connection with charge contributory negligence in a separately considered the same standard jury in an action under state substantive applicable to test the law reversible error. constitutes the evidence for submission the case Pittsburgh Co., Bahm v. & Lake Erie Rd. jury. to a 192, [217 N.E.2d 217]. Ohio St.2d goes saying without case, that the result plaintiff “In the al- instant application of the leges (and standard varies there is in the ree- Rogers Co., 1957, 294, v. Missouri Pacific R. 338 U.S. 94 L. 70 S.Ct. 100; U.S. 77 S.Ct. 1 L.Ed.2d Ed. McBride v. Toledo Terminal 493; Gallick Co., 1957, v. Baltimore & Ohio R. R. 77 SUt. Pennsylvania 1534; 372 U.S. 83 S.Ct. 1 L.Ed.2d Harris 2d Webb v. Co., 1959, Illinois Central R. 361 U.S. 80 S.Ct. L.Ed. 4 L.Ed.2d 1. Ry. Ala., 2d Brown v. Western majority opinion, 875. The en for railroad banc how- support) two bases ord to ever, no leaves me negligence: alternative. lighting inadequate “(1) was There opinion In his in Plant Court creating injury, place Judge ers, Tuttle did not so much as situation. hazardous McCarthy, 1949, mention Wilkerson v. de- other “(2) coal and There 93 L.Ed. 497. Only by vicin- lying implication immediate around can it as bris remote working. Judge ap ity plaintiff adopted serted that where Tuttle an parent holding of Wilkerson on mo light case, of the “This judgment tions directed verdict interpret- Supreme cases Court States notwithstanding verdict, the court Liability Employers’ ing should in consider the evidence and go to Act, allowed should have been support ferences which the non-mover’s accordingly reverse jury, we along case. Wilkerson was first cited Appeals. judgment of the Court line Helene Curtis Court reluсtantly, invite do this “We Industries, Pruitt, 1967, Inc. v. the United States participated. I a case in which applica- closely the strict consider how am convinced the Helene Cur Rogers ap- tion of the rule tis’ reference to Wilkerson was errone com- proaches of workman’s a scheme employs simply ous. That case the same substituting pensation, language Wilkerson, proper and when experts place allow- a board ly presently de understood, as will be open-end lieu of a award veloped, language not erroneous. statutory The amount amount. fixed my frankly But I must confess that damages by juries in F.E. awarded opinion original on the the Court appears exorbi- L.A. actions often hearing case, I made what instant slight compared to the de- tant when acknowledge to I now be an erroneous gree employer negligence con- rule contrast between the Alabama State employee’s in- to cause tributed considering rule and the federal jury.2 would be that it We believe following in isolation the sentence Wil discussed “2. The awards in the cases McCarthy, p. 57, 69 at kerson v. Rogers, $40,000; Gal as follows: were p. “It the established S.Ct. at 415: Webb, liok, $15,000; $625,000; Mc passing rule there whether in Bride, $51,000 Harris, $25.000. and an issue is sufficient evidence to submit appropriate for the United Su- States only to the to the we need look evi carefully preme review to its dence and reasonable inferences which light decisions, of the former fact litigant support tend to the case case, Rogers it as rule of the against peremptory instruction whom legal applied, imposes respon- has been given.” Boeing Company v. has been employers sibilities railroad Shipman, 5 Cir. Congress nev- the United States has The criticism which that sentence er intended.” arises, submit, provoked7 a mis from understanding apparent which becomes 243 N.E.2d 16 Ohio St.2d at totality in the when the sentence is read at it out of which the factual context gilding lily for me to add is like arose. Judge anything master- Chief Tuttle’s to simple. were The The Wilkerson facts analysis ful and decision in Planters wheel-pit railroad had constructed a Manufacturing v. Protection Mut. Co. changed wheels Ins. 871- which mechanics who Cir. (2d [1], Development pp. Blume, Origin ¶ tice 50.02 2329-2330 ed. 7. See 1968) ; Verdict, 2B Holtzoff § Barron & the Directed Mich.L.Rev. Moore, pp. (1950) ; Prac 399-404. 579-581 get Immediately following this train could cars. Over sentence under isolation, pit plank mistakenly quoted which a 20" which I was extended wide firmly “Viewing which Mr. Justice Black was not set attached and added: oily way permitted had to evidence here in it was suf- become * * following slippery. plank was used to At one time the ficient show the yard. Then, employees working at at all in the S.Ct. posts Subsequently, railroad erected after facts, elaborate examination obstructing ostensibly testimony by access based on both chains sides except controversy, employees plank those in the to he framed the all issue pit Wilker- in Wilkerson who itself. as follows: worked in son, had no duties who switchman to “Thus conflict as continued use area, taking wheel-pit a short the cut, walkway of the board as a after erec- one of the chains crossed over tion was chains whether the attempted plank. over He walk pit workers alone continued to it use injured. FELA fell his and was walkway evidence], as a carrier [the suit, injuries to the he attributed his employees generally or whether so failing negligence railroad in only very used it. left While place rail- The maintain a work. safe evidence, narrow conflict it admitting responded by road the exist- jury, court, not the greasy pit plank ence of the over resolve the conflict.” acknowledging had sus- that Wilkerson at U.S. at S.Ct. 416. Con injuries he described. tained the framing sideration issue, this comment carrier, argues nevertheless, an al- light of the actual im review passage to the other side ternate safe mediately testimony before ascribed' pit readily at a available sides, to witnesses for both makes very plank from short distance apparent that all of the evidence was negligent was the real that Wilkerson examined, though determination of the plank. party using the chained-off of Wilkerson’s question withstand the carrier’s motion not the The crucial issue was neces sitated a “look Rather, evidence and negligence. contributory sup reasonable inferences tend to dispute to wheth- there-arose a fáctual port against the case of [Wilkerson] across er the construction chains peremptory whom a instruction has been plank stopped unauthorized fact given.” Blume, supra Cf. note using plank persons there- 577-578, citing Ry. Southern Co. Wal liability. Wil- carrier of absolved the ters, 194, 52 that, testified kerson and another witness 58, Contrary my origi L.Ed. 239. to 76 anyone fact, stop did not the chains interpretation case, nal of the Wilkerson greasy crossing pit from thе the via viz., compelled it the trial court prac- plank it was a “common and that only evidence, to view the non-movant’s plank after erec- tice” the to cross even apply one of is but a line of cases all ing essentially 58-60 at tion of the chain. 336 U.S. the same test dictated the Amendment. 3, Seventh 4, 69 413. Witnesses notes contrary to the railroad testified that, the confessing my opin- While one error up, put chains were after the original ion for the Court on the hear- working persons pit on train area case, of this let me admit another. plank. at 59- 336 used the U.S. wheels stating I erred in that “The continued 60, validity holding8 subject 69 S.Ct. 413. of is to “ just quoted diversity East cases, therefore, from Reuter v. 8. I had ‘In even 443, 1955, Lines, Erie, F.2d Air Cir. 226 ern 5 since the scintilla evidence rule following holding: prevailing and in Alabama some oth-

383 firmly applied in called “scintilla” re- test has been if the standards doubt serious jected by Supreme applied in di- Court and other must also FELA cases including thorough re- federal courts in all versity cases After more cases.” rejection This firm the so- FELA cases.9 is search, no doubt I entertain fact, legally application without some terial no has er states it) ; to establish sufficient City Richardson v. cou rts.6 Boston, 1856, (60 U.S.) How. ‘6. 19 Pacific v. Southern Herron 639; 263, 268-269, 383, L.Ed. 91, 15 Co., 75 L. 51 S.Ct. 283 U.S. 857; whatever,’ “If there be ‘no evidence York Life New v. Ed. White prove 509; [citing 504, Cir., Parks] to averments Co., E.2d 5 145 Ins. declaration, duty ed., Practice, is 2d 5 Moore’s give peremptory court such instruc- 38.10; to Fed & Holtzoff 2 Barron Sec. p. 1075, But there be some evidence tion. cf. Sec. eral Practice support averment, tending Consulting Engineering its v. Co. Pierce City Cir., Burlington, value must be submitted to the 221 F.2d 2 proper with instructions 607, 610. court.” “ determining is there whether ‘In phrases “any The evidence” and “some case take the evidence to sufficient interchange- semantically evidence” were performs ju- judge jury, a federal generally able with what is referred to not mere auto- function and is dicial today as See IX the “scintilla” rule. Cooley, Gunning v. maton. Evidence, 2494, Wigmore § on 3rd ed. 231, 90, He 93, L.Ed. 720. 11 and qarly decisions. American in by party having duced the the burden Birth, See, e.g., v. Greenleaf proof, of unless the evidence of be such U.S.) 292, (34 L.Ed. Pet. a character it would that warrant the tending (“where to no evidence there is jury finding in a in favor of verdict particular fact, prove the courts a party.t that jury, re when to instruct the bound so Ryder Reports, Wombwell, v. Law “f 4 Ross, 1850, quested”) ; 11 How. v. Parks Privy Exchequer, 89; Reports, 2 Law 372-373, (52 U.S.) Appeals, 335. Council рur (peremptory same serve instructions Formerly it pose should was held that there to and demurrer evidence as jury standard; by is has was what called a scintilla evi- same be tested judge support any right ma- dence in a case the truth of the to assume no expression illustrated the authorities collected that is in used the Seventh majority opin- Amendment, in and that, early footnotes for it was settled phrase law,’ ion herein. “The ‘common in found this clause, is in used contradistinction to that the FELA standard for submit equity, admiralty and jur and maritime require isprudence.” Bedford, Parsons v. Breed- jury a con- submission of case is Pet.) Robeson, 1830, (3 love & stitutional be no standard. There can damages [433, (cid:127)doubt that action for under an 7 L.Ed. 732.10 445] That the FELA at common law” consistently “suit case has in followed jury, proposed by was to leave it to but congress; bound tbe of the constitution high authority peo- recent decisions of and which received an assent of the rule, ple, general, a more reasonable that established so to establish its every case, importance guaran- in before evidence is as a fundamental jury, preliminary rights left to the there is a tee and liberties judge, people. declares, not whether This amendment that literally evidence, no law, there ‘in of [sic] suits common where the jury any upon controversy twenty whether there is which a value in shall exceed proceed properly dollars, right by jury can to find a verdict of trial shall upon party producing it, preserved; fact, whom and no tried once proof imposed.]: jury, the onus shall be otherwise re-examinable Parr, States, Jewell v. 13 C.B. in [sic] court of “t the United Toomey Railway Co., L. according & B. 3 C. than to the rules of com- B., Hardisty, time, N.S. Wheelton v. mon law.’ At this no there were Blackburn, 266; Union, Ellis & Allens, Wallace, Schuchardt states jurisprudence the basis of whose essentially 642].” L.Ed. [17 was not that (81 U.S.) According law, 14 Wall. at 448. of the common mean- its widest Black, dissenting ing ; Mr. probably, Justice in Gallo no states were con- way States, 1943, templated, v. United in which it would not exist. phrase law,’ L.Ed. 1458: The clause, ‘common found in this go “The rule that a case must is used in contradistinction to jury equity, admiralty ju- was unless there ‘no evidence’ and maritime repudiated completely Improvement risprudence. The constitution had de- Munson, clared, article, ju- Co. 14 Wall. [20 in the third ‘that the (1871), upon power L.Ed. 867] dicial shall extend cases to all today part. equity arising Court relies There in law and under constitution, ‘some’ declared that evidence was the laws the United enough States, must evidence suf- and treaties made —-there or which ficiently persuasive judge that authority,’ so shall be made under their properly proceed.’ &c., admiralty he thinks ‘a can and to all cases of ugly given jurisdiction. known, The traditional rule was maritime It is well name, rule,’ equity ‘the scintilla to hasten its civil causes courts of juries demise.” admiralty, intervene, do not equity courts of only use the trial justifies importance extraordinary The of that cases, quotation more extensive Story’s opinion from Justice to inform the conscience the court. When, therefore, find, for the Court: we justly requires right “The trial dear to amendment always people. by jury preserved has [sic], American trial shall object deep law, been an solicitude, interest suits at common the natural con- every is, encroachment clusion this distinction was jealousy. great present it has been watched to the minds of the framers of right is, By law, they such a it is believed trial the amendment. common every incorporated into, and secured in meant what the constitution denomi- Union; ‘law;’ state constitution in the and it nated in the third article merely suits, is found in constitution of Louisiana. which the common law rec- objections original- strongest ognised among pro- One its old and settled ly against ceedings, legal rights taken the constitution of the but suits in which States, ex- determined, want of an were to be ascertained and press provision securing in contradistinction to those where by jury equitable rights in trial civil cases. soon recognized, As alone were right adopted, equitable the constitution was and remedies were adminis- ; where, was secured the seventh amendment admiralty, tered or as in the

385 to be made clear that the is decisions which have Seventh Amendment later applicable right not of trial under the ex States either that proprio vigore depend “part not does and Amendment because a Seventh claim, parcel remedy” of whether source of the under the FELA. Minneapolis or fed- common law or from state & St Louis R. R. from v. Bombolis, supra statute, solely majority on whether note 12. The but eral legal Supreme of of be Court bases reversal claim should characterized admiralty.11 judgments equitable directed or in verdict than State rather courts in FELA not eases on the Seventh Supreme held while Court has purpose to assure Amendment but apply doеs Amendment the Seventh of uniform enforcement the substantive brought in to a FELA action State provisions Act. in Dice of the As said court,12 apply it does to such action Akron, Co., 1952, v. C. & Y. R. 342 U.S. brought in a court.13 federal 359, 363, 312, 315, 72 398: S.Ct. 96 L.Ed. Douglas, concurring in Mr. Justice Co., supra Pennsylvania previously “We note held ‘The Harris v. R. by jury between the said: “The difference to trial is “a basic and 13 system majority minority of of the Court in fundamental feature of and our ’ jurisprudence” it treatment of FELA cases concerns and that is our vigilance ‘part degree parcel remedy should exer- we and afford- safeguarding Employ- ed trial— railroad cise workers under the Liability guaranteed Bailey ers’ Amendment Act.’ the Seventh v. Central remedy part parcel 350, and under Vermont R. 319 and 354 U.S. brought 1062, 1064, Act [63 this Federal when suit S.Ct. L.Ed. 1444]. 87 However, recognized courts.” view We also in state that case deprive majority of seems railroad workers public by jury;’ law, again, of mari- be a mixture the 13th section, provided, equity, often found it trial of time law supreme Probably, fact, court, there were issues in in the same in the suit. Union, law, against any, few, in the actions at citizens of states legal remedies, States, jury.” dif- some new shall which forms, Pet.) (3 [445, fering 274, common-law 28 old U.S. 275 which, however, use; 446]. not in were intervened, gen- by jury and the trial Co., 1913, 11. Slocum Life v. New York Ins. respects regulations in other were eral 364, 378, 523, 228 33 U.S. S.Ct. 57 L.Ed. according of the common course 879; States, 1913, Luria v. United 231 partition, Proceedings in cases law. 9, 28, 10, 101; 27, U.S. 34 S.Ct. L.Ed. 58 attachment, foreign and domestic Conner, 1963, 221, Simler v. 372 U.S. variously examples might be cited as 222, 609, 83 S.Ct. 9 L.Ed.2d 691. just sense, adopted modified. may well be con- amendment then Minneapolis & St. Louis R. R. v. suits, which are to embrace all strued Bombolis, 1916, 36 S.Ct. jurisdiction, admiralty equity L.Ed. 60 may peculiar be the form legal whatever City, 1942, Jacob v. New York settle assume 752, 753, congress U.S. rights. S.Ct. ‍​​‌‌‌‌​‌‌‌​​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​​‌‌​​​‌​​​​​​‍L.Ed. to have And seems 1166; Bailey, exposition, ,this Adm’x Vermont Central with reference to acted Ry ., judiciary ch. 20 in the act 1444; (which contemporaneous S.Ct. L.Ed. see also with the Akron, amendment) ; Dice proposal & Y. R. for in C. of this 359, 363, section, provided, U.S. 72 S.Ct. L.Ed. that ‘the 9th 398; Schulz, Pennsylvania Adm’x v. R. fact district of issues in trial Co., 1956, causes, except courts, civil causes U.S. in all Rogers jurisdiction, admiralty v. Missouri and maritime Co., 1957, 500, 508, by juryand Pacific R. 12th sec- U.S. n. shall provided, tion, ‘the trial of is- L.Ed.2d cf. shall, Pennsylvania Co., 1959, Harris courts circuit in fact sues equity, suits, except those L.Ed.2d in all jurisdiction, (Douglas, J., concurring). admiralty and maritime jury ings of a benefit trial where there is before Senate Committee on Inter state Commerce on H.R. 59th support negligence evidence to ‘is to Cong., 1st Sess. 68-69. inclusion The away goodly portion take provision, in the 1908 statute of another Congress relief which has afforded questions relating negli ‘All of fact right them.’ follows that gence jury determine,’ shall be for the proposed adopted. by jury part was trial too substantial but The is prevailed view plusage that this would be sur rights by of the accorded the Act to light of the Seventh Amend permit to be classified as a mere embodying ment the common-law tradi procedure’ ‘local rule of denial questions tion that fact were jury. Hearings the manner that has here used. Ohio before Senate Commit tee on Education and Labor on S. Brown Ala.], v. Western R. Co. [of 8-9, .Cong., 60th 45-46.” 1st Sess. U.S. S.Ct. 94 L.Ed. [70 clearly That footnote indicates that 100].” jury “part parcel trial which is Since, seen, Supreme as we have remedy” of the in FELA actions in fed- Court itself has settled that Seventh jury guar- eral courts same trial is the applies Amendment to a FELA action by the anteed Seventh Amendment. A brought court, ques- in a federal the next thought expressed similar in Mr. Jus- jury tion is whether a different kind Douglas’ concurring opinion tice in Har- by prescribed trial the FELA itself Pennsylvania Co., supra, quoted, ris V. R. expressly implicitly “part either p. 15, 361 U.S. S.Ct. Those cases remedy.” of the Nowhere statute Supreme do not stand alone. Other “jury” appear. does the word The rea- Court decisions have established that son in a that omission is stated jury guaranteed by is the trial the Sev- Rogers Missouri Pacific footnote in enth “part par- Amendment which is 508 n. U.S. remedy” cel actions in FELA 449, 1 L.Ed.2d which 77 S.Ct. Indeed, courts.15 it seems an can best understood in connection with suggest unwarranted affront text the sentence Supreme Court, by fiat, mere has in- appended: footnote is vented for jury FELA cases a kind of trial found neither in the Constitution Congress adopting the “The when nor the Act. particularly concerned that law employer there issues whether Moreover, I submit that neither played whether fault fault and Congress Supreme nor the Court con- can injury part or death stitutionally give a broader role to the employee should be decided jury guaranteed in FELA cases than that men could whenever fair-minded by the Seventh Amendment. That on the reach these conclusions evid true principle because of the announced ence.18 a different con- text in Herron v. Southern Pacific primary “18. reason was a While 91, 95, 51 S.Ct. against protest trial undue comment facts, original judges L.Ed. 857: as to the questions negli provided; ‘All Act by jury “In a court, trial in a federal contributory negligence gence shall judge moderator, not a mere jury.’ Hear be for the Stat. history legislative York, 1942, referred to in 15. See 14. Jacob v. New 315 U.S. just quoted, Rogers, makes footnote 18 S.Ct. 86 L.Ed. Bai ley, Ry., trial intend- it clear the kind Adm’x v. Central Vermont remedy” “part 350, 354, the FELA as 319 U.S. ed L. 1444; Schulz, Pennsylva other Amend- Ed. is none than Seventh Adm’x v. Co., 1956, 523, 524, trial. Because of its nia R. ment comparative importance, inaccessibil- see also At history legislative ity, is attached lantic & Gulf Stevedores v. Ellerman opinion. Lines, 1962, Appendix B to this 780, 7 L.Ed.2d 798. particularly to retain governor the common-law the trial the of is the but assuring province proper con- distinction the the its between of purpose of jury, whereby, determining questions the of court and that of duct and of implied express discharge judicial the of of the absence con- This law. contrary, of essen- sent to the issues common law is an law are function as at by process the to the court and for which be resolved issues in the factor tial by provides.” of fact are to be determined the Federal Constitution jury appropriate by under instructions through Again, speaking Mr. Justice the court.4 in Baltimore & C. Line v. Devanter Van 654, 657, Redman, U.S. “4- & Walker v. New Mexico So. Co., 890, 891, the Court said: L.Ed. [17 Pac. R. 165 U.S. S.Ct. 837]; 421, 41 L.Ed. Gasoline Products by jury pre- right of trial thus “The Champlin Refining Co., 283 Co. v. U.S. right un- which existed served is [51 75 L.Ed. 497-499 S.Ct. English ; Schiedt, common law when der the 1188] 476, Dimick v. U.S. L.Ed. [55 485-486 S.Ct. adopted. The Amend- Amendment was 603.]” right only preserves that ment not clearly principle and has been most protect purpose to discloses a studied succinctly Judge expressed Phillips by through impairment from indirect it speaking for the Tenth Diede Circuit enlargements possible power of of Co., 1942, rich American News existing under the com- reexamination 146: law, to mon and that end declares power judge pass of “The to jury fact tried a other- ‘no shall be just upon questions of as law is much of the wise re-examined court part process of according of trial to the essential than States by jury guaranteed by at common common law.’ law rules of the Amendment, the Seventh as is the Amendment, “The of as aim power jury pass upon ques- to held, preserve the sub- Court has to of tions fact.” trial stance of the common-law of opinions indicating quoted by jury, distinguished Other so from mere as margin.16 procedure, in the matters of form or and “ * ** determining questions fact of Even where issues of law. Herron courts, by juries in the Federal Pacific Southern are tried super charg- In 857]. under constant S.Ct. 75 L.Ed. [51 such trials are judge. ing jury, judge the trial is not lim- In a trial intendence by trial jury judge of to instructions an abstract sort. in a Federal court ited gov province, within his but ‘is the whenever he ‘not mere moderator’ necessary, purpose as to assist trial’ for the thinks ernor just arriving explain- suring proper well at a conclusion its conduct commenting ing upon evidence, determining questions of law. Herron by drawing parts 91, 95 their U.S. attention to Southern Pacific important, of it may he thinks 857]. L.Ed. In the which and he [51 S.Ct. express opinion by jury upon facts, courts, ‘is trial his trial Federal by men, presence provided he makes clear twelve superintendence judge matters fact are submitted to and under the * * * empowered law their determination. them on Sir Mat- to instruct (ex facts, thew Hale thus described the them on function and to advise charge) judge cept acquittal the trial common law: ‘Here- a criminal opin able, emerging in ho is in matters of law his set their verdict aside evidence, them; against the evidence.’ direct ion it law or also, give Capital Hof, matters fact them a Co. v. Traction great light weigh- 13,14 580, 5S5, 873].” his assistance [19 S.Ct. ing them, Benson, 1932, before the evidence and observ- Crowell v. where the and knot of the L.Ed. lies, showing business them his opinion fact; even matters of great advantage lay- light is a History Hale, men.’ the Common to-day, my judgment, passed in 1906 con exists FELA and if it The first change attempt questions provision did that all the law it would tained negligence contributory clearly negligence unconstitutional. other jury. Ap protects words, seventh amendment shall be submitted holding any exception B, 387, whatever, pendix p. that without infra. unconstitutional, trials at common some inconclusive law under Act Federal jurisdiction, England upon provision as established in were made comments country opinion for at the date of both in Mr. Justice White’s the Moody’s adoption Court,17 Justice of amendment. the and Mr. Profiting dissenting opinion.18 from prerogative “It of the court was Congress expressions, in con those adoption at the date of the of that sidering the second or 1908 FELA struck jury charge the amendment following argu provision similar a considering questions of law after argument Rayner. ment of His Senator bearing questions. facts those It 403-404, appears Appendix pp. B at province of the court to deter- cogent infra, is so I clear mine with- whether case should be quote from it. jury by drawn from the reason of the plaintiff fact that not in had his “As to the clause: other brought evidence himsеlf within the “ relating questions ‘All of fact province terms of the law. It negligence be shall court, of the and it must be to- determine.’ day, to set aside a verdict want of Any perfectly of sufficient one those “I desire to frank. prerogatives ought go Why? or others that could think it out. Be- change provision mentioned which of cause law as it does bility (Tennant Law, 291, Act the Federal Con- v. Peoria & P.U.R. 292. Under Co., prerogatives 409, 321 29 [64 essential U.S. S.Ct. 88 L.Ed. stitution the 520]; they judge Co., Ellis v. Union Pacific R. were secured 329 trial [67 653 maintained U.S. S.Ct. 91 rules the common are L.Ed. law 572]; Akron, [Emphasis Co., Dice v. add- C. & Y. R. in the courts.” federal States, 1933, 342 [72 289 U.S. 359 Quercia v. United S.Ct. 96 L.Ed. ed.] 398]; Rogers 698, 699, Co., L. v. Missouri 77 Pacific R. 53 S.Ct. U.S. 352 [77 U.S. 500 1 S.Ct. L.Ed.2d Ed. 1321. system independent 493]), part remedy. trial of the “The federal is an justice provisions system administering Thus to liti- the Seventh jurisdic- Amendment, above, brought gants properly noted invoke its who play. Pennsylvania of that into Co., supra, Schulz v. R. An essential characteristic tion. system which, [350 U.S.] [76 in civil at 524 is the manner S.Ct. recently actions, 609]. trial at As we it distributes stated in an common-law and, diversity judge case, other is the between Seventh functions Amendment the influence —if not the command fashions ‘the federal under policy assigns favoring jury Amendment, disputed decisions of —of the Seventh disputed questions questions.’ Byrd Ridge fact fact decisions of v. Blue jury. York, Cooperative, 525, 538, [Elec.] Jacob v. New 356 U.S. 893, 901, 953], 1166].” L.Ed. [62 [78 S.Ct. S.Ct. U.S. L.Ed.2d (Footnotes omitted.) Byrd Ridge And v. Blue see Herron v. Southern Pac. Inc., 1958, Cooperative, 283 U.S. [51 Rural Electric 94-95 S.Ct. 525, 537, 893, 901, 2 857].” L.Ed. L.Ed. U.S. Atlantic & Gulf Steve Lines, 1962, 953. dores v. Ellerman 2d being “This in the federal courts suit S.Ct. L.Ed.2d diversity citizenship car- reason of 798. it, course, to trial ried with jury. Employers’ Liability Cases, 1908, As in cases under the Jones Pennsylvania (Schulz 463, 503, 504, Act 668]; U.S. 523 L.Ed. [76 S.Ct. Dredging Corp., Senko v. LaCrosse 404]) Id., 1 L.Ed.2d [77 U.S. 370 at 28 S.Ct. at 162. Employers’ Lia- and under the Federal spec- saved from the mischance attempted to take Congress statute legally unfounded ulation over judge of a presiding from claims.’ would trying law common court amend- seventh violation be in although time, have Since has not amendment seventh ment. The formulations, many different used preroga- or taken added to reasonably courts court judge presiding over of a tives application consistent single power that existed law rule, Brady may properly that a verdict simply adoption. its the date when, weighing be directed without quo then as it preserved the status credibility witnesses, there existed, on that are the authorities one can reasonable be but conclusion perfectly clear.” the verdict.17 But thére where for- the furnished has An FELA case “17. supporting this The сases conclusion are general use in most mula in number. infinite The cita- almost types for determin- of cases in all courts follow are extensive but tions issue controverted of a the absence They provide sampling exhaustive. Moore, in 5 As said of circuits varieties factual of fact. omitted.] situations. [Citations [1], pp. 2320-2322: 50.02 Practice § evidence, conflicting is there in- Brady Railroad14 v. Southern “Until only sufficient evidence to a ‘one- make 232, 476, (1943) “14. 64 S.Ct. 320 U.S. possible, way’ verdict a directed verdict 239. L.Ed. 88 improper.18 Supreme Court the decided clearly 1943, had courts the federal “18. These cases should be read in connection per- preceding footnote, opted the standard between in the with those represent other since the side on verdict court to direct mitted a Again, attempt no of the same coin. strong preponderance of a the basis the author has been made exhaust ‘reasonable the evidence15 the merely repre Instead, the ities. cases sampling of au an abundant sent Pennsylvania See, g., “15. RR. v. Cham e. among different circuits thorities 333, (1933) S.Ct. 53 288 U.S. berlain l bases. [Citations with different factual McBaine, 819; 391, Tria L.Ed. 77 ” omitted.] Verdicts; Federal Directed Practice: 454, (1943) Calif.L.Rev. 31 Rule In Ore Co. v. Union Continental Car above. indicated type of standard man’ Corp., 1962, 690, & Carbon 370 U.S. bide ease, Brady announced the Court In the 1404, 696 n. 82 8 L.Ed.2d S.Ct. following terms:16 the standard case, 777, Supreme private antitrust case, an FELA Tennant Court cited 234- “16. at [64 S.Ct. at 479-480 320 U.S. 29, Co., 64 Peoria & P. U. R. 321 U.S. S. 235]. 409, 520, is such Ct. 88 L.Ed. at two different the evidence “‘When credibility weighing indicating of places opinion, in its without sufficiency one be but there can rule on of the evidence for a the witnesses go jury. the ver- toas case to to the conclusion reasonable dict, determine should the court diversity In three at least cases from non-suit, ver- directed proceeding Circuit, Supreme Court has in accordance or otherwise dict per curiam entered reversals when this practice sub- without applicable Court has its substituted views by judgment jury, or mission By of the evidence for those of notwithstanding the verdict. jury.19 result trial the such direction Co., reversing Cir., Ins. 5 220 F.2d Life Gib v. Carolina Williams Phillips Co., 1956, L.Ed. son v. Petroleum 99 352 Cir., reversing 1 U.S. 77 L.Ed.2d re versing Cir., Line 13. This Coast v. Atlantic Swafford 1955, Green, Jury L.Ed. discussed Protection of juries apprehended that “48. not be McLanahan v. It need Universal Ins. (26 U.S.) Pet. [7 L.Ed. 98] proper get influence or from under will (1828) ; Tracy Swartwout, 10 Pet. judges the FELA when control of trial (35 U.S.) [80, (1836) ; 9 L.Ed. 354] diversity applied in cases. standard Dunn, (39 U.S.) Games v. Pеt. First, That is true for several reasons. (1840) ; L.Ed. [10 476] Starr v. United States, U.S. S.Ct. 919 [38 extreme argued, results as has been (1894) ; 841] Quercia L.Ed. v. United in FELA cases come about because States, [698, 53 S.Ct. 689 U.S. elements of the tort rather substantive (1933) ; States 1321] application than from Murdock, 54 S.Ct. 223 (1933).” Second, jurors listen to trial 381] standard. [78L.Ed. judges, judge's district and the federal supra, Blume, Third, note power to advise them original as has been discussed in our facts. opinion case, in this 389 F.2d at many 514,20 extremely “In cases the district courts retain recognized grant has United States broad discretion to new trials. power judge early days law, of the trial to advise the the common facts, has, remedy jury finding contrary on the at the same for a time, required separation grant a clear evidence was to a new trial.21 fact, remedy, law from and has insisted that the That continues be the safest judge jurors they subject reversal, encroaching tell the were not less by judge’s opinion fact-finding bound least on the constitutional province jury.22 Moreover,

facts.48 it Diversity Against directing entering judg Trial Cases State of a verdict or Invasions, 1957, 768, n.o.v., simply 35 Tex.L.Rev. with ment order a new trial. following Virginia Pulp Paper Co., conclusion: Cone West & “Thus, supreme 1947, 212, 215, 216, under the court deci 330 U.S. 67 S.Ct. sion, ; Moore, 752, would seem that when the 6A 91 L.Ed. 849 [5], pp. 3815, of trial in the federal courts col Practice 2nd ed. 59.08 ¶ Thompldns [Tomp lides with Brie v. 3816 nn. 5-8. Different considerations kins], Supreme probably Court as in the of would dictate the use direct judgment U.S; ed verdict or n.o.v. when the “6. 817, [58 S.Ct. L. strictly motion is based on an error of (1938). Ed. 1188] law. FELA cases stick will trial practices and not allow local of Blume, supra 7, 568, 569, note at cit 21. type designed deprive litigant (King’s of Macbeath v. Haldimand right.7 his constitutional Bench, 1786), 172, Eng.Rep. 1 T.R. 1036, Going back, 1040. still further “7 Akron, R., Dice v. C. & Y. R. Scott, writing Mr. Austin Wakeman 312, [72 398] U.S. S.Ct. L.Ed. 31 Harvard Law Review 681 on (1952) ; Ry., Brown v. Western by Jury Trial the Reform Civil 294 [70 100] Procedure, said: “In 1665 the first re (1949) ; Jury Green, Trial Mr. ported holding decision was rendered Black, Justice 65 Yale L.J. might the court order a new trial (1956).” ground against the verdict per opinion The same curiam which re evidence,” citing Gunston, Style Wood v. versed Atlantic Line R. Co. v. Coast 466. Professor Blume also discusses ful ly also an FELA Swafford reversed interestingly the “dodo” or no Circuit, from this Atlantic Line R. Coast remedy longer used of a demurrer Anderson, 1955, 221 F.2d Co. v. 5 Cir. supra Blume, evidence. note 548. 562. part It should be noted that opinion Black, J., dissenting Galloway the pare Taylor Washington has not been attacked. Com- States, 1943, Terminal v. United 319 U.S. D.C.Cir., Peb. 63 S.Ct. L.Ed. 1458. legally Planters, insuf- Even the evidence is should be su- when noted also that pra, fоr directed ficient and hence a motion no error was found in the district judgment may properly grant verdict or n.o.v. court’s alternative of the defend- court, granted, (380 in the exer- ant’s motion for new trial F.2d at trial discretion, may, 881). in lieu of a sound cise though may- belongs, in the courts even those facts decision keeps the where erroneously appraised.” judge has seen have been who of the district hands testify the witnesses heard Schulz, Pennsylvania See also Adm’x v. A stand. their demeanor on observed 523, 527, 350 U.S. 76 S.Ct. instead general of new trial use more 608, 100 L.Ed. 668. appellate save the would directed verdict noted, supra note three hours many precious judicial man judges diversity Supreme cases which the days exploding dockets.23 in these per this curiam Court reversed Circuit however, say, hear Strange do not we sought when to substitute our we views appellate court mentioned factor jury. However, those of the most reaching they out for judges are when such never reach the cases for those power their views to substitute Court. As said Mr. Justice Black jury.24 States, dissenting Galloway v. United controlling jury verdicts burden of 372, 407, and, judges primarily on the district rests L.Ed. 1458: “So few of these except views their when substitute that, cases come to as a matter jury, those of a interference fact, judges the District Courts extremely Appeals should be Courts Appeal and the Circuit Courts the Su- Even less often should rare. primary custodians of the Amendment.” preme to review Court be called on page On the same Mr. Justice Black If exercised evidence. wisely that, pre duty observed “Our impossible many cases it becomes an Rights serve this one the Bill of noted That has burden. often been peculiarly difficult, our here it is dissenting justices cases. in FELA power own which we must restrain.” On McCarthy, example, For Wilkerson v. preceding page that, he had remarked L. language “The of the Seventh Amend Ed. Mr. Justice Frankfurter said: easily improved ment by cannot for “Considering and com- volume the mulas.” 319 U.S. at at obviously plexity of the cases hand, which 1095.25 Judges On the other both Court, by for decision and con- appellate call this trial and in conscientious sidering thought performance the the time and the duties, of their and proper disposition cases de- of such will pre follow formula or standard mands, higher I take do think we should scribed authority when it is already merely cases to review facts clear and certain. Such formulas have by two and three canvassed sometimes in evolved the FELA cases Cir., e.g.: Choate, great Jackson variety sale for of situations Groendyke 1; respect n. in to which the arise Cir., 1969, Transport, Davis, Inc. v. greatly s.31 Nor is the matter aided Murphy F.2d at n. “31. Wigmore, Cf. Evidence Service, v. Houma Well Cir. (1940) 296-299. 804 n. 5. F.2d by substituting general one formula hardly help another. subject affords ably to in- in That discussed sist ‘substantial Wright, evidence’ rather The of Doubtful Omniscience ‘any evidence,’ than ‘some evidence’ Courts, Appellate 41 Minn.L.Kev. or vice Green, Jury versa. The matter is essen- Trial Mr. Jus tially particular one to be Black, worked out in tice 65 Yale L.J. 482. particular types situations and for Butledge, writing for 25. Mr. Justice general cases. Whatever be the expressed thought majority, formulation, same requirement the essential elaborately: speculation more that mere be not allowed objection “Finally, appears duty probative to facts, to do after generally making standards at be directed due allowance for all reasona- proof judges required bly possible for sub- favoring par- inferences jury. ty But of evidence to the mission whose case is attacked.” objection’s standards, contrary Wigmore [The text is instructive.] most assumption, whole- be framed cannot 319 U.S. at 63 S.Ct. at 1089. Kurn, supra,, cases; (7) judges especially other kinds in Lavender v. trial adequate aid to retain of inestimable influence formulas which are over and con- juries through judges judges of the trol of the district their admitted powers primary grant to Appeals cus advise “the on facts Courts trials; (8) the new of the Amendment.” 319 U.S. at formulas todians evolved in grievously especially err the FELA cases and S.Ct. at We Laven- Kurn, supra, operate der v. in diver to restore the when discard formulas we those jury sity historic function common-law cases. passing disputed questions of fact. recapitulate, To submit I sufficiency evi- same standard of of the III. require dence of a case submission diversity jury applies cases “THE SUBSTANTIAL EVIDENCE OR cases, following reasons: FELA REASONABLE MAN TEST” (1) The extreme results reached Sitting banc, majority en of the FELA cases is because substantive “promulgate[s]” what it considers tort, and not elements any because added) (emphasis “the standard” of suf- difference in the standard sufficiency determining evi- ficiency preserve necessary require dence submission of right (2) by jury; of trial an action jury. reasons, For three a case to disagree under the FELA a “suit at common promulgated newly with this expression law” as that used formula. Amendment, Seventh and carries the majority expressly First, the overrules right jury trial under that Amend- Supreme Court’s test own ment; (3) jury the kind of trial in- Kurn, supra, out in set Lavender v. “part parcel tended FELA as a rejects remedy” is none other than Mfg. Planters v. Protection Co. Mut. Ins. trial; Seventh Amendment 5 Cir. (4) Supreme we cannot assume that the adopted the Lavender standard.26 Court, fiat, mere has invented for majority, doing, in so commits constitu- FELA cases a kind of trial found repre- error, tional for the Lavender test neither the Act nor in the Constitu- sents but one articulation of con- several tion; (5) Congress neither the nor the Supreme stitutional used formulas give constitutionally Court can Court. a broader role to the in FELA cases guaranteed Second, by than majority that simply the the has no Seventh Amendment; (6) authority Supreme “promulgate” any the to one Court stand- and other applied Supreme federal courts ard when have the the Court itself has prescribed diversity FELA them,27 standard in a number cases and and has majority Supreme Court, 26. cases, The 27. seems the in FELA concerned with “comxjlete language present ways, absence” has articulated the test in several example: both Lavender and Planters. for The Laven * * * “Only (a) der decision stated: when there is “Where the ease turns complete probative credibility absence of facts to on controverted facts and the support witnesses, peculiarly the conclusion reached re does a the case is one ” * * * appear. jury.” versible error for the Ellis P. R. Union 653, 1947, 649, 653, U.S. at 66 S.Ct. at 744. Planters 329 U.S. 67 S.Ct. only holds: “It is when there is com L.Ed. 572. plete probative sup (b) probative absence facts to “[Evidence of] facts port jury’s reached conclusion that from which [substantive law ele judgment ignored.” reasonably be at ments] could be inferred.” “complete Co., 1944, is ab 874. submitted Tennant v. & Peoria P. U. R. 29, 32, must be read in context sence” with 321 U.S. 64 S.Ct. 88 L. probative immediately phrase facts” “of Ed. it; and, read, (c) following supra. so whatever mis See Lavender v. Kurn. majority may ap apprehensions Supreme cases, have In two non-FELA pear unfounded. has Court indicated that the same stand- folly us to make such effort. sheer for formulas open further for door left wondering help this what Court I cannot developed.28 be independent-mind- should some would do pp. mentioned, supra 389- As has been judge follow choose ed district court well- 390, perhaps most concise Supreme statements one оf Court explanation of Supreme accepted Court an- instead of the standard the standard Brady v. is contained the standard by majority. There is nounced 479- 320 U.S. Southern nothing should could do we never we L.Ed. 239. 64 S.Ct. position assume such an untenable [1], p. Moore, 50.02 Practice ¶ single adopting a formula. (2d 1968) (noting “the ed. disagree Third, reasonably the new stand- con have been courts majority Brady ard because “established” application of the sistent misleading at in its use least rule.”) “substantial,” not term if it errone- em- our forefathers The wisdom “substantial,” ous. in its The word used Amendment Seventh bodied legal sense, equally can well connote limits single Its expressed sentence. in a qualitative quantitative either or a by jury” right of trial “the stated as are meaning. implicitly This distinction was “according to the re-examined be recognized effectively by the avoided Many for- law.” of the common rules decision in Planters. See 380 F.2d past used in been mulas have that, closing, too, In I note notwith- employed the future will more standing all the variations which the Su- phrases. meaning explain of those preme played sufficiency has its Court Court can “promulgation” this No single theme, I unable find a thought and ex- Supreme the freedom limit instance which the Court any has judges, used and it is “substantial”29 of its pression the district Many types applies formulas of cases: various used to both as well arel * * * (a) does Court and inferior courts evidence “All of the in non-FELA cases collected point different direction and in one majority reasonably in note might cases cited be drawn ferences opinion and in the Car text to which that note Ore Union Co. it.” Continental appended. Corp., &bide Carbon L.Ed.2d 777. connection, respectfully (b) speculation allowed to it is sub “Mere any [Emphasis good duty about probative mitted that a rule as facts.” do States, granting Galloway supplied.] a motion directed v. United grant is the summary verdict ing familiar standard judgment; is, L.Ed. 1458. genuine noteworthy “show there is the Su no issue as to is the fact Also moving heavily two material fact preme and that relied has party judgment ante-dating is entitled to a as a mat FELA as illus decisions 56(c), Fed.R.Civ.P.; ter Rule for deter of law.” historic standard trative 75, p. see mining 3 Barron & 1234 n. to send Holtzoff § 133; Moore, jury. 5 Federal Practice ¶ Mc 56.04 See Wilkerson a case to the Carthy, 1948, [2], p. 53, 62, 2066. 336 U.S. (opinions of Mr. L.Ed. 497 S.Ct. Douglas), employ 29. “sub- Court does Mr. Justice Black Justice stating Tenn., citing opinions stantial” in for the test v. East Jones both 443, 445, the evidence to a sustain verdict U.S. V. & G. R. guilt (“jury in “The is made criminal cases: verdict of L.Ed. 478 S.Ct. questions disputed a must sustained ‍​​‌‌‌‌​‌‌‌​​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​​‌‌​​​‌​​​​​​‍if there is sub- to decide the tribunal evidence, taking Georgetown Washington view fact”) stantial most & Government, support McDade, 1890, favorable to the R. Co. v. 572, States, 1942, 1044, 1049, it.” L.Ed. Glasser United 60, 80, U.S. “facts S.Ct. (sufficient when significant quali- 680. ty It is that both dispute, in relation and the quantity men and the of the evidence are fair-minded which from them applying inferences.”) taken into consideration in may draw different the constitutional part articulations of stand- I therefore concur in and dissent part. ard. then do I offer as an alternative What majority formula? With Su- APPENDIX A preme conclude that “the Court I must to describe mere difference labels used FACTS * * '* [sufficiency] standard Shipman, trial, Daniel C. the time departure from cannot amount to a ‘the years twenty old, was 47 married for rules of the common law’ which the years, father six children. requires Amendment to be fol- [Seventh] (R. 49-50, 331). employ- Prior to his Galloway States, 1943, lowed.” Boeing, ment he with had established a 1077, 1089, regular employment record of for over L.Ed. 1458. thirty years,5 interrup- with two single some consider for- While through 1955, employ From 1936 he was mula the standard to laudable in ed Firestone &Tire Rubber inCo. uniformity, the name of I think un- shop capacities, including several machine necessary. purpose I seek achieve the supervisory (R. positions. 51-53). This of the Seventh Amendment—reservation employment briefly interrupted by disputes service with the Coast from of the resolution of factual Guard again (R. 1942-1944 and 52- alone—not to one establish 53). Following injury, a 1955 industrial preferable more formulas for the stand- Tampa Boats, he owned Master Craft purpose perhaps ard. And this best boat-building enterprise employing 25 or amplified language employees, (R. of Lavender more 53, from 1956-1958. 149). He moved single and Planters. If I had to choose a Huntsville, Alabama, where he owned formula, my among choice would lie Products, from 1959-1962 Custom Wood (a) Lavender; language three: making employed a cabinet firm which (R. 54). During (b) rule,” “Brady quoted heretofore 10-12 craftsmen. period, part-time pages again same he also worked on 389-390 and referred Corp., a KVK woodwork manufacturer. page (c) formula the same (R. 54-55). selling business, After his he granting summary judgment, that for position shop took a ma foreman and quoted supra. in footnote supervisor Productions, chine for TEC equipment subcontractor for NASA work. y2 job years (R. 56). quit IV. He his after 1 personal because difficulties with his CONSIDERATION OF THE MERITS supervisor. (R. 463). Immediately thereafter, employed precision he was as a judgment I concur in the of affirm- by Hayes scale model maker International ance, expressed but for the reasons August 1964 until December original Boeing opinion. day 1964, the before he commenced work Boeing Company. CONCLUSION injury tions: a 1955 industrial back errors, previous To correct our required surgical (R. correction modify Boeing to the Court should extent 57-58) hospitalization and a one-week incorporates misconception May stemming from chronic acute McCarthy, supra, Wilkerson v. re (R. 259). family bronchitis. His spect reviewed, to what should evidence is doctor had first treated his bronchitis in expression

withdraw the of doubt as to (R. 296, 308). validity holding the continued supra, Lines, Although spent Reuter v. Eastern Air he had his entire work- validity ing should reiterate the shops, fundamental life around machine the evi- Manufacturing pre-Boeing of Planters experience Co. v. Pro his dence of proficiency and Co., supra. tection spray Mut. painter Ins. as a was in States, test veloped in criminal cases. That was de- ed 5 Cir. length Riggs at some v. Unit- However, considering 106-110) and, except (R. ; evening serious conflict:6 shop reappearances brief at the model two Shipman’s pre-employ 6. Boeing introduced 452, 455-456), May (R. April he and (Def. #1) job which Ex. résumé ment formally Boeing work. returned to never following special comment: contained July employment on terminated his employ my past years “Throughout (R. 317). any type experience in I have had ment regular Shipman’s was 40 work week equipment.” (R. spray paint 152- 61). Boeing (R. re records hours. Boeing 154). addition, Mc witness In Shipman a total Shipman’s supervisor flected regular worked Donald, TEO Productions, “best him as his described plus 29 hours of overtime hours 456-458). (R. painter. qualified” spray (R. 186); during period month 3% Shipman paint had stated McDonald Shipman, however, he stated that had year period over a hours ed 40-50 1 1/2 averaged approximately hours himself, 462). Shipman, (R. 18 1/2 with TEC. spray paint any prior disputed significant (R. 79, 107), per claim overtime week proficiency, knowledge ing experience, or rejected by Boeing supervisor (R. his stating familiar with was that he 439). only equipment item” “mechanical as 118) (R. ever most he had and that Working The Areas spray painted minutes at “five or ten was * * * time, showing what someone shop Boeing The model located on was ** (R. 118, done wanted mill-type third floor a converted 153). the résumé statement He refuted approximately and measured structure Lawrence, having Ed written as 65). 61-62, (R. “trying 30x85 feet. Within the Boeing supervisor, was who his open get he in because didn’t shop me about a 12x15 20x20 foot was 152). (R. my ing qualification.” by yellow area marked lines off authorship. any such denied Lawrence designated paint- spray floor as (R. 411). (R. 69, 451). area. This area appear presented, it would all evidence foot, approximately contained an 6x6x8 experi- spray paint pre-Boeing production model, standard three-sided secondary when ence compared minimal and was paint open spray DeVilbis with an booth previous principal re- with his (R. photograph, front. Def. Ex. machinist, sponsibilities model #3). maker, shop foreman. The entire model room was forced-air spray Irrespective prior painting his conditioning by fed for hot cool or air experience, Shipman hired Boe- was system of an means overhead duct work ing, “special nominally, proj- at least as a grilled (R. 143, with 24x6 inch outlets. mechanic,” responsibilities for ect 474). Shipman only remembered three performing building precision panels and system, to four outlets one of (R. 60, general shop work. machine approximately located 40-50 was (R. solely 317).7 actuality, he worked away (R. 142-143). feet him. Boe- interrog 7. Boeing, written in its answer to ing diagrams testimony indicated the Spe Shipman’s job atories, described system (Def. had such outlets. Ex. six Project “A” and his duties cial Mechanic responsibilities “Working with #11, 474). Shipman as: recalled or five planning, developing, fabricating, assem doors, six one which in his work- was checking bling operational of me ing area, leading out of the main model systems hydraulic chanical, and structural (R. shop. 143). exception With training incorporated de in mobile to be leading damper special (Plain one fresh projects.” 16x16 inch air vices and other 317). #9, R. tiff’s Ex. roof, pressure from the the air was under (R. 412-413) 79) entirely only almost escaped leading if the door into 112) spray painter (R. as the lobby open. (R. 475). Alabama, Huntsville, Boeing’s man 20-30 spray paint booth was rear-end (R. 61), shop model from December atmosphere fan-exhausted the outside 1964, through (R. 50).8 8, March leading pipe means of inch a 16-18 through (R. 94-95, 414, a window. 468- 8. Shipman work on the afternoon left 469). Fan size estimates varied from hospitalized March (R. 94) by Shipman (R. 417). unknown to 24 item. He Shipman stated that Boeing 468). by inches witness R. a occasionally had been instructed to turn painting off the fan he had finished by addition, Shipman directеd was after drawing shop in order to cog- avoid machine 99), (R. 97, supervisor with the his dry- freshly painted dust over the items 98-99, (R. marshal nizance 444), the fire (R. 426). Moreover, in the booth. paint railings he in a back room supervisor spray unheated, stated most unlighted, and un- said was painting Shipman did was on instrument 97). (R. 74, Shipman stated ventilated. panels Space for NASA and the Marshall job required painting that the back room Flight averaged Center which 2 x x19 24 couple of hours two or three “a at a time painted inches in (R. dimension and 98). were days.” times different His two (R. 412-413; the booth. see Ex. Def. supervisor re- countered that task #8, panel orders). work (R. only day January quired one in late 432-433), room could venti- that the Shipman’s spent spray actual time opened a lated a bank windows painting Boeing for was estimated from single (R. 431; 475), and see R. means day (by as low as two to three hours a Shipman particular that painted on the date supervisor) (R. day 427) his only momentary cleaning to all with only fan for 30 minutes with a prepara in the room broken directed toward some (by Shipman) 139-140). (R. tion breaks (R. 431). out windows. major equipment Two issues are Equipment; Painting Procedure critical: face was a mask available or necessary gloves provided and were for Shipman air-operated, one- used an handling use when chemicals harmful quart type spray capacity, production alleged Shipman to the skin? tes- gun (R. commonly 89), type in- used in tified that he used a charcoal filter mask dustry. (R. op- 89, 413). His method (R. 103); for the first week suspend eration to be was to article clogged useless, after it and became he painted on a wire stretched across anything was unable to obtain than other open spray (R. front of the booth (R. 104). an ineffective dust mask. (R. 415) 97) or enter the booth itself Boeing approxi- witnesses testified along spray panels filter toward the mately eight replacement spray masks 110). (R. rear Provid- booth. nearby were available in tool crib sprayed ed the article to be small (R. 422, 446-447); shortage no enough on, the and the exhaust fan was and, had, existed if one it could have paint sprayed excess and fumes should day by pur- been remedied within a local shop have from the been removed model (R. 422); Ship- chase 349-350, that if (R. 110, 416, 430). environment. request man mask, did he was referred Shipman however, claimed, he (R. 420); to the tool crib and that the larger painted more items than the booth crib worker never remembered him even could than he did booth- аccommodate making (R. request. 349). super- His (R. 102, 146). 79-81, More- sized items Shipman visor asserted that never com- over, he in- claimed that he had been plained mask was unavailable. supervisor oc- structed his on several (R. 420). paint casions exhaust booth purposely Shipman fan not to further shut off so as draw claimed that types protective gloves sup- two machine and onto the dust into booth were paint (R. 101). supervisor plied Boeing: pair His a worn surface. out handling rebutted, Shipman however, poly- that while harmful chemicals and ethylene (Saran painted gloves Wrap-type) booth with prevent off, rubbing fan so more two he never did than oil skin off on fresh (R. paint. 425). Furthermore, (R. 103-105). minutes. He stated that general practice Shipman protective gloves turn he (R. had asked for began spray paint 104), on the fan as he had been turned down lack of feeling (R. money 106) (R. home as he well. a was with purchase local (R. sick, 108). reaching home, Upon he kept, was order some promise, to never . vomited, fainted, to crib and taken 166-170) supervisor tool was and (R. 109). gloves Hospital. replied were Dr. that operator both Huntsville Huber, family 350, 423-24, 447); physician had (R. and who available previously Shipman him 1961 for had worn treated since supervisor that stated bronchitis, (R. 423). treated him March gloves acute on occasion. (R. 1965, and off on thereafter. and equipment about item Another 264). by was also treated a number He Shipman complained enamel was specialists.9 of other during paint drying test con- oven used quality paint control ducted because a by Shipman Dr. Huber after was released week, April 114-115). opening problem. (R. one but readmitted and On 122-124). spent May. (R. He three literally oven, paint to fumes were said August TB Sanitorium in weeks a breath, away operator’s make take (R. 124-128); Decatur, Alabama then (R. cough, him and cause headaches. Birmingham hospital to a transferred (R. X-rays. (R. 117) oven not ventilated. lab . The was a tests and series 127-128). He was readmitted to Hunts 118) Boeing . to rebut never chose Hospital ville November referred complaint. Morton, psychiatrist to Dr. and neurolo addition, (R. 128), Birmingham gist Shipman commented that returned hospital. (R. 130-131). Finally, he was little swab to use his hands or a he had Bryce Tuscaloosa, Hospital, admitted engravings instrument on to letter Alabama, institution, a mental in March major (R. panels. 92, 188). One hospital fees, physicians 1966. His premises these that of his was expenditures action as his on as well estimated 135,137. drugs, appear at R. paints contained white red filler diagnos- Huber, specialist, Dr. chest* by expressly called lead which was aggravation ed his ailments as (R. specifications and work orders. pre-existing acute bronchitis caused Boeing 92). itself never addressed fumes, smoking and inhalation toxic engraving Shipman performed the how 314) (R. dust, or even dust house effectively task, de- painting filler (muscle weakness), polyneuritis (R. paints lead. that contained nied unknown, no medical evidence cause with 353-354); 6). p. at see Def. Ex. #9 theory poisoning. support of lead Boeing A witness read into the record (R. 313). did, however, amp- Dr. Huber engraving instructions filler entry lify original his medical record engraving, paint composition: “After “polyneuritis, etiology unknown” to in- groove lettering marking shall “pre- was clude observation (R. paint.” an oil be filled base sumptively to toxic en- due substance 354). work,” (R. 290) though countered Finally, testimony sur- revealed exposure he did not his toxic think plus (mainly cleaners) were chemicals (R. 297-300). Morton, acute. Dr. storage kept ground room in a floor bulk neurologist, psychiatrist in October (R. 186) containers, in- size in various Spring 1966, diagnosed 1965 and gallon (R. cluding drums. Shipman’s continuing reaction adverse ventilated, 231). poorly The room was psychoneurosis, anxiety (fear state according safety inspection re- a fire poisoning) lead of uncor- on basis (R. port Boeing employee. made neuropsychiatric roborated examination 230). Moreover, only apparent personal Ship- of consultation with extracting liquid chemicals means of (R. 376). man. He admitted that he large gallon from the drums was had “no information lead on [lab] 251). (R. siphon hose. (R. Shipman studies” run on 398- The Ailments 399), Shipman had revealed P.M., history (R. 401), 1965, shortly his after 4 acute bronchitis March On go only suspicion possible permission his Shipman requested applied Shipman’s had poisoning wife stated that to his based she lead prescribed paints he some of the hands an ointment a der- statement (R. 397). (R. 334). matologist, Both Holliman Her lead. Dr. had used contained recognized problem quite Morton skin Dr. discussion his Dr. Huber and comparisons descriptive, exposure to her more than as sustained were milligrams disposition per cubic his is nec- mental before and after 0.2 meter working Boeing. poisoning. (R. (R. 336-339). essary Her lead to cause Moreover, Shipman’s 312, 400). post-Boe- Huber Dr. admit- characterization Shipman’s 24-hour urine ted that test condition was summarized as follows: (recognized test) poisoning lab re- anxiousness, lead nervousness, more often an- port of March revealed no gry, very able to do little around any poisoning. trace of common metallic yard, eating poor house in his (R. 310). 265-266, sleeping (R. 342-343). habits. Dr. Huber recalled cracked condi- Basically, just didn’t “he seem himself.” Shipman’s hands, tion of could not but (R. 342). prescribing remember medication Although sought Shipman other em- (R. 269). employee, for it. A fellow ployment early May 1965, as however, he referring had remembered Shipman (R. company unsuccessful. 208-209, for treat- 218- nurse (R. 225). Shipman’s ment of his 340-341). hands.

APPENDIX B [LEGISLATIVE HISTORY, ORIGINALLY CITED IN ROGERS CO., MISSOURI PACIFIC R. n. 443, 1 L.Ed.2d AND REFERRED TO ON 386 in n. PAGE 14 OF THIS OPINION]

LIABILITY OF EMPLOYERS.

HEARINGS

Before The COMMITTEE ON INTERSTATE COMMERCE

Of The UNITED SENATE, STATES Having (H. Under 1657) Consideration the Bills S. S. Relating Liability of Common Carriers in the Dis- Railroads trict of Columbia and Territories and Common Carriers Rail- Engaged roads in Commerce Between the and Between the States Foreign Employees. States and Nations Their

May 3 to

Fifty-Ninth Congress, First Session. Washington: civilization,” embraced all and that product law of Printing prac- Rome —is the of a Government Office. regulative tical based, jurisprudence, processes centuries, (cid:127)X # “X* # if # tentative humanity really is, itas says so framed this was Mr. Wharton part form of Rome “when Rome a code law nation which into high it is enacted law also believe civiliza- periods controlled greater only give employees globe. will tion the business courts, rights will also tend in the following is taken quotation accidents, for if to lessen the number Pennsyl- the State issued book companies railroad are held account “The year entitled vania negligence gross for their hereto- where Employed Legal Relations between go fore have been allowed to free it Pennsylvania, Employers in and Their greater them will cause to throw safe- Existing Relations Compared guards the lives around and limbs States,” page Them Other between employees. their 181: you I MR. GILLETT. understand Do attempted to estab- have Some States you suggested that amendments this considera- that merits lish another rule morning to the law are intended cover attempt or measure to tion. is you just of these States that have re- sides, negligence compare on both ferred to? judgment of in favor and award then Yes, sir; MR. FULLER. with this been culpable. This doctrine has least provision added, questions that all Pennsylvania, of has it at in scouted negligence contributory negligence Georgia, and and adopted Illinois and jury. ground. strong shall be submitted to the gaining prin- Such is ciple justice that it com- of underlies right. MR. GILLETT. is all That many. to mends itself MR. FULLER. Under the Constitu- defining of Beach, doctrine right we that tion have now. says: negligence, comparative MR. GILLETT. It is the law now. canon, to it amounts to Reduced MR. FULLER. But some of our Slight part negligence of on this: judges they to seem think have not *** plaintiff defense is enough perform to help- duties without part gross negligence on the of to jury out, they arrogated and defendant. duty passing upon to themselves the of Law Redfield and Shearman questions contributory negligence of edition, Negligence, define of fourth questions questions of law rather than degrees negligence of thus: of fact. slight negligence of is Gross want your pro- MR. BIRDSALL. How does negligence care; ordinary of is want posed help proposition? amendment slight negligence ordinary care, is say ques- MR. FULLER. We great want of care. contributory negligence tions as to shall Louisville, etc., v. Robinson Co. jury. be submitted to the defining gross (4 Bush, 507, 509), question MR. BIRDSALL. Is it Robertson, negligence, Chief Justice say for the courts to there Is whether Kentucky, said: question of that kind to be submitted? neglect MR. FULLER. an intention We have understood is either Gross disregard is a wrong find or a reckless such out, negli- contributory whether there security imply bad gence or not. faith, squints at fraud and therefore magna culpa and is tantamount generally, MR. TIRRELL. The courts law, respects in some civil which where have taken the case from quasi jury, criminal. have said that there was no plain- evidence to sustain the proposi- Chairman, our we believe Mr. tiff. man who fair. It makes each tion is negligence responsible MR. for what As I guilty FULLER. understand now, of, requires guilty ques- we negligence Constitution he has been right. We tions of fact more than shall be submitted to the no think Now, therefore, citizen is consideration of the and that the entitled my premises employment, pass said them. have a hereby I all risk of accidents do assume this You think that MR. GILLETT. injuries meet shall help the will bill ? my employ- or sustain in the course resulting ment, MR. I think so. I think FULLER. or whether occasioned put judge if that statute is before a gross negligence or from the or other - plead by plaintiff any engaged corporation counsel person or any operating any it will have some effect. manner in railroad vessel, vehicle, employee or any or of or object of section 3 this bill any corporation person, or such prevent releasing tois the master from my otherwise, resulting and whether liability himself from his under sections death or otherwise. through employment 1 and contraсts agree got insurance. be done the Unless He has release rail- legislation object company gross of this negligence. whole would road flat, fall companies for the reason that the railroad up- MR. Has CLAYTON. court employing before a man would held that sort of an enactment? sign agreeing him make a contract liability injury. relieve them from for Yes; they up- MR. FULLER. have agreement. held that sort of an It has baggage masters, Train in addition to upheld by Supreme Court regular performed their duties for rail- the United States. companies, road required also often are express, following to handle [Reading:] sample of the release contracts which agree hereby indemnify And I do sign. only required I will Express and save harmless American quote a from few extracts con- these Company any from and all claims tracts and will submit whole contract may against any which be made it at part testimony. my aas This is from by any corporation person time or under application Express an of the American any agreement which it has or made Company: may make, any arising hereafter out of express company, And whereas such recovery upon my claim or part, or the many under its contracts part my representatives, damages for corporations persons owning op- or my injury sustained reason of or erating railroad, stage, such and steam- death, injury whether such or death re- lines, obligated may boat is or be to in- any gross negligence sult from the demnify corpora- and save harmless such person corporation, any or employ- or of persons against tions and from and all injuries any person claims ee corporation for sustained em- or or its other- ployees: wise. LIABILITY OF

COMMON CARRIERS TO EMPLOYEES

HEARINGS Labor, Before Committee on Education and Senate States (S. 5307)

ON THE BILL Relating Liability Employees CommonCarriers to Their dependent none, kin if then next

Washington more several We which proper place for a commerce of the Knox you committee It MR. SENATOR have ^[******] Judiciary seemed a labor question. Government we desire. We FULLER. jurisdictions, presented no has question, and that bill. to us to RAYNOR. Committee not before it Printing Office I will in this than a arguments before are not a bill because Let me it committee. judicial very it covering it was is the favor glad bill ask or bill or death.” upon bill that went bill that lute there ? it resulting Now death, Have you Now, you may be, might not. will find that right you propose to such Supreme you whether parent If you employee, you Supreme started before the recover prepared, Court or next will look there was such recover give used with the for the passed injury all such which Supreme them Court decision this kin, passed or injury or language. the abso- whatever provided damages injuries original original damage Court. death. upon, I can. to answer No, MR. sir. FULLER. here I can be RAYNOR. SENATOR I it be- SENATOR RAYNOR. morning. minutes a few may fore “You for all me. recover Judiciary Committee. I am on the damages result,” on. and so bill year. I voted on it last gives you There a word here that suggestion Follette’s with of Mr. La absolute recover. would that the vote I cast the time to him at embrace a class of the cases that State pronounced thought the would be I bill consistently you courts not have held can ground the on unconstitutional recover for. of It would cover a class pronounced it court afterwards the society cases the loss loss and the had the Senator But unconstitutional. recover, ap- of affection. must I You they decide perhaps would that idea an prehend, ground pecuniary some on

otherwise. damages. point. important That anis I just the bill. want over I looked have just things There three that strike or three to your two to attention call going me, which I will mention without you bill things say had this in it. You bill, page into details. Look at of3 lawyers. by capable You want framed lines 22 and 23: good. all, which, passed be if at will a bill negli- questions relating All to fact pro- will not be You do want bill gence shall be for to determine. again. unconstitutional nounced ambiguous very provision. That is a Undoubtedly not. MR. FULLER. anything You did not have of that sort call to I want RAYNER: SENATOR original in the ?bill things or to one two your attention Yes, MR. FULLER. A sir. broader section, first Look at bill. provision. page. This the first lines on three last beg pardon. I SENATOR RAYNER. of the going the merits into is without provided negli- questions that “all bring just to controversy all, to at but gence contributory negligence shall to be appear me to your what attention jury;” be says the court go on You face. patent on its defects original reference bill: every carrier common provide that to unnecessary We further deem it to engaged between commerce iswho express opinion concerning alleged forth, be States, shall and so several repugnancy of statute line to seventh third on the liable, then “and, amendment, say provision because you page bottom jury. senting power Congress the act as to the bill to meet the saying this, however, Supreme you must not be decision of the we have intimating questions think half a considered we dozen new here you susceptible provision submit to the Court. Look argu- placed page on it in 18 on line no the construction 3. You had such provision ment, original or as that could be so construed in the bill. dangerous very provision: It is would constitutional. Provided, employee, of the Con- seventh amendment That The no such who regulates injured killed, of the United States stitution shall be [sic] you anything guilty Why put contributory held to in the have been do that. negligence you any the seventh bill at all when case where the viola- providing tion of amendment trial law such common carrier con- any involving injury tributed to in reference over or matter death such employee. Why just that under not leave $20? trying con- Constitution without entirely That is an provision. new strue the Constitution? Look My at it for practice a moment. wishing has MR. limited FULLER. Without cases defendants. any speak provision any cases, I do damage now of the bill take of these although why from the there is no different law that reason I should regard to courts jury. put ly. of this gence question a provision in the negligence. tions themselves court out object some passed, prehend that where seventh amendment. SENATOR RAYNER. MR. FULLER. But SENATOR MR. FULLER. SENATOR RAYNER. it entering I do not know what will do taken from instructs into of fact was to jurisdictions, practice bill. ultimately I will pass upon it is the of no evidence the of fact and the fact. into there I prevent hands of voted that RAYNER. say— bill. right any the practice bill other it is no I will If there the ought for the bill from jury. argument was to courts, especially in I at ought do a constitutionality States, pass that there jury. all just say, with- negligence The court will decided to to But it I assuming to But you is no not to every know go other, original- want it to that to higher negli- ques- State is no what have is a the ap- be to you whether posed provision. law no matter contributory negligence court and have if a the to the know what no running back under the cars. selves employ have certain were the time. These standing on the street for more than a * * * gross you and over not if I question proximate ^[******] principle, could not city been, been. carrier violates a injured by running the street carrier, employ length railroad, young of the it wanted ordinance case, again. how even ais Is it shall be raised as to the when the cars were stand- cause of time. of the railroad prove municipal law, which has occurred over gross though railroad) that his were against fair, that Some of the a young in under the cars and prohibited to the do statutory law, his it under this doing, it is it. negligence may the of the They it law, negligence men and negligence men who were amused city public, just, shown injury? Let me but in some a common- them from no matter were over ordinance. employees employee, (I not do not to to them- boys, then pro- give Yet say the your Let me to another permit, call attention If the chairman will would proposition. provi- lawyers All these are new submit to the of the committee pre- words, proposition In the sions. other instead of that there can be no rogatives judge presiding a over a negligence that of a carrier actionable any single power a court of existed How can law of law. violation is not a adoption. grossest simply at the of its It date presented in the which case be it preserved quo then pleaded set the status as ex- or even negligence could be isted, are and the authorities on that measure the up to determine as matter damages, any perfectly clear. can there how be damages of the because reduction contributory the THE CHAIRMAN. did Where negligence there where common in custom come from which is negligence that is case actionable no country in the courts of our words, In other of law? not a violation judge hearing all the evidence language using here which will arewe stating plaintiff as and then litiga- confuse, invite will lead which con- a matter of law the evidence showed tion, simple plain, declaration when thereupon tributory negligence, and purposes committee what is peremptorily defendant? to find for the any way to avoid in such a be made can prin- Under MR. FAULKNER. misunderstanding. ciple of that when the facts are law the other clause: As to may apply undisputed, the court given applicable principle of law to that relating negli- questions of fact “All facts; undisputed state of those gence to determine.” shall guilty party facts show that the has been I think perfectly frank. I desire to be contributory negligence, the law de- Why? go it ought Because it out. court, recover, he clared should change it exists to- law does circumstances, has the under these at- day, my judgment, and if it did jury. In some to take case from change tempt it clear- the law would be doing courts, defend- instead words, the ly other unconstitutional. evidence, brings ant demurs protects without amendment seventh record, the demurrer the facts in the whatever, com- exception trials all at admitting asserts the facts jurisdiction, as mon law under Federal true, present a case under it does not England coun- and in this established po- If law. the court sustains try adoption at date of a ver- sition of the defendant directs amendment. dict for the defendant. court prerogative of the It was IAs under- SENATOR BORAH. adoption of that amend- the date stand, when the facts charge questions as to ment dispute upon there is the facts the no considering facts bear- law after question of court holds law and questions. It ing upon those not of fact. wheth- to determine province of the court purely should be withdrawn MR. FAULKNER. er plain- question that the jury by the fact of of law. reason brought his evidence not in had tiff way That the SENATOR BORAH. of law. the the terms himself within they come at that. court, province the of the It was Yes, MR. FAULKNER: sir. to-day, aside to set must it is be power question The toas the of Con- of evidence. for want sufficient verdict a gress to interfere with the seventh Any prerogatives or others one of those very interestingly pro- a amendment is discuss- that could be mentioned by Judge Story ed attempt- Congress in the case of Par- of the statute of vision sons Bedford judge Robeson] & presiding [Breedlove the take from ed (3 Pet., 732]), trying L.Ed. law and there [7 a common court a Federal very learned, lucid, a the seventh elaborate dis- violation would Capital question cussion of this amendment whole seventh The amendment. pre- Company (174 Traction v. Hoff from the [Hof] or taken added has not [1]) it, although U.S. 518 S.Ct. brought [19 it has been before 873], it two or three It times. must result powers its the Judge Sprague, under seventh in the circuit court remedy is, however, amendment. The States, the the case Unit- judge goes subject who too far is against 1,363 Bags ed States of Mer- higher review the court. [D.C., 15,964] (2 chandise Fed.Cas.No. Sprague, 88), says: 85 and proper here to insert a table trial secures a “The Constitution lighten which will somewhat the labor defining is. trial what the without looking of the committee in over this what common law to learn left to We are put matter. I desire to in the record Now, the trial it is that secured. list the adopted States that have * was, by jury the Constitution when prin-* *. generations adopted before for —and THORNBERRY, Judge, Circuit England been, and in here time had ' GOLDBERG, whom Judge, joins Circuit by twelve of fact trial an issue —the (concurring specially): men, superin- under the direction and Having participated court, direction and this in the tendence of the decision of opinion Planters and superintendence essential written an part Court in [Industries, Helene trial.” Curtis Inc.] Pruitt, 5th Cir. simply announces This decision sufficiency which also involved to the com- stated I have doctrine that evidence, I appropriate think it for me to mittee. separate opinion enter a expressing my Moody, that Mr. Justice You find will views. As for majority Part I Illinois of Howard v. the ease opinion, agree I that federal rather than Central [207 state law controls. forAs decided, 297], just holds L.Ed. of whether standard act, provision similar old which is applicable evidence in FELA cases judgment this, affect not in his did cases, altogether non-FELA I am not way Justice or the other. Mr. law one persuaded by majority Part II virtually takes same view White opinion. While railroad defendant majority opinion, it in and I do in an áction under the FELA is held to myself does affect believe higher standard of than care the de- powers they at com- of a court as exist fendant in a diversity per- conventional effect, law; not, if no mon it has injury action, making sonal thus a di- subject why Why put it in? leave against injured rected verdict plain- litigation? for discussion or unlikely tiff more cases, in FELA I am Senator, there SENATOR BORAH. not convinced that a different test for practice phase is one in the Fed- sufficiency follows from this difference suggested eral courts kindred to one controlling substantive law. say this in chairman. do Largely given by Judge for reasons Tut- courts, criticism of or that by Judge tle in Planters and Rives in indulge all in it. But there are case, my his dissent in this I adhere to which, Federal courts when the evidence concurrence part in that of Planters in, there is both sides is when which holds that test suf- disputed question, practice have the ficiency should be the same in all federal charging opinion hand, cases. On other I believe the court what as to is. evidence way they characterize FELA I MR. FAULKNER. That true. standard Planters and Helene Curtis fact, realize that I not see place do emphasis undue on Wilkerson you going it, McCarthy, how because avoid thereby implying more permitted the rule of common law judiciary restricted role for the than is and the truly required Court has not criticised Supreme Court deci- I cases. concur in FELA sions overruling extent to the of Planters motions di- that on there

we held judgment notwith- verdict rected should

standing the court the verdict inferences only the evidence and

consider support case. the non-mover’s majority III in Part

I concur that has opinion. the standard I read ruling mean formulated judg verdict motions for directed on consider all should the court

ment nov light evidence, most favorable inferences reasonable interpret party. opposing to the should consider the court

mean favorable inferences most

evidence party opposing the uncontra put the movant. dicted Starling Life Insurance v. Gulf 706; Dehy Cir. 5th Corp., drating Co. v. Smith Process A. O. fn. 1st Cir. grant this,

Having court should done reasonable, fair-mind ‍​​‌‌‌‌​‌‌‌​​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​​‌‌​​​‌​​​​​​‍ motion no conclusion other reach

ed men could urged the movant. than the one America,

UNITED STATES of Plaintiff-Appellee, SUTTON, Jr., Noah Defendant- Jack Appellant. Sheridan, Jacksonville, Robert E. Fla. No. 26947 (Court-appointed) defendant-appel- Summary Calendar. lant. Appeals Court of United States Boardman, Atty., Edward F. U. S. Fifth Circuit. Forman, Atty., Samuel Asst. S. U. S. May Jacksonville, Fla., plaintiff-appellee. Rehearing Denied June BELL, AINSWORTH, Before GODBOLD, Judges. Circuit

PER CURIAM: Pursuant to new Rule court, Rules of this we have concluded on the merits that this case is of such notes determine, there “not whether must year English system, however, The one literally evidence, there but whether no was after Richardson decided properly upon can which a Court, United States abandoned party proceed for the a verdict to find Toomey “scintilla” rule v. the London, The Improvement v. producing Co. it.” etc., Ry., 1857, 3 C.P. C.B. 442, Munson, L.Ed. [20 14 Wall. Eng.Rep. N.S. with the Agency Railway Express v. 867]; see observation: Cir., Mallory, evidence, “A or mere scintilla sur- probative requirement “The might negli- mise that gence there have been reason, supporting, capable facts part defendants, expressed the verdict.” conclusion clearly justify judge would not Reading Myers jury: leaving There L.Ed. they might must be evidence reasonably Coast Thomas Atlantic see properly ” conclude that Co., Cir., 4.’ Line negligence.” there was added). According (emphasis Id. at 696 Hay Company Carpenters, etc. supra 564-565, Toomey Blume, Eng. Dougl. ward, K.B. Hardy, Davis v. K.B. 6 B. & C. Rep. 241, denied with a nonsuit Eng.Rep. (new trial by any evi “Whether there observation: test), “give us in brief the modern law Judge. dence, question for involuntary nonsuits.” evidence, is for sufficient Whether jury.” Supreme Court, The United States been considered case has This Munson, 1871, Improvement Company v. exemplary British courts fact that (81 U.S.) 14 Wall. rejected originally applying a stand scintilla were rule the “scintilla” for the fed- determining issue when an ard courts, holding; eral Develop Blume, Origin jury. judges any longer required “Nor Verdict, Mich. ment the Directed jury merely submit a be-' (1950). rule same L.Rev. prevailed cause some evidence has been intro-

Case Details

Case Name: The Boeing Company v. Daniel C. Shipman

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 7, 1969

Citation: 411 F.2d 365

Docket Number: 24588

Court Abbreviation: 5th Cir.