*1 normally rugs placed would not linoleum RAIL- CITY SOUTHERN KANSAS required the clerks fall over where COMPANY, Appellant, WAY extremely have been to work. v. point plaintiff there to difficult for JUSTIS, Appellee. negligence by any specific E. Carlton to act rugs causing to particular person No. with- it store had fall. The owner Appeals United States complete power full and to make Fifth Circuit. subject. proper that proof It was April 6, 1956. ipsa loquitur himon shift the burden res Rehearing May Denied proof. go with the forward present it is not In the case rule, English between the to decide of sub- the doctrine as one
which treats recognized by law, rule or the stantive States, Supreme the United Court of only contemplates doc- which shifting to defend- used as trine be going evi- on with the ant burden loqui- theory ipsa res Under dence. easy place in this It is tur no case. which with the effectiveness
to visualize could be used the instruction juror room. A favorable sort others with this confront the could argument: “Here we five credi- have moving swearing that the witnesses
ble speed engine proceeded miles of ten hour;
per five other credible witnesses speed four
testified that told But the Court has an hour. miles permitted infer we are us that from the mere happened.” that the accident
fact
By placing this inference in the scales plaintiffs, possible side fideli- this conflict strict
to resolve giv- ty law as the facts and both to It was Court. en ipsa loquitur place the Court when all of the on one side
the scales fully developed. do was To so facts were appellant prejudicial under a to cast the the law does not sanction.
burden
Brady
Co., 1942,
R.
222 N.C.
Southern
367, 23
affirmed 320 U.S.
S.E.2d
232,
sons cases remanded. and the reversed Rehearing CAMERON, denied: Cir- dissenting. Judge,
cuit *2 Butler, and James J.
Vernon Woods Wilkinson, Shreveport, La., Lewis & Wil- kinson, La., counsel, Shreveport, for appellant. La., Lockard, Shreveport,
Leonard L.
appellee.
RIVES,
TUTTLE
Before
Judges.
CAMERON, Circuit
Judge.
RIVES, Circuit
Em
Federal
under the
This action
brought
Liability
ployers’
Act1 was
conductor,
appellee,
against
appellant rail
plaintiff,
as
road,
and brake
Plaintiff
as defendant.
Young
at the
caboose
were
man
brought
when was
the train
it
rear of
inspection
stop
for a scheduled
to a
According
Shoreline,
to their
Louisiana.
stopped
un
testimony,
with an
the train
extraordinary
jolt,
usual
so
hit
neck
left side
away
safety pole
inches
a few
an iron
Young
floor,
was
then hit the
and he
run
propelled
in a
down the aisle
gripped
feet,
a seat
then
forward
of his
which broke the force
movement.2
regular stop,
Although aware of the
building
Young
plaintiff and
were
caboose.
stove in the
a fire
iron,
packing
plaintiff had taken a
long
used
rod
18 inches
iron
about
train,
journal
pack
boxes
He
poking
in the stove.
at the ashes
standing slightly
nar-
over in a
bent
place
or no
with little
and confined
row
space
move his feet.
in which to
Following
accident, plaintiff
physicians
several
and X-
examined
rays
unexplained
taken. For some
detected, al-
no fracture was
reason
though
was established at
the trial
layman
even a
should have observed
spinous process of
that the
the seventh
vertebra,
projects
a bone
cervical
spine
fish,
fin
like the
of a
from the
Young
one,
tliis
and Brakeman
re-
as
§
1. 45 U.S.C.A.
stop”.
to it as a “terrific
ferred
n testimony
ordinary
plaintiff,
the usual and
addition,
testified that
In
upset
stop
walking
railroading,
years
will not
trainman
twenty-six
top
rough
stop
of the train.
on the catwalk
one other
attempted
prove
wide,
long
I. The
inch
and one-half
one inch
negligence arising
fragment wholly
from confusion of
midway and the
broken
about the
the forward crew
Believing
pain
the members of
to be
detached.
*3
given
inspection
attending
train
physicians
of
to be
kind
arthritis,
of
result
days
ac-
Three
before this
at Shoreline.
to work
return
to
caused
cident,
inspection
was
at Shoreline
accident.
months after
two
“running
changed
inspection” to
from a
fracture
pain
unhealed
from the
The
“ground inspection.”
that
a
Prior to
to work
continued
severe that he
sowas
by
time,
inspection
pain
was achieved
only
of sedatives
the aid
slowing
dropping a
simply
down,
ap- train
killing medicines,
work for
did
but
drawing
engine,
off the
brakeman
year,
his
which time
proximately
at
one
by
slowly
allowing him to
train
him
diagnosed
pulmonary
as
was
condition
caboose,
kind
catch on
a casual
hospitalized.
and was
tuberculosis
inspection,
of the
and to
side
was
contended that it
The defendant
thorough
inspec-
type
A
train.
more
train
in
not
inaugurated by
di-
tion was
recting
a bulletin
Shoreline,
in-
and that
at
jury
inspection “be accom-
neg-
solely
his own
resulted
from
walking
plished by
from the
brakeman
ligence.
head end
brakeman walk-
until he meets
directed
motion
a
The defendant’s
they
ing
end,
from
after which
the rear
jury
The
returned
verdict was denied.
inspect
over,
back,
will cross
walk
plaintiff in
for the
the amount
a verdict
opposite
train.” While
side
$45,000.00.
defend-
Thereafter
change suggests
possibility, we
judgment notwith-
ant’s motions for
specific
find no
evidence
confu-
alternatively
standing
the verdict
thereby
sion caused
resulted in the sud-
trial
for a new
were denied.
den
specifications
Appellant’s
of error are
ample evidence, as
was
There
follows:
as
ju
indicated, from which the
heretofore
“1.
error
submit the
ry could
found
train
have
being
jury
proof
case to the
there
no
stopped
sudden,
with such a
extraordi
ordinarily
negligent.
that defendant was
nary
jolt
violent
as
jury’s
verdict
is so
The
not
does
occur
of some
“2.
in
absence
against
weight
overwhelming
negligence.
Louis
one’s
See
v. St.
Raze
arbitrary,
the evidence as to be
Ry. Co.,
Southwestern
Mo.
disregard
capricious and
utter
According
S.W.2d
to the evi
the Court’s instructions
that:
dence,
stop
result
sudden
could have
“(a) The evidence that Plaintiff’s
possible
fromed
one or more of three
up
tuberculosis was caused
by
flare
handling
(1) improper
causes:
tearing
lung
traumatic
tissue
end,
improper application
front
such as
conjectural
and insufficient to
by
engineer;
(2)
of the brakes
de-
jury’s
support the
conclusion.
faulty
line;
(3)
fective
brakes
brake
a maldistribution of the
“(b)
train load.
The
held the Defendant
attending
liable
the errors of the
engineer
ap-
The
testified
physicians.
plication of the brakes and he and the
other
The refusal
Trial
members
the forward crew tes-
“3.
grant
mishandling
there
no
Defendant’s Motion
tified that
ground
train
end.
New Trial on the
at that
The brakes
for a
inspected shortly
excessive,
verdict was
when
brake line
been
the
weighed
inspected
Plaintiff’s contribu-
before the accident and were
stop
tory
Shoreline,
and the cause of the
and no de-
up
tuberculosis,
fects or deficiencies were found. The
flare
was an
report
wheel
showed that the train con-
of discretion.”
abuse
empty
sisted of 15
cars and 48 loaded rear end of the train
will run into
pulled
jar
by
the loads
cars
and that will
The
make more
four diesel units.
the rear end of the train.”
caboose,
customary,
rear
was on the
end and
there
im-
conductor did
make
loaded cars
up
train;
up by
mediately adjacent
it was made
other
The evi-
thereto.
employees of the defendant.
proper-
dence as to how the load should
testimony, however,
the switch list
ly be distributed
Mr.
conflict.
showing
empties
the location of
and loads
Anderson,
ordinarily given
to the conductor
defendant,
conductor
introduced
*4
yardmaster,
the
this informa-
that
testified that when loads are
on
bunched
given
engineer
tion is not
to the
unless
of
the end
a train the likelihood of a vio-
the
so,
conductor himself does
which
jar
upon
lent
the caboose
the
he had not
done
instance.
of
rear
a
is increased because “the
being
might
end
run
loaded heavier
think that
the learned dis
We
train”;
into
head end of
while
the
the
properly
court
submitted the issue
trict
Young, who
caboose with
Mr.
was in the
negligence
jury under
of
plaintiff
an
and was
ipsa loquitur”
as that
doctrine of “res
empties
that, “Well,
brakeman,
arising
applied
testified
in actions
doctrine
is
running
more
load will make
Liability
into the
Employers’
the Federal
under
empties
you
toward the
jar.
If
have the
Act and other
federal
laws.4 The in-
charge
district court
jolt
jar, and,
of the
secondly,
The full
or
that the train
loquitur,
ipsa
the de-
to which
on res
was under the
control
exclusive
of de
exception
employees
as
reserved no
other
Mr. Jus
fendant’s
than
fendant
you
follows:
tis.
If
do not find that both of these
.charges
specific
your
to his
“In addition
factors have been shown
faction
satis
defendant, plain-
against
negligence
by
preponderance
of
a
evi
of the
upon
relying
you
of
dence,
ignore
here
the doctrine
tiff is
then
will
we have
what
ipsa loquitur,
Latin term
regarding
a
ipsa
res
which is
said
the doctrine
of
speaks
thing
meaning
loquitur.
affair
Likewise,
apply
or
it,
that
in order to
ipsa loquitur
you
that
means
plaintiff
itself.
for
the facts
Res
must determine that
is not
may
position
warrant
explain
of
occurrence
in a
cause of
they
negligence;
that
they
equally
not
the inference
compel
accident at least
as well as are
inference;
an
fur-
employees.
you
such
defendant’s other
If
do
negligence
preponderance
where
nish evidence
direct
decide from a
evi
may
lacking; but it is
then,
of it
be
applicable,
evidence
dence that the doctrine is
necessarily
weighed,
your
evidence to
unless the defendant has
shown
may
accepted
sufficient,
jolt
jar
to be
satisfaction that
or
explanation
rebuttal;
by
beyond
or
not nec-
control,
call
you
caused
force
essarily
they require
may
it.
plaintiff.
When a
decide the case for the
thing
injury,
which causes
without fault
“It
is
where the circumstances
injured person, is shown
un-
of the
der
to be
presumption
no
leave
room for a different
defendant,
control of
applies,
exclusive
the doctrine
and it is not
any
applicable
case,
and the accident is such as in the ordi-
by process
unless
nary
things
proper
course of
if
reasoning
does not occur
the facts and circum-
having
point
such control uses
wrongdoer,
stances
out
care,
evidence,
wrongful
it affords reasonable
in the
act,
character of his
ex-
explanation,
injury
every
probable
absence of
clude
other
cause of the
injury.
arose from the defendant’s want of
proof
care.
The doctrine is not
you
support
in this
If
connection
proof.
determine that
a want of
plaintiff
injury through
interpretation
sustained
un-
by
an
is a rule of
which evi-
unexpected jolt
jar
usual and
speak
of the
dence
logi-
of facts is made to
train,
part,
without
fault on
naturally
flowing
then
cal conclusions
there-
you may
plaintiff;
find for
defend-
unless
from.”
your
ant
shown to
has
satisfaction that
extraordinary jolt
jar
Sweeney
such an
Erving,
was not
233, 240,
228 U.S.
negligence.
ap-
due to its
In order
416,
815;
33 S.Ct.
57 L.Ed.
Jesionowski
ply
here, you
this doctrine
first
Co.,
must de-
v. Boston & Maine R.
329 U.S.
preponderance
termine from a
of the
416;
evi-
91 L.Ed.
John
dence,
was, first,
there
States,
an unusual
46, 49,
son v. United
333 U.S.
stronger
pack-
is,
think,
was braced
one testified that he
we
stant case
ordinary
ing
prepared for
iron and
application
so-called res
of the
for the
stop.
employees tes-
was the
other
ipsa loquitur doctrine than
they
per-
case,
the tified that
supra. There
continued
Jesionowski
negligence
formance
duties as
the deceased
such
claimed
coming
might
to a
about when a train
the sole
have been
brakeman
held,
as a
known
It cannot be
derailment,
no
other
cause
negli-
law,
matter of
that this claimed
part
the railroad.
on
gence
part
Here,
be claimed
most that could
injury.
the sole
of his
The issue
cause
failure to act
is his
jury.
being
improper
informed of
primarily
the load
distribution
general,
II.
The verdict was
brought
employees. The
other
way
there
no
to differentiate between
plaintiff had no connection with mainte-
damages admittedly arising
out
line, or
nance of the brakes or brake
this accident and the
claim
handling
in mak-
with the
of the brakes
That
for reactivation
tuberculosis.
*5
ing
the
He was entitled to re-
moderately
disease was found
advanced
injury
“in
if his
resulted
cover
whole five
the
The
months
accident.
part
negligence
any
or
from
the
in
physician
plaintiff
who had treated the
*
**
employees
the
such car- for
tuberculosis
testified
latent
by
rier,
reason
or
defect or in-
by
tuberculosis can
shock
be reactivated
sufficiency,
negligence,
to
due
in its
body
and trauma on
exterior
the
* * * equipment.” 45 U.S.C.A. 51.
that,
§
prob-
and
“I do think the accident
present case,
jury
In the
the
once
found ably
physician
caused it.” A
introduced
jolt
a sudden
and an unusual
contrary
the defendant testified
ato
jar
they
negli-
or
from which
inferred
opinion.
agreed
physicians
Both
gence,
negligence
such
could not be plaintiff’s
unexplained pain
severe and
chargeable solely
plaintiff.
to the
If
from
undetected fracture with
negligent
all,
negligence
at
was con- consequent fatigue,
anxiety
worry, and
tributory,
barring
recovery
not
but
prime
aggravating
were
factors in
tu-
calling
damages.
for a diminution of
argues
berculosis. Defendant
that these
45 U.S.C.A.
53.
§
consequences
solely
resulted
from
negligence
attending physicians
thus far
discussion
The
failing
in
to detect the fracture of
account the claimed
take into
vertebra.
position
plaintiff in
in
standing
failing
brief,
According
appellant’s
to hold
and in
to
safety pole
by appellee,
rather
than the
issue
acquiesced
onto
in
shaking
packing
jury by
he was
iron with which
an instruc
to the
submitted
5
grate.
find
out
not
record.
the ashes
do
which we
tion
468;
damages
391,
pected,
L.Ed.
Wilkerson
caused
92
and that
S.Ct.
68
62,
53,
company
McCarthy,
plaintiff,
in this
336 U.S.
v.
497;
mal-
Geotechnical
liable
such
413,
Cf.
would not be
for
L.Ed.
case
93
Co.,
ordinary
practice
Pure Oil
5
This
Corp.
v.
lack of
skill.
Delaware
or
205;
v.
Cir.,
Whalen
Phoe
so for the reason
doctor
F.2d
is
196
Co.,
independent
Indemnity
Cir.,
occupy
220 F.2d
an
con-
5
the status of
nix
Mfg.
Raytheon
Co.,
agent
tractor,
officer,
4;
v.
not
or
and was
Giacalone
note
249, 252;
employee
Cir.,
also the
railroad.
F.2d
See
222
1
Ry.
you
charged
“However,
Pacific
Co.
are
further
in Texas &
discussion
negligent
injury
Cir.,
Buckles,
232 F.2d
inflicts
257.
that when
natural,
another,
liable for
he is
all
reasonably
you
probable
find it
is
the evi-
foreseeable
con-
shown
5. “If
sequences
the railroad selected the doc-
of his act.
dence
guilty
physi-
tors,
were
“Even
the hands of
skilled
if those doctors
surgeon, patients
malpractice
or exercised medical
skill
sometimes
re-
cian
reasonably
treat-
what
is
less than the best medical
than
ex-
ceive
less
Judge
CAMERON,
(dissent-
so,
was too favorable
Circuit
If
the instruction
ing).
defendant,
for the law is well
settled that:
my
For
dis-
the reasons set forth
negligent
is liable
“If the
actor
senting opinion in
& Pacific Rail-
Texas
injury,
lia-
also
for another’s
he is
way
Buckles,
Cir.,
F.2d
Co. v.
bodily
harm
ble
additional
I
think was
it
error
resulting
by third
from acts done
apply
below to consider or
the doctrine
rendering
persons in
aid which the
ipsa loquitur.
developed
I
in that
reasonably
injury
requires,
other’s
general
opinion the
rule that
this doc-
acts
of whether such
irrespective
necessity only,
trine was a rule of
are done in a
applicable only
when
evi-
(cid:127)
Restatement, Torts,
manner.”
§
readily
dence is
absent
not
avail-
457, p. Here,
there,
able.
I think that
fully developed
facts were
in the evi-
suggestion that
nowas
dence.
due dili
exercise
did
doctor,
selecting
gence
áof
exactly
Plaintiff Justis showed
what
injured
required of an
doing,
is all that
he was
brakeman- who
that
person.6
any event,
under the
even
In
supple-
in the caboose with him
defend
testimony.
too favorable
instruction
ant,
All
mented that
of the mem-
clearly
-
exactly
authorized
of the train crew showed
bers
in reliance on
doing.
find the issue
what
The condition
treating physician.
testimony
of the brakes was
dence,
disclosed
the evi-
*6
prop-
and the brakes had worked
stipulated that
III.
It was
erly
equipment.
on all of the
The con-
years
expectancy
19.2
life
roadbed,
terrain,
dition of the
the
and
years.
expectancy 9.32
his work
and
equipment
all of the
was shown
earning
$5,700.00
net
taxes
He was
per
testimony.
year.
permanently
is
disabled
He
only occupation
railroading,
engineer
from
The
was the
man who
known. His fractured vertebra
he had
performed any
bringing
duties in-
although
corrected,
yet
he
has not
been
stop
train to a
and he used the auto-
almost
confined to his bed for
braking
had been
system
matic
on all of the cars
considerably.
year
a
and had suffered
speed
fifty
to reduce the
from about
lungs
area
both
is con
The affected
twenty
hour,
miles to about
miles an
from
There was
siderable.
thereupon
evidence
and
slacked off on
auto-
which the
could have failed
applied
matic
independent
brake and
guilty
negligence,
engine
of
gradually
find
brake
until the train
degree
requiring
to a
complete stop.
came to a
proved
It was
damages.
of
The by
a further diminution
him and
a number of outside
denying
action of
trial court
the experts
that
what he did was the
thing
motion for new trial
is “not without
to do.
support in the record”. Neese v. South
developed, by his examina-
Plaintiff
Ry. Co.,
77,
131,
350
ern
U.S.
76 S.Ct.
witnesses,
theory
of
that
tion
132;
Pitrie,
Cir.,
Cf.
v.
5
Whiteman
given
sufficient notice was not
to the
to defendant’s reliance not be should
tion that doctrine
applied. every legion and are
The cases are problem consideration.
side of the under directly point or none I found have problem. are determinative of my dissent in Texas & The law cited Railway Buckles, supra, Pacific applies Co. v. nothing gain- would be here citing my opinion, other In ed cases. judgment of the Court
the actions produced by applying part
below ipsa loquitur, was error and this judgment
for which should re-
versed.
Rehearing CAMERON, denied: Cir- dissenting. Judge,
cuit
Bobby HOWARD, Appellant, Jack America,
UNITED STATES Appellee.
No. 15665. *8 Appeals
United States Court Fifth Circuit.
April Dunnam, ap Jr., Waco, Tex., V.
W. pellant.
Lonny Zwiener, Atty., F. Asst. U. S. Austin, Tex., appellee. HUTCHESON, Judge, Chief Before RIVES, BORAH, TUTTLE,