The PENNSYLVANIA RAILROAD COMPANY, Appellant, v. Robert Livingston POMEROY, Executor of the Estate of Elizabeth Eagan Pomeroy, Appellee.
No. 12912.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 24, 1956. Decided Nov. 15, 1956.
Petition for Rehearing Denied Jan. 2, 1957.
239 F.2d 435
* * *
It is argued by petitioner that the case of Fahey v. Mallonee, 1947, 332 U.S. 245, 255-256, 67 S.Ct. 1552, 91 L.Ed. 2030, throws doubt on the doctrine of this court barring estoppel or waiver under the circumstances indicated. However, the holding in that case is narrow and appears to be limited to the point directly involved. Read in this light the case holds only that where a corporation has been created by a statute it has no right to contest the constitutionality of the statute insofar as it provides for proceedings terminating the corporate existence and winding up corporate affairs on the ground of insolvency, mismanagement or the like. The case is thus limited to a challenge of the constitutionality of the basic statute, and a challenge of the statutory power to terminate a corporation created by statute, where the grant of corporate existence tendered by the statute has been accepted. Neither of these situations is present in the instant case. Fahey v. Mallonee is therefore subject to the same distinction as the Pierce Oil [Pierce Oil Corporation v. Phoenix Refining Co., 259 U.S. 125, 42 S.Ct. 440, 66 L.Ed. 855] and other cases dealt with in this court‘s opinion in Peoples Bank v. Eccles, supra. See also United States v. Appalachian Electric Power Co., 4 Cir., 1939, 107 F.2d 769, 791, reversed on other grounds, 1940, 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243.
The petitions for review will accordingly be dismissed, without prejudice to such steps as petitioner may be entitled to take, consistent with this opinion, in the event a justiciable controversy with the Commission later arises.
So ordered.
Mr. James C. McKay, Washington, D. C., with whom Messrs. Hugh B. Cox, James H. McGlothlin and Harold M. Willcox, Washington, D. C., were on the brief, for appellant.
Mr. Hyman Smollar, Washington, D. C., with whom Mrs. Norma G. Zarky, Washington, D. C., was on the brief, for appellee.
Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.
This case involves the question of the liability of a railroad for the disappearance and death of a passenger. The appellee Pomeroy (hereinafter referred to as plaintiff) sued in the District Court to recover damages under
The case was here at an earlier stage, when we reversed a judgment of the District Court dismissing the complaint upon plaintiff‘s opening statement. Pomeroy v. Pennsylvania Railroad, 1955, 96 U.S.App.D.C. 128, 223 F.2d 593. On remand, a jury trial was held. The plaintiff‘s evidence, together with certain stipulations, disclosed the following:
On September 5, 1950, Mrs. Pomeroy and her husband were coach passengers on one of the railroad‘s trains en route to Washington. As the train approached its destination, she told her husband1 that she felt warm and was going to the vestibule to get fresh air. She went toward the rear of the coach and was never again seen alive. Later her body was found to the right of the tracks at Signal Bridge 1338/1339 in the District of Columbia, about 2 1/2 miles from Union Station. The body was lying on the outside edge, and 600 feet from the end, of a “very moderate” (one degree) curve in the tracks totaling 2,800 feet in length.
It was stipulated that Mrs. Pomeroy left the train through the right rear door of the vestibule of the coach in which she had been sitting, and was killed when she struck the ground. No one, however, witnessed her “fall” or the manner in which it occurred, and she of course did not live to give a statement. The evidence rules out the likelihood that she voluntarily jumped from the train.
A ticket collector was in charge of three coaches, including the car on which Mrs. Pomeroy was riding, on the day in question. He testified that his duties were to collect tickets and fares, see to the safety of his passengers, keep his equipment in the best shape possible to his knowledge, and see that passengers were received and discharged properly. As the train left Baltimore, the last stop before Washington, he collected tickets, went through the vestibules of all three cars under his care, and saw no open doors; he inspected his cars again as the train passed through Odenton, Maryland, the halfway point between Baltimore and Washington, and found no open vestibule doors; he again inspected the doors as the train passed through Seabrook, a point approximately 11 1/2 miles from Washington Union Station, and found none open. As he went through some 5 to 9 minutes later2 to announce
The right rear vestibule doors of the Pomeroy car were not defective, and operated smoothly. They were not hard to open, but it took a “lot of physical strength” to slam them firmly and securely against the bulkhead. There were hand rails for passengers in the vestibule and a warning sign stating that passengers are forbidden to loiter on platforms “any time” the train is in motion. At the time in question the train was being operated normally, with no unusual lurches or jerks. There is no evidence that the vestibule was not adequately lighted, or that it was wet, slippery or otherwise unsafe for passengers. There was testimony that, in going around a curve, a train tends to produce centrifugal force and to offset this the outer rail on the moderate curve (near the end of which Mrs. Pomeroy‘s body was found—outside the curve) was raised 3 1/2 inches higher than the inner rail, so that the train banked into the curve.
In ruling on the railroad‘s motion for judgment n. o. v., the trial judge stated that where a railroad provides vestibule cars, it has a duty to see that the vestibule doors remain closed between stations, and that it would be guilty of negligence if it failed to exercise the highest degree of care, consistent with the practical operation of the railroad, to keep them closed at such times.3 He pointed out that there were only 3 inspections of the vestibule doors between Baltimore and Washington prior to the time the ticket collector went through to announce arrival at Washington station, that the collector knew it was not unusual to find doors open between stations, and that there was inevitable movement and activity of passengers as the train was approaching the station. He concluded that in these circumstances reasonable men could differ as to whether the collector was sufficiently vigilant in checking the doors to comply with the degree of care re-
1. To repeat, the railroad owed its passengers the highest degree of care, consistent with practical operation. The District Court stated that under this criterion it is not the railroad‘s obligation to post an employee continuously in every vestibule to see that the doors remained closed between stations, and the plaintiff agrees that this is so. There is no suggestion from anyone that the railroad was required, under this standard, to have other employees, in addition to the ticket collector, in the coaches to assist in watching the vestibules. The plaintiff also in effect concedes that the ticket collector was not required to “dash back and forth between coaches” in an effort to inspect vestibule doors more frequently. He does say that, to comply with the standard of highest practical care, the ticket collector here should have made inspections “more often than once in seven or eight minutes” when he “is not otherwise engaged.” We agree that the number of inspections that may be required at any time must depend upon the collector‘s other duties. Practical operation would dictate this. On the issue here, then, whether under the highest care standard more frequent inspections were reasonably needed during the time involved, an essential inquiry is whether the ticket collector had the opportunity, consistent with the performance of his other duties, to make further inspections of vestibule doors in the 5 to 9 minute interval between the inspection at Seabrook and the trip through the coaches to announce the train‘s approach to Washington station. As the party having the burden of proof, the plaintiff had the obligation, as an element in showing negligence of this sort, to introduce sufficient evidence to permit the conclusion that there was opportunity for further inspections. Cf. Tobin v. Pennsylvania R. Co., 1938, 69 App.D.C. 262, 263, 100 F.2d 435, 436, certiorari denied, 1939, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040.
Since the last stop had been at Baltimore, the ticket collector‘s duty of collecting tickets had been completed before the train reached Seabrook. But the ticket collector had other duties between stops; he was also in charge of equipment and passengers in his three coaches.4 For the most part, the evidence fails to show how the collector spent the 5 to 9 minute interval involved here. It is of course clear that he spent at least a part of that time in moving through his cars to complete the Seabrook inspection trip and to return to the rear vestibule of the Pomeroy car where he found the open doors. It is possible that, as he passed through, he checked equipment, locked restrooms, stopped to answer questions and assist passengers in various ways, and that such duties consumed the available time, but there is no proof that this was so. On the other hand, it is also possible that the collector‘s duties on the coaches did not keep him occupied during this interval and that he was idle some of the time, but there is no evidence that this was so. The record simply is silent on this crucial point. The plaintiff, who it must be remembered had the burden of proof, called the ticket collector as a witness but failed to inquire as to his activities in the pertinent interval of time. As a result, the jury was not given any evidentiary basis to infer or conclude that the collector had sufficient time and opportunity, in the short interval involved, to make a further inspection of vestibule doors. In the absence of any evidence supporting or even suggesting the conclusion that the ticket collector was not occupied with his duties in respect of other passengers and other equipment, the District Court erred in
In other cases similar to this one—where a passenger has been killed as the result of an unwitnessed and unexplained fall through an unexplained open vestibule door—the holding has universally been that the railroad is entitled to a directed verdict or judgment as a matter of law. For example, in Brott v. Texas & Pac. Ry. Co., La.App.1948, 35 So.2d 801, the railroad was absolved of negligence even though the last inspection of vestibule doors had occurred after the last stop, 10 miles away from the place where the body was found. And see Scott v. New York Cent. R. Co., 1926, 216 App.Div. 623, 216 N.Y.S. 163, where all vestibule doors had been closed after the last stop (which a map shows was considerably more than ten miles back) but there appears to have been no evidence of subsequent inspections, and Cannon v. Louisville & N. R. Co., 1949, 252 Ala. 571, 42 So.2d 340, where the evidence was “silent as to whether the doors were closed or open shortly prior to the time Sanders [the passenger] was killed.” 42 So.2d at page 345. Here, the collector inspected the vestibule doors at a point about 9 miles, and about 5 to 9 minutes, before Mrs. Pomeroy fell to her death and again (in connection with announcing arrival at Washington station) about 1 mile after the place where she fell. The elapsed time between these checks could not have exceeded 9 minutes. Certainly it would seem that the standard of care set in the cases just cited, and those cited in footnote 5, was amply met. But it is enough to say that plaintiff has not sustained the burden of offering evidence to support a contrary inference.5 It must be noted, too, that a mere showing of opportunity to inspect is not sufficient in itself to establish a case for the jury; other considerations enter, as will appear in part two of this opinion.
Apparently recognizing that his proof may be thought inadequate to permit a reasonable inference of negligence, the plaintiff urges that a jury‘s verdict need not necessarily be based on evidence but that it may rest on speculation and con-
jecture. He relies chiefly on Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 742, 90 L.Ed. 916. That was a suit by the administrator of a railroad switchman under the Federal Employers’ Liability Act,
“It is no answer to say that the jury‘s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury‘s verdict, the jury is free to discard or disbelieve whatever facts are in-
consistent with its conclusion. And the appellate court‘s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” (Emphasis supplied.)
Thus, the Supreme Court made it abundantly clear that there must be proved facts to support the conclusion reached. See also Myers v. Reading Co., 1947, 331 U.S. 477, 485, 67 S.Ct. 1334, 91 L.Ed. 1615, and the recent Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, at page 526, 76 S.Ct. 608, at page 610, where the Court said:
“Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.” (Emphasis added.)
The Supreme Court has done much in recent years to effectuate the liberal purposes of the FELA, and has on repeated occasions sustained jury verdicts based on the injury or death of railroad employees resulting “in whole or in part” from the railroad‘s negligence, including its failure to provide safe working conditions—as in Lavender and Schulz. But the decisions of the Court in this field should not be understood as making a railroad the insurer of its employees. Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. Much less should they be regarded as making a railroad the insurer of its passengers. Towards them, negligence remains the test, unmodified by FELA or any other special legislation, except perhaps where the plaintiff alleges violation of the safety laws, such as the Safety Appliance Acts,
We do not suggest, of course, that the decisions under the Federal Employers’ Liability Act have no helpful application to other types of suits for negligence. What we do say is that those decisions do not lower the threshold of proof to the level claimed by plaintiff-appellee here. Surely if a railroad employee had disappeared from his train under circumstances similar to those of this case, with no further showing of specific negligence, and with no showing of unsafe working conditions or violation of law, there could be no liability on the part of the railroad. Lavender and Schulz cannot be carried that far, and no consideration of public policy would suggest that they should. This is not a case, such as the Lavender case, where the evidence can be said to give some support to several conflicting possible inferences, a situation where the jury‘s function is apparent. The proof here sheds no light on either possibility: whether the ticket collector was occupied with other duties, or whether he was idle, during a part of the time in question.8 The plaintiff has thus failed to present facts warranting one of the inferences necessary to establish the act of negligence relied on.
As an alternative theory, the plaintiff suggests that the railroad was guilty of another kind of negligence. He asserts that, because the doors were later found by the ticket collector to be swinging freely, the jury could reasonably infer that they were not fully closed at the time of the Seabrook inspection or that there were defects in the latching mechanisms of both halves which caused them to swing open without any human intervention. But the ticket collector‘s testimony is that the doors were closed at Seabrook and were not defective in any respect, and there is no evidence to the contrary.9 The fact that
There is no contention or suggestion that the railroad was guilty of negligence in any other respect. Although the trial court stated [132 F.Supp. 259] that Mrs. Pomeroy “was thrown through the open door by the operation of the train, notwithstanding the banking to offset the effect of centrifugal force” on the curve,11 it did not suggest that it
would be reasonable to find that the railroad operated the train negligently or that it was negligent in not banking the track on the curve to a greater extent. There was no evidence to support a finding of negligence in either respect.
2. It is axiomatic that, to prevail in a negligence case, a plaintiff must prove sufficient facts, not only to warrant an inference of negligence, but also to justify an inference that such negligence was proximately related to the injury or death. Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 32, 64 S.Ct. 409, 88 L.Ed. 520; Hernandez v. Southern Union Gas Co., 10 Cir., 1954, 209 F.2d 606, 610. As we stated in Collins v. District of Columbia, 1931, 60 App.D.C. 100, 102, 48 F.2d 1012, 1014:
“The causal connection between the accident and the negligence of the defendant must not be left to mere conjecture or supposition.”
If we assume here, contrary to what we have concluded above, that the plaintiff has offered sufficient evidence to support a conclusion of negligence, the question
There can be no doubt that if the vestibule doors had not been open Mrs. Pomeroy could not have fallen out, and therefore that the open doors were one of the factors that caused or contributed to her fall from the train. But vestibule doors can be freely opened by passengers as well as by railroad employees, and the fact that these doors were open was not per se negligence on the railroad‘s part. The only act of negligence involved here, assuming that there was negligence, was the failure to make further checks of the vestibule doors in the short interval between the Seabrook inspection and Mrs. Pomeroy‘s fall. To establish the causal relation between this assumed negligence and the death, it must be a reasonable inference from the proof—not a “mere conjecture or supposition“—that such negligence was responsible for the door being open at the time in question. In our view the evidence does not permit such a conclusion.
The vestibule doors in question were closed at Seabrook, 9 miles before the place where Mrs. Pomeroy left the train, and they were obviously open when she fell. We know that they must have been opened by someone, since under the evidence there were no defects which might have caused them to swing open by themselves. The evidence does not indicate who opened the doors in that interval or the length of time they had been open, except that the time could not have exceeded the 5 to 9 minutes it took the train to travel the 9 miles after the Seabrook inspection. The only possibilities are that they were opened by some employee of the railroad other than the collector, or by Mrs. Pomeroy after she entered the vestibule,12 or by some other passen-
ger on the train. If a railroad employee left the doors open or if another passenger opened the doors sufficiently far in advance of the accident that the railroad should have discovered and closed them, the open doors could properly be attributed to its negligence. But if the doors were opened by another passenger not sufficiently far in advance of the accident to give the ticket collector an opportunity to find and close the doors, the open doors could not reasonably be attributed to any negligence on the part of the railroad. A similar conclusion follows if Mrs. Pomeroy herself opened the doors after reaching the vestibule, since the testimony is uncontradicted that she left for the vestibule shortly before the train was due to arrive in Union Station, and there could therefore have been scarcely any time between her opening the door and falling out in which the ticket collector could have had an opportunity to find the open door. See Williams v. New Jersey-New York Transit Co., 2 Cir., 1940, 113 F.2d 649; Merritt v. Interstate Transit Lines, 8 Cir., 1948, 171 F.2d 605, 609.
The causal connection between the open doors and the assumed negligence thus appears in the case of two of these suppositions but not in the case of the other two. But as previously stated, the evidence does not afford any basis at all to select any one of the four possibilities. Only by an arbitrary guess, not based on or warranted by, any record evidence, could it be inferred that the vestibule doors were opened by a railroad employee or by a passenger under circumstances that would attribute the open doors to the railroad‘s failure to inspect the vestibule doors in the interval in question. In these circumstances, the jury could not reasonably infer that the doors were open, and that Mrs. Pomeroy‘s death occurred, as a result of the railroad‘s assumed negligence.13 See Brown v. Capi-
3. The doctrine of res ipsa loquitur does not require a result opposed to the conclusions recited above. When this case was previously before us, we indicated that consideration of the applicability of the doctrine of res ipsa loquitur was to await presentation of the plaintiff‘s evidence. Pomeroy v. Pennsylvania Railroad, 1955, 96 U.S.App.D.C. 128, 223 F.2d 593. After the plaintiff‘s case was in, the District Court ruled that the doctrine did not apply to the facts proved by plaintiff. We agree with the District Court.
In general, the rule is that, where an injury occurs which in the ordinary course of things would not have occurred if the one having control had used proper care, a reasonable basis is afforded, in the absence of any explanation, to attribute the injury to the lack of care on the part of the defendant. See Jesionowski v. Boston & Maine R. Co., 1947, 329 U.S. 452, 456, 67 S.Ct. 401, 91 L.Ed. 416. We have said that negligence may be inferred without additional proof thereof, when (1) the cause of an accident is known, (2) the cause was in the defendant‘s control or right of control, and (3) the cause was unlikely to do harm unless the defendant was negligent. Washington Loan & Trust Co. v. Hickey, 1943, 78 U.S.App.D.C. 59, 61, 137 F.2d 677, 679. Examination of the facts discloses that some of these elements are not present in this case.
The open vestibule doors were unquestionably a contributing or partial cause of Mrs. Pomeroy‘s fall. To that extent—and to that extent only—the cause of Mrs. Pomeroy‘s death is known. The District Court went further, and inferred that centrifugal force was the means immediately causing her fall. But even that, assuming arguendo that the inference is correct, is not enough. The vestibule doors were accessible to all passengers and could be freely opened by anyone, for reasons of both safety and convenience, so that the necessary element of control over the opening of the doors is lacking.14 See Norfolk & Western Ry. Co. v. Estepp, 6 Cir., 1953, 204 F.2d 880, 882. To be sure, an open vestibule door on a moving train is a potentially dangerous thing, but the fact that it was open does not in and of itself presuppose negligence. As has already been shown, in the absence of proof, various equally plausible conjectures, other than the railroad‘s negligence, would account for the open doors. Since the doors may have been open for reasons other than a failure of duty on the railroad‘s part, it cannot be said that the accident would not in the ordinary course have occurred if the railroad had not been negligent.
In the absence of proof of the necessary elements to bring the doctrine of res ipsa loquitur into play, the jury could not properly infer negligence on the part of the railroad, without specific proof thereof, from the mere fact that Mrs. Pomeroy fell through an open vestibule door of a moving train. See Norfolk & Western Ry. Co. v. Estepp, supra; Brott v. Texas & Pac. Ry. Co., La.App.1948, 35 So.2d 801; Brown v. Union Pac. R. Co., 1910, 81 Kan. 701, 106 P. 1001, 29 L.R.A.,N.S., 808.
Reversed and remanded with directions to enter judgment for the defendant.
The jury decided for the appellee because it found that the appellant had negligently failed to make an adequate number of inspections of the vestibule doors and that, as a result of such negligence, decedent had fallen to her death through an open door. My colleagues hold that there was no evidence from which the jury could have found (1) that appellant‘s ticket collector had any opportunity to make any additional inspections, or (2) that, even if there had been such opportunity, the failure to inspect was proximately related to the accident.
Whether there was opportunity for additional inspection and, thus, whether appellant was negligent depends upon what other duties the ticket collector had during the five to nine minute period in question. The collector testified that his duties were “to lift fares and lift tickets and see to the safety of [the] passengers, and keep [the] equipment in the best shape possible to [his] knowledge, and see that passengers are received and discharged properly.” The evidence was, further, that the collection of fares and tickets and the receipt of passengers had already been completed prior to the time here in question and that the discharge of passengers would not occur until arrival at Union Station. Hence, the only duties to be executed by the collector in the crucial period were those which the jury apparently found he had negligently failed to execute, namely, to keep the equipment in the best possible condition (e. g., the doors closed) and see to the safety of his passengers (e. g., prevent the decedent from falling off the train). I think the jury could fairly have inferred, as apparently it did, from the collector‘s testimony as to what his duties were, that he had an idle period during which he could have made another inspection of the doors. If some undescribed other duty had to be or was performed during that interval, the appellant should have introduced some evidence of it.
I cannot agree with the majority that, merely because inferences in conflict with the jury‘s inferences are possible, the jury should not be allowed to decide the facts. “It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences.” Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 35, 64 S.Ct. 409, 412. I would follow Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, 76 S.Ct. 608, and Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740.
In Schulz, a tugboat fireman whose duty called for him to work on four tugboats moored side by side, stepping from one to another, was found drowned in the harbor. There was no evidence as to how he fell into the water, but there was evidence that he was a capable and experienced workman, that three of the tugs were unlighted and the fourth partially lighted, and that there was some ice on the tugs. 350 U.S. at pages 524-525, 76 S.Ct. at page 609. The trial court directed a verdict in favor of the defendant. The Court of Appeals for the Second Circuit, reasoning as do my colleagues in the instant case, affirmed, saying:
“The evidence of such alleged negligence was slight, and perhaps at most only doubtfully sufficient to present a jury question as to defendant‘s breach of duty. But beyond this, there was no showing whatsoever that the alleged conditions were causally related to the accident. Plaintiff never contended that the ice completely covered the barges or that the pier or the barges were entirely shrouded in darkness. We have no way of knowing how or where the accident occurred, and cannot say that it was proximately caused by any default on the part of the defendant.” 1955, 222 F.2d 540, 541.
The Supreme Court reversed because the evidence was sufficient to require sub-
“But the courts below took this case from the jury because of a possibility that Schulz might have fallen on a particular spot where there happened to be no ice, or that he might have fallen from the one boat that was partially illuminated by shore lights. Doubtless the jury could have so found (had the court allowed it to perform its function) but it would not have been compelled to draw such inferences.” 350 U.S. at page 526, 76 S.Ct. at page 610.
In Lavender v. Kurn, a railroad switch-tender was found dead in the switchyard with a wound in his head. The plaintiff‘s theory was that the blow came from a negligently maintained mail hook hanging on the outside of a passing mail car. The evidence indicated that the hook “might pivot” and its end “could thus be swung out to a point 3 to 3 1/2 feet from the rail and about 73 inches above the top of the rail.” 327 U.S. at page 649, 66 S.Ct. at page 742.1 Decedent was too short to be struck by the end of the hook unless he was on an elevation of some kind. There was such an elevation—an “uneven” mound of cinders some parts of which were high enough. Ibid. There was no evidence that decedent had in fact been standing on the mound. But, “If he had been standing on the mound about a foot from the side of the mail car he could have been hit by the end of the mail hook * * * *. His wound was * * * well within the possible range of the mail hook end.” Ibid. The defendant‘s theory was a simpler one—that decedent had been murdered by a blow with a pipe. There were facts in the record “from which it might reasonably be inferred” that the murder theory was correct. Id., 327 U.S. at page 652, 66 S.Ct. at page 744. Indeed, there was even “evidence tending to show” that plain-
tiff‘s theory was “physically and mathematically impossible.” Ibid. The jury‘s verdict for the plaintiff was upset by the Missouri Supreme Court on the ground that, although decedent “‘could have been struck by the mail hook knob if he were standing on the south side of the mound and the mail hook extended out as far as 12 or 14 inches * * * all reasonable minds would agree that it would be mere speculation and conjecture to say that [he] was struck by the mail hook’ and that ‘plaintiff failed to make a submissible case on that question.‘” Id., 327 U.S. at page 651, 66 S.Ct. at page 743.
Like the Supreme Court of Missouri in Lavender, the majority here holds that the jury‘s verdict was based not on rational inferences, but on speculation and conjecture. The evidence, in its view, as easily supports an inference that there was not an opportunity to inspect the doors again as that there was, and an inference that the accident was not caused by the failure to inspect the doors again as that it was. I think what the Supreme Court of the United States said in reversing the Supreme Court of Missouri in Lavender applies equally well to the majority view here:
“It is no answer to say that the jury‘s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury‘s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And
If the evidence in Lavender v. Kurn satisfied the Supreme Court that a jury could infer that the injury resulted from the defendant‘s action or inaction, I do not see how the evidence here can fail to satisfy us. Indeed, in my judgment, this is a stronger case than Lavender v. Kurn. If the jury could reasonably infer, as from the evidence here it clearly could, that the appellee was negligent in not checking the doors more frequently, I think it is a highly probable inference that proper care would have avoided the accident. I concede the physical possibility that some stranger could have followed appellee‘s agent about and opened the door right after it had been checked. In the circumstances, I think the judgment of comparative probability was well left to the jury.
That Lavender and Schulz arose under the Federal Employers’ Liability Act,
ences is greater than in common-law actions,”5 has been criticized as unjustified and merely reflecting “how far the courts have gone in other areas of litigation in restricting, if not denying, the jury‘s orthodox common-law function to draw inferences.” Id. at 490, n. 17. The language of the Court in Lavender and Schulz which I quote in this opinion is not related to the “in whole or in part” provision of the statute. Nor do I find in those cases anything else that makes them inapplicable to cases like the instant one which arise under the common law. I do find that the appellate interference with juries which the Supreme Court condemned in the F.E.L.A. cases was based upon the same ground as the majority‘s decision in the instant case. Id. at 489.
John W. McGUINN, Appellant, v. UNITED STATES of America, Appellee.
No. 13468.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 21, 1956. Decided Dec. 6, 1956.