Skidmore v. Baltimore & OR Co.

• Decision Date: 15 March 1948
• Docket Number: No. 168,Docket 20862.,168
• Citation: 167 F.2d 54
• Parties: SKIDMORE v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

167 F.2d 54 (1948)

SKIDMORE v. BALTIMORE & O. R. CO.

No. 168, Docket 20862.

Circuit Court of Appeals, Second Circuit.

March 15, 1948.

Blank and Convisser, of Brooklyn, N. Y., and Morris S. Borden, of Cleveland, Ohio (William Samuels, of New York City, of counsel), for plaintiff-appellee.

Robert Schwebel, of New York City, and James E. Jones, of White Plains, N. Y. (William C. Combs, of Rochester, N. Y., of counsel), for defendant-appellant.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. The judge properly denied the motion for a directed verdict or a new trial. The evidence was sufficient to justify the jury in concluding (a) that defendant directed plaintiff to work in the manner and at the place in which he worked, and (b) that defendant was negligent, in requiring plaintiff to perform such services when defendant had not cleared the snow and ice under the car. Since the judge properly charged with respect to a deduction for contributory negligence, pursuant to the Act, we must assume that the jury made such a deduction. On the record before us, we cannot say that, after a reasonable deduction, a verdict of $30,000 was excessive (assuming that we have the power to consider that question).

2. Defendant argues that the judge erred in denying its request for a special verdict. We cannot agree.

Undeniably, the verdict affords no satisfactory information about the jury's findings. But almost every general verdict sheds similar or even greater darkness. Such verdicts account for much (not all) of the criticism of the civil jury. Some revaluation of the jury system seems not unjustified in the light of the fact that ours is the only country in the world where it is still highly prized. Lauded as essential to individual liberty and democracy, and imported in the late eighteenth and nineteenth centuries from England and the United States, trial by jury was adopted in criminal cases on the European continent,¹ but subsequently ceased there, in pre-Hitler days, to maintain its popularity.² Nor can that attitude be explained as a symptom of decreased interest in democracy and individualism. For Scotland, surely long a land of liberty-loving individualists, having in the sixteenth century virtually rejected the civil jury,³ re-adopted it in 1815, and, still later, all but gave it up. In England, whence trial by jury came to us, it is now seldom employed in civil suits, has been abandoned in criminal prosecutions other than for major crimes, and even there is used decreasingly.⁴ In the United States, the number of jurywaivers indicates the jury's slowly waning popularity.⁵ But here, especially in the federal courts, the civil jury, in many cases, cannot be eliminated except by constitutional amendments. We must, then, as to some kind of cases,⁶ assume that it will long be with us.

But what many persons regard as its major defects can be mitigated. One device which will help to achieve that end is the special or fact verdict. Those who resent any reform which invades the jury's province should be reassured by the historians who teach that the special verdict is no new-fangled idea, but one almost as old as the jury itself, older indeed than the modern jury. In those early days, Morgan tells us, jurors often successfully insisted upon the right to render such verdicts against the desires of the judges who wanted general verdicts.⁷ To be sure, in this country, during the latter part of the eighteenth and the early part of the nineteenth centuries, the right to return a general verdict was highly esteemed as the jury's prerogative, especially in criminal cases; the judges then instructed the juries that they were to decide both "the law" and the facts, not being bound by the opinion of the trial judge.⁸ Most jurisdictions later repudiated that doctrine.⁹ The courts and legal writers declared that, if juries had the right to ignore the judges' instructions as to the applicable legal rules, the "law" would "become as variable as the prejudices, the inclinations and the passions of men"; "the parties would suffer from an arbitrary decision"; "decisions would depend entirely upon juries uncontrolled by any settled, fixed, legal principle," and would be "according to what the jury in their own opinion suppose the law is or ought to be"; our government" would "cease to be a government of laws and become a government of men"; "jurors would become not only judges but legislators as well"; the "law" would "be as fluctuating and uncertain as the diverse opinions of different juries in regard to it"; jurors would be "superior to the national legislature, and its laws * * * subject to their control" so that a "law of Congress" would "be in operation in one state and not in another."¹⁰

Yet no amount of brave talk can do away with the fact that, when a jury returns an ordinary general verdict, it usually has the power utterly to ignore what the judge instructs it concerning the substantive legal rules, a power which, because generally it cannot be controlled,¹¹ is indistinguishable for all practical purposes, from a "right."¹² Practically, then, for all we may say about the jury's duty when it renders a verdict, we now do have the very conditions which we were warned would result if the jury had the right to decide legal propositions: cases are often decided "according to what the jury suppose the law is or ought to be"; the "law," when juries sit, is "as fluctuating and uncertain as the diverse opinion of different juries in regard to it"; and often jurors are "not only judges but legislatures as well." Indeed, some devotees of the jury system praise it precisely because, they say, juries, by means of general verdicts, can and often do nullify those substantive legal rules they dislike,¹³ thus becoming ad hoc ephemeral (un-elected) legislatures¹⁴ (a state of affairs singularly neglected by most writers on jurisprudence,^14a who would do well to modify their ideas by recognizing what might be called "juriesprudence"). Surprisingly, that sort of defense of the general verdict is not seldom voiced by lawyers who, in the next breath, demand strict adherence to the legal precedents.^14b

"Competent observers," writes Judge Rossman, "who have interviewed the jurors in scores of jury trials, declare that, in many cases where the general verdict was employed, principal issues received no consideration whatever from the jury.^14c The general verdict, then, has some strange characteristics. As Sunderland puts it.¹⁵ "The peculiarity of the general verdict is the merger into a single indivisible residuum of all matters, however numerous, whether of law or fact. It is a compound made by the jury which is incapable of being broken up into its constituent parts. No judicial reagents exist for either a qualitative or a quantitive analysis. The law supplies the means for determining neither what facts were found, nor what principles of law were applied, nor how the application was made. There are therefore three unknown elements which enter into the general verdict; (a) the facts; (b) the law; (c) the application of the law to the facts. And it is clear that the verdict is liable to three sources of error, corresponding to these three elements. It is also clear that if error does occur in any of these matters it cannot be discovered, for the constituents of the compound cannot be ascertained. No one but the jurors can tell what was put into it and the jurors will not be heard to say. The general verdict is as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi. Both stand on the same foundation — a presumption of wisdom. The court protects the jury from all investigation and inquiry as fully as the temple authorities protected the priestess who spoke to the supplient votary at the shrine. It is quite probable that the law is wise in not permitting jurors to testify as to how they compounded their verdict, for all stability would disappear if such inquiries were open.^15a * * * As to the second element in the general verdict, the law, it is a matter upon which the jury is necessarily ignorant. The jurors are taken from the body of the county, and it is safe to say that the last man who would be called or allowed to sit would be a lawyer. They are second-hand dealers in law, and must get it from the judge. They can supply nothing themselves; they are a mere conduit pipe through which the court supplies the law that goes into the general verdict. But while the jury can contribute nothing of value so far as the law is concerned, it has infinite capacity for mischief, for twelve men can easily misunderstand more law in a minute than the judge can explain in an hour. Indeed, can anything be more fatuous than the expectation that the law which the judge so carefully, learnedly and laboriously expounds to the laymen in the jury box become operative in their minds in its true form? One who has never studied a science cannot understand or appreciate its intricacies, and the law is no exception to this rule. The very theory of the jury and its general verdict is thus predicated upon a premise which makes practically certain an imperfect or erroneous view of the principles of law which are to be compounded into the verdict. The instructions upon the law given by the court to the jury are an effort to give, in the space of a few minutes, a legal education to twelve laymen upon the branch of the law involved in the case. Law cannot be taught in any such way. As to this element, accordingly, the general verdict is almost necessarily a failure. As to the third element in the general verdict — the application of the law to the facts, we find the same difficuly as in the case of the first element — a merging of the law into the verdict in such a way that it is impossible to tell how or whether the jury applied the law. They may have applied it in a wholly wrong way, or they may...