Gallick v. Baltimore and Ohio Railroad Company, 76

• Decision Date: 18 February 1963
• Docket Number: No. 76,76
• Citation: 9 L.Ed.2d 618,372 U.S. 108,83 S.Ct. 659
• Parties: James GALLICK, Petitioner, v. The BALTIMORE AND OHIO RAILROAD COMPANY
• Court: U.S. Supreme Court

372 U.S. 108

83 S.Ct. 659

9 L.Ed.2d 618

James GALLICK, Petitioner,

v The BALTIMORE AND OHIO RAILROAD COMPANY.

No. 76.

Argued Dec. 10, 1962.

Decided Feb. 18, 1963.

Marshall I. Nurenberg, Cleveland, Ohio, for petitioner.

Alexander H. Hadden, for respondent.

Mr. Justice WHITE delivered the opinion of the Court.

Upon a special verdict of the jury, the Common Pleas Court of Cuyahoga County, Ohio, entered judgment awarding damages to petitioner in this Federal Employers' Liability Act¹ suit. The Court of Appeals reversed, 173 N.E.2d 382, and the Ohio Supreme Court refused further appellate review, 172 Ohio St. 488, 178 N.E.2d 597, making the decision of the intermediate appellate court the final judgment rendered by the state courts. This Court granted certiorari, 369 U.S. 848, 82 S.Ct. 935, 8 L.Ed.2d 8, to consider the question whether the decision below improperly invaded the jury's function. We have concluded that the decision below is erroneous and must be reversed.

Petitioner was a spotting crew foreman working on or about August 10, 1954, along the respondent railroad's right of way in the Cuyahoga River 'flats' section of Cleveland, Ohio. At the particular stretch of roadbed where petitioner was working on that afternoon, there had been for many years a pool of stagnant water, in and about which were dead and decayed rats and pigeons, or portions thereof. Insects had been seen on, over, and about this stagnant pool, and the evidence showed, as the Court of Appeals stated, that respondent had long been aware of the fetid condition of this pool. 173 N.E.2d, at 383. While he was temporarily working near the pool, petitioner experienced a bite on his left leg just above the knee. He grasped the spot with his hand and felt an object under his trousers which seemed to be a large insect and which, when he crushed it, dropped out of his trouser leg. The wound subsequently became infected. The infection failed to respond to medical treatment, and worsened progressively until it spread throughout petitioner's body, creating pus-forming lesions and eventually necessitating the amputation of both his legs. None of the doctors who treated and studied petitioner's case could explain the etiology of his present condition, although some of them diagnosed or characterized it as 'pyodermagangrenosa, secondary to insect bite.' See id., at 384.

The Federal Employers' Liability Act makes railroads liable in damages to any employee suffering 'injury or death resulting in whole or in part from the negligence of * * * (the) carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * roadbed * * * or other equipment.' 45 U.S.C. § 51. In his complaint petitioner alleged respondent's negligence both in permitting the stagnant pool to accumulate dead vermin and attract insects, and in its furnishing a defective and unsafe place for petitioner's work. The respondent denied any negligence and contended that if petitioner's serious injuries resulted from an insect bite sustained while working on railroad property, such consequences 'were beyond the realm of reasonable probability or foreseeability, with the result that no duty arose' to exercise due care to protect petitioner 'from any such risk.' 173 N.E.2d at 384.

After a lengthy trial, the court, pursuant to the State's special verdict statute, Ohio Rev.Code, § 2315.15, under which no general verdict is rendered by the jury, submitted some two dozen interrogatories to the jury and charged them as to what it deemed the applicable law of negligence. The special verdict of the jury, to the extent that it is relevant here, follows (answers italicized):

'10. On approximately August 10, 1954, was plaintiff bitten by an insect? Yes.

'13. Did the defendant B & O, provide the plaintiff Mr. Gallick a reasonably safe place to work under the facts and circumstances existing at the time? Jury can't decide on this question.

'14. (D)id the defendant B & O know that by permitting the accumulation of said pool of stagnant water, dead pigeons, dead rats, bugs, and vermin would be attracted to said area? Yes.

'15. If the answer to 14 is yes, did the defendant B & O know that its employees would have to work in this area? Yes.

'16. Was the defendant negligent in one or more of the particulars alleged in the petition? Yes.

'17. If the answer to Question 16 is yes, indicate in the words of the petition the acts or omissions which constitute defendant's negligence. There existed a pool of stagnant water on the premises in the possession of and under the control of defendant into which was accumulated dead pigeons, rats, and various forms of bugs and vermin.

'18. Was the illness or diseases from which Mr. Gallick now suffers caused in whole or in part by an insect bite sustained by him on defendant B & O's premises? Yes.

'19. Were the injuries to the plaintiff proximately caused * * * by * * * the acts or omissions of the defendant? Yes.

'20. (W)as there any reason for the defendant B & O to anticipate that such (maintaining stagnant, infested pool) would or might probably result in a mishap or an injury? No.

'21. Is there a proximate causal relationship to the stagnant water, the dead rats, the dead pigeons, the insect bite, and the present physical condition of the plaintiff? Yes.

'22. If the answer to Question 21 is yes, was it within the realm of reasonable probability or foreseeability of the defendant B & O to appreciate this proximate causal relationship between the stagnant water, the dead rats, the dead pigeons, the insect bite and the present physical condition of the plaintiff? No.'

The trial court entered judgment for petitioner and respondent appealed, assigning as error various trial rulings, none of which the Court of Appeals found 'prejudicial to the rights of the appellant,' except the fundamental one, in the court's view, that judgment for respondent should have been entered on a directed verdict because the trial evidence was insufficient to support a judgment for petitioner.² The court said that the evidence showed that an insect bit petitioner and caused his severe injuries. It also found that 'to maintain for a period of years a stagnant, vermin-infested pool of water on and over which insects gather,' on property where the railroad's employees were required to work 'could furnish the gravamen of an offense (sic) under the Federal Employers' Liability Act.' 173 N.E.2d, at 387. The court emphasized, however, that there was no 'direct evidence that the existence of the unidentified bug at the time and place had any connection with the stagnant and infested pool,' or had become infected by the pool with the substance that caused petitioner's infection, evidence which would negative the alternative possibility that the insect had emanated from 'the nearby putrid mouth of the Cuyahoga River, or from weeds, or unsanitary places situated on property not owned or controlled by the railroad.' The Court of Appeals therefore deemed the evidence merely 'a series of guesses and speculations * * * a chain of causation too tenuous * * * to support a conclusion of liability.' Id., at 388. '(W)e have a chain of possibilities that the negligence of the defendant might have shared in subjecting the plaintiff to damage and injury, but the proof of a legal causal connection between the negligence and the damage falls short of that required for the consideration of a jury.' Ibid. Accordingly, it reversed the judgment of the Court of Common Pleas and entered final judgment for respondent.

I.

We think that the Court of Appeals improperly invaded the function and province of the jury in this Federal Employers' Liability Act case. According to the Court of Appeals, the break in the causal chain that turned it into a mere 'series of guesses and speculations' was the want of evidence from which the jury could properly conclude that respondent's fetid pool had had something to do with the insect that bit petitioner. The only question was whether or not the insect was from or had been attracted by the pool. We hold that the record shows sufficient evidence to warrant the jury's conclusion that petitioner's injuries were caused by the acts or omissions of respondent.

As the Court of Appeals stated, 'insects were seen on, over and about this stagnant pool.' According to petitioner's undisputed testimony, he stood near the pool for about a half a minute; then he started to walk away and was bitten on the leg after he took a few steps, perhaps one or two seconds later. Petitioner also testified, on cross-examination, that he had at times seen insects of about the same size as that which bit him crawling over the dead rats and pigeons in the stagnant pool. And on cross-examination by respondent two medical witnesses testified that stagnant, rat-infested pools breed and attract insects.³ Moreover, the jury specifically found that the pool accumulated and attracted bugs and vermin.

The Court of Appeals erred in demanding either 'direct evidence that the existence of the unidentified bug at the time and place had any connection with the stagnant and infested pool' or else more substantial circumstantial evidence than that adduced here 'that the pool created conditions and influences which helped to incubate of furnish an environment for the bug * * * or that the insect, having traveled from other areas, became contaminated or infected by the pool.' 173 N.E.2d at 388. Under the ruling cases in this Court the evidence present was sufficient to raise an issue for the jury's determination as to whether the insect emanated from the pool.

In Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, one of the leading cases, the Court granted certiorari 'because of important problems as to petitioner's right to a jury determination of the issue of causation.' There was no direct evidence of how the decedent was killed. There was evidence that the respondent...