405 F.2d 1061 (4th Cir. 1969), 12140, Wratchford v. S. J. Groves & Sons Co.

Docket Nº:12140.
Citation:405 F.2d 1061
Party Name:Treva M. WRATCHFORD, and Thomas N. Berry, Conservators of the Property and Estate of Richard P. Wratchford, Appellants, v. S. J. GROVES & SONS COMPANY, a body corporate, and Dale W. Miller, individually and trading as Miller & Greenland, Appellees.
Case Date:January 08, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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405 F.2d 1061 (4th Cir. 1969)

Treva M. WRATCHFORD, and Thomas N. Berry, Conservators of the Property and Estate of Richard P. Wratchford, Appellants,


S. J. GROVES & SONS COMPANY, a body corporate, and Dale W. Miller, individually and trading as Miller & Greenland, Appellees.

No. 12140.

United States Court of Appeals, Fourth Circuit.

January 8, 1969

Argued June 21, 1968.

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Paul Berman, Baltimore, Md., and Thomas N. Berry, Cumberland, Md. (Melvin J. Sykes, Baltimore, Md., on brief) for appellants.

Alva P. Weaver, III, and John F. King, Baltimore, Md. (Anderson, Coe & King and Charles B. Keenan, Jr., Baltimore, Md., on brief) for appellees.

Before HAYNSWORTH, Chief Judge, and BOREMAN and CRAVEN, Circuit judges.

HAYNSWORTH, Chief Judge:

The principal question presented is whether, in the diversity jurisdiction, federal or state standards are to be applied by the Court in determining the sufficiency of the evidence to go to the We hold that the federal standard applies, and that there was sufficient evidence on the question of proximate causation to go to the jury.

Preliminarily, we are met with the objection that the point is not properly before us, because at the time of the trial everyone assumed that the Maryland standard applied. This was understood by the District Court to require that when the evidence shows that the injury could have occurred with equal probability in each of two ways, only one of which would be laid to the defendants' responsibility, it is the duty of the Court to direct a verdict for the defendants. 1 It was on that basis that the District Court directed a verdict in this case, over the protestations of counsel for the plaintiffs that, within the framework of the Maryland rule, the testimony showed that the injury more probably was the result of the defendant's want of due care. There was no suggestion that a federal standard was applicable.

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After the filing of a notice of appeal, however, the plaintiffs filed a motion, apparently under Rule 60(b) of the Federal Rules of Civil Procedure, contending for the first time that a federal standard controlled, and that it was more liberal from the plaintiffs' viewpoint than the Maryland rule. The District Court did not treat the motion as inappropriate under Rule 60(b). Instead, it had the question fully briefed and argued, after which the motion was denied on the merits. In a memorandum opinion, the District Court reached the conclusion that in the Fourth Circuit a federal standard is to be applied. It also expressed the opinion that, under the applicable rule in this Circuit, there was grave doubt as to the propriety of a direction of a verdict in this case under the federal rule as enunciated in the more recent cases in this Circuit. Despite such doubts, it denied the motion on the merits, with an expression of the appropriateness of this case for clarification of the matter on appeal.

No appeal was taken from the denial of the motion, so that, in a technical sense, it is not before us. The fact, however, that the question of the District called to the attention of the District Judge and the fact that he chose to consider the matter on the merits and disposed of it with a statement carrying a clear implication of the hope and expectation of appellate consideration of the matter in this case, combine to strongly influence us to notice the claimed error and to reach the merits of the question.

Ordinarily, of course, a party should not be allowed to change the theory of his case after trial, 2 but when fundamental rights are involved appellate consideration is appropriate, despite inconsistency in the appellant's position. 3 The right to a jury trial and our traditional faith in the jury's capacity to resolve factual disputes is basic to our federal system of judicial administration.

Because of the nature of the question, in light of the post trial proceedings and the District Court's memorandum, we are constrained to reach the merits.

On a cold winter morning Richard P. Wratchford, the plaintiffs' conservatee, was found at the bottom of an open highway drainage hole. His skull had been fractured and his body was almost frozen. The cold did not aggravate the injury, however, because it tended to minimize the brain damage. Nevertheless, the brain damage was so extensive that Wratchford suffers from retrograde amnesia, recalls nothing of the circumstances of the injury, and is apparently totally incapacitated.

Wratchford had left a union meeting in Cumberland, Maryland, at approximately 10:30 o'clock the night before. Apparently, he proceeded eastward on U.S. Route 40 in the direction of his home, for his car was observed by a patrolman at approximately 11:00 o'clock P.M. parked on the right hand shoulder of the east bound lanes of that road, some five hundred feet west of Wratchford's home. His wife testified that she had requested him to pick up some groceries on his way home, and the articles he wished could be purchased in the office of a motel on the north side of Route 40, opposite where Wratchford's automobile was found. The drainage hole in which he was discovered the next morning and its extended flume were approximately on a line between the motel office and his parked automobile. After his removal from the hole, his car keys were discovered lying at the bottom of the

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hole. It is, therefore, clearly inferable that Wratchford parked where he did on the shoulder of the west bound lanes and left his car with the purpose of walking across the east bound lanes, the median strip and the west bound lanes to the motel in order to make his purchases, and that he sustained his injury while in that endeavor.

Extensive construction work had been underway on Route 40 to convert it from an old two-lane road, one lane in each direction, to a four-lane road, with two lanes in each direction, the east and west lanes being separated by a median strip. The defendant, S. J. Groves & Sons Company, was the general contractor, while the defendant, miller, was responsible for the construction of the drainage inlets. At the scene of Wratchford's injury, Miller had constructed a 'J' inlet in the median strip. It consisted of a concrete flume some twenty-five feet long to carry water into a drainage hole approximately four feet long in an east-west direction parallel to the lanes of traffic, two feet wide and approximately four feet deep. Angle braces had been installed near the top of the hole to form a channel to support a grate. The grate, which, under the contract, was to have been supplied by Groves and installed by Miller, had not been placed. The grate described by the specifications was not one designed for pedestrian traffic, for the bars were placed so widely that a man's foot could pass between them, but, had it been in place, it would not have permitted the leg of a normal adult male to pass into the space between the bars much beyond the knee.

The plaintiffs' theory, of course, is that the defendants were negligent in not having placed the grating, which their contract required, or barricaded the hole to warn potential pedestrians of the presence of the open, unprotected hole. 4

On the question of causation, the plaintiffs' theory was that Wratchford stepped into the unprotected hole and sustained the fracture of the left, rear portion of his skull in the resulting fall.

The defendants contended that the circumstances gave rise to an inference of equal probability that Wratchford was crossing the median strip at a point somewhat east of the hole, slipped on accumulated ice and snow, which was present in the flume, and slid, slipped or crawled, after his injury, into the hole. Since the District Judge was of the opinion that the injury could have been sustained either way, the one being no more probable than the other, and since, if he sustained his injury on the flume before getting into the hole, the absence of the grate would not have been a proximate cause of the injury, he directed a verdict for the defendants under his understanding of the Maryland rule.

Now, as is generally recognized, the question of the applicability of the Erie principle 5 cannot always be resolved by discursive analysis of the rule in question in terms of its being 'substantive' or 'procedural.' Nor is Guaranty Trust's 6'outcome-determinative' test the appropriate one in selecting the governing rule for the distribution of functions between court and jury. 7 The general approach in Byrd v. Blue Ridge Rural Electric Corp. points to the appropriateness of the use of the federal standard.

The Supreme Court has left undecided the question of the standard to

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determine the sufficiency of the evidence to go to the jury in a diversity case brought in the federal court. 8 What was said in footnote 15 of the Byrd opinion (356 U.S. 525-540, 78 S.Ct. 893, 2 L.Ed.2d 953) was not a final decision of this question. This is indicated by an analysis of Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284, which was distinguished in that footnote, for in Stoner the trial was to the court without a jury. It is made clear by the Supreme Court's later explicit reservations of the question in Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 and Mercer v. Theriot, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206. The Courts of Appeals are in conflict on the question, 9 but this Court has consistently held that a federal standard is to be applied. 10

In Byrd, the Supreme...

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