Cardwell v. Chesapeake & Ohio Ry. Co., 73-1904

• Citation: 504 F.2d 444
• Decision Date: 17 October 1974
• Docket Number: No. 73-1904,73-1904
• Parties: Helen S. CARDWELL, Administratrix of the Estate of Winfred M. Cardwell, Deceased, Plaintiff-Appellee, v. The CHESAPEAKE & OHIO RAILWAY CO., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 444

504 F.2d 444

Helen S. CARDWELL, Administratrix of the Estate of Winfred

M. Cardwell, Deceased, Plaintiff-Appellee, v. The CHESAPEAKE & OHIO RAILWAY CO., Defendant-Appellant.

No. 73-1904.

United States Court of Appeals, Sixth Circuit.

Decided Oct. 17, 1974.

James L. O'Connell, Cincinnati, Ohio, for defendant-appellant.

Philip J. Schneider, Waite, Schindel, Bayless & Schneider, Cincinnati, Ohio, Wm. H. DeParcq, O. C. Adamson, II, DeParcq, Anderson, Perl & Hunegs, Minneapolis, Minn., for a plaintiff-appellee.

Before EDWARDS, McCREE and MILLER, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from an order overruling a reserved motion for a directed verdict in a Federal Employer's Liability Act (FELA) action, 45 U.S.C. 51 et seq., to recover damages for injury and for wrongful death. The jury awarded $10,500, adjusted for contributory negligence, on the claim for injury, but was unable to decide whether death was caused by the injury. This appeal requires us to decide whether there was sufficient competent evidence of the causal relationship between the injury and death for the submission of this claim to the jury. We determine that there was.

On August 14, 1969, Winfred M. Cardwell filed a complaint under the FELA alleging that he sustained a back injury while he was employed at defendant's Huntington, West Virginia Diesel Shops on June 27, 1969 when he attempted to close a locomotive cab door that had been left hanging on only its right upper hinge. After the answer was filed and some depositions were taken, a suggestion of plaintiff's death was filed and Cardwell's widow, who had been appointed administratrix of his estate, filed an amended complaint August 6, 1971 in which she alleged that Cardwell's death on January 25, 1971 was the result of the accident pleaded in the original complaint.

In a trial that extended over parts of four days, after decision on a motion for a directed verdict was reserved and defendant submitted its proofs, the case was submitted to the jury upon instructions requiring separate verdicts on the claim for injury and lost wages during Cardwell's lifetime and a verdict on the death claim. The jury found that the accident on June 22, 1969 resulted in part from the negligence of both Cardwell and the railroad and assessed damages at $10,500. It advised the court that it could not agree whether Cardwell's death resulted from defendant's negligence.

Appellant filed a motion for judgment notwithstanding the absence of a verdict on the wrongful death claim and a motion for judgment n.o.v. or for a new trial on the claim for injury. On May 25, 1973, the district court entered judgment on the verdict of $10,500 and overruled both motions, but certified, at defendant's request that 'Whether or not there was sufficient medical evidence of the causal relationship between the accident claimed to have been sustained by the plaintiff's decedent and the death of the said decedent to warrant submission of such issue to the jury' involved 'a controlling question of law as to which there is substantial ground for difference of opinion' and that an immediate appeal from the order overruling the motion for judgment notwithstanding the absence of a verdict 'may materially advance the ultimate termination of this litigation.'

Our Court, one judge dissenting, permitted the appeal to be taken in an order entered July 6, 1973.

28 U.S.C. 1292(b) provides:

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: . . ..

This provision applies to interlocutory orders that are not otherwise appealable of right and requires the existence of four elements: (1) The question involved must be one of 'law'; (2) it must be 'controlling'; (3) there must be substantial ground for 'difference of opinion' about it; and (4) an immediate appeal must 'materially advance the ultimate termination of the litigation.'

In considering an application from a defendant in a diversity automobile action, we were asked to review under 28 U.S.C. 1292(b) the grant of summary judgment determining that a Michigan statute requiring notice within sixty days of injuries caused by defective roads does not apply to actions for wrongful death. We quoted with approval this statement from Milbert v. Bison Laboratories, 260 F.2d 431, 433 (3rd Cir. 1958.)

'It is quite apparent from the legislative history of the Act of September 2, 1958 that Congress intended that section 1292(b) should be sparingly applied. It is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation.' (Maris, J.)

We observed further in denying the request to permit the appeal:

This statute was not intended to authorize interlocutory appeals in ordinary suits for personal injuries or wrongful death that can be tried and disposed of on their merits in a few days. Haraburda v. United States Steel Corp., 187 F.Supp. 86, 94 (W.D. Mich).

The granting of an interlocutory appeal in the present case would not 'materially advance the ultimate termination of the litigation.' Many months would be required before the case would be reached for argument on the congested docket of this court. If we grant the appeal and then should affirm the order of the district court based upon the opinion published in 236 F.Supp. 677, the case then would be remanded to the district court for trial on its merits.

On the other hand, it would appear that only a few days would be required for a jury trial and final disposition of the case in the district court. This procedure, which would avoid a piecemeal appeal, is preferable except in the extraordinary type of case contemplated by 1292(b). (Phillips, J.) Krause v. Board of County...