Baltimore & Ohio Railroad Company v. Hughes

• Decision Date: 05 May 1960
• Docket Number: No. 14020.,14020.
• Citation: 278 F.2d 324
• Parties: BALTIMORE & OHIO RAILROAD COMPANY, Appellant, v. Eugene L. HUGHES, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

278 F.2d 324 (1960)

BALTIMORE & OHIO RAILROAD COMPANY, Appellant, v. Eugene L. HUGHES, Appellee.

No. 14020.

United States Court of Appeals Sixth Circuit.

May 5, 1960.

Philip J. Schneider, Cincinnati, Ohio (John M. O'Mara, Cincinnati, Ohio, of counsel, Waite, Schindel, Bayless & Schneider, Cincinnati, Ohio, on the brief), for appellant.

Thomas H. Mongan, Cincinnati, Ohio (Robert O. Leming, Cincinnati, Ohio, of counsel, Rolf, Dolle, Rueger, Mongan & Leming, Cincinnati, Ohio, on the brief), for appellee.

Before SHACKELFORD MILLER, Jr., and CECIL, Circuit Judges, HOLLAND, Senior District Judge.

CECIL, Circuit Judge.

The plaintiff-appellee, Eugene L. Hughes, recovered a judgment in the District Court, in the sum of $30,000, upon a verdict against the defendant-appellant, the Baltimore and Ohio Railroad Company. The parties will be hereinafter referred to as plaintiff and defendant.

The defendant appealed on the ground that there was insufficient evidence to warrant submitting the case to the jury.

The plaintiff was employed by the Kroger Company in its shipping department and at about 10 o'clock, on the morning of January 18, 1956, was directed by his superior to take a fellow employee, Edward Ruebel, and load a freight car with candy. The empty freight car, C. G. W. 89412, at the request of the Kroger Company, had been placed on the track adjacent to its warehouse, at 1212 State Avenue, in Cincinnati, on the night of January 17. There was a loading dock at the warehouse, the height of which was about level with the floor of the car.

When the plaintiff and his helper reached the car, they found the door open about eighteen inches. While attempting to open the door, preparatory to loading the car, the door became detached, fell from the car, and severely injured the plaintiff.

Only the two Kroger employees were present and in their language the accident happened as follows: Hughes on the ground between the car and the warehouse, "I put my left hand on the end, up next to the latch, and my right hand into the pushing handle. * * * I pushed and, after I pushed, the car door moved about — maybe five inches at the most, and it came off, completely disengaged and fell on me." Describing what happened he said: "Well, it happened — it just came off, and it pinned me to the wall — to the wall. * * * Yes, sir. It came out and down at the bottom. The bottom came out. * * * I was facing the car door."

Ruebel who was in the car: "I could tilt the door, and I don't know what happened after that. It hit me in the leg, and I tried to duck across the opening and jumped across. It fell down there and got my other leg as I was part way across. So I do not know exactly how it fell. * * * He (Hughes) was between the building and the car, and he was working the lever or pulling on the door."

It is alleged in the amended petition that the defendant had sole control of the freight car in question and that it negligently permitted the heavy steel door to become loose and disengaged from its lock and track, with nothing to hold it in place; that it failed to make any inspection, or proper inspection, to ascertain the dangerous and unsafe condition, and remedy it, and that it failed to warn of the unsafe condition, knowing that the door had to be opened in order to place freight in the car.

The gravamen of these specifications of negligence is that the door was defective, which caused it to fall.

Charging that the defendant had sole control of the freight car, counsel for the plaintiff tried the case on the theory that the doctrine of res ipsa loquitur was applicable. The trial judge ruled out this principle of law, but, yet, it so permeated the trial and is so injected into this appeal that we cannot avoid discussing it. Repeatedly, counsel for the plaintiff, in his argument to us, on request to state the acts of negligence, said: "It didn't work properly." The trial judge, in considering a motion at the close of all the testimony, said: "The only thing about the case is, as I see it, that the two were trying to push the door open and they say for unexplained reasons it fell off." (p. 287 tr.) This indicates that the trial judge was thinking in terms of the res ipsa doctrine. We are not favored with the trial judge's charge and cannot tell whether he followed through on this theory, or if he required the jury to find some specific act of negligence.

This is a diversity case and under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, Ohio law is applicable.

In the most recent pronouncement of the Supreme Court of Ohio (1954) the court reaffirmed the doctrine "that ordinarily there must be custody, control and management of an injurycausing instrumentality by a party in order to render applicable against him the rule of res ipsa loquitur" and added "that before the rule may be applicable against a party out of such custody, control and management, there must be a complete showing that the instrumentality could not have been mishandled or tampered with between the time of its leaving the custody of the one sought to be charged and the time of the accident causing the injury." Koktavy v. United Fireworks Mfg. Co., 160 Ohio St. 461, 471, 117 N.E.2d 16, 21.

In Hiell v. Golco Oil Co., 137 Ohio St. 180, 182, 28 N.E.2d 561, 562, the court adopted the rule as stated in 9 Wigmore on Evidence (3 Ed.), 380, Section 2509: "(1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or...