Baltimore & OR Co. v. Tindall, 4439.

• Decision Date: 09 February 1931
• Docket Number: No. 4439.,4439.
• Citation: 47 F.2d 19
• Parties: BALTIMORE & O. R. CO. v. TINDALL.
• Court: U.S. Court of Appeals — Seventh Circuit

47 F.2d 19 (1931)

BALTIMORE & O. R. CO. v. TINDALL.

No. 4439.

Circuit Court of Appeals, Seventh Circuit.

February 9, 1931.

H. W. Mountz, of Garrett, Ind., and Charles D. Clark and Henry D. Sheean, both of Chicago, Ill., for appellant.

Edward B. Henslee and R. C. Parrish, both of Fort Wayne, Ind., for appellee.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

EVANS, Circuit Judge.

Accepting the testimony most favorable to appellee, as we are required to do when reviewing the refusal of the trial court to direct a verdict, the following facts are disclosed:

Tindall was a front brakeman working on one of appellant's freight trains engaged in interstate commerce, and he had been so employed for some time. As such employee, it was his duty to ride in the engine cab between stations. A seat was provided for him, the construction of which is shown by the drawing:

On October 29, 1927, while appellee was so riding between two stations, the seat gave way and he fell or slid to the floor of the cab. Appellee testified that the seat was defective in that its regular support (c) was gone and in its place was a wooden stick extending from under the seat to a piece of coal on the floor. When he fell, Tindall had his arm out the window. He stated that he fell "with his left hip down under the side of the seat and his left arm out of the window."

Conceding without deciding that the injury happened in the manner charged, the controversy on this appeal is limited to an ascertainment of whether appellee's alleged injuries resulted from this accident. Appellant disputed (a) appellee's asserted physical condition — that of total and permanent physical disability — and contended further (b) if permanent disability existed, it could not be traced to the fall from the seat. Appellee argued that on both issues a jury question was presented by the evidence.

Respecting the first issue (a) it hardly seems necessary to set forth the evidence. We agree with appellee's counsel that there was evidence to support a finding that after the accident appellee was at times wholly disabled from doing certain kinds of work.

The real controversy, therefore, was over issue (b). Was there evidentiary support for a verdict finding that appellant's negligence was the proximate cause of the injury for which damages were awarded?

The jury must have found that appellee was seriously and permanently injured, for it fixed his damages at $12,500. It must also have found that such serious and permanent injury was the result of the accident. This last statement is made because it is inconceivable that an award of $12,500 would have been made except on the theory that serious and permanent disability resulted from appellee's slipping to the floor of the cab when the seat gave way.

The rule governing the quantum of proof necessary to warrant submission to the jury applies to the issue of proximate cause as well as to that of negligence. New York Central R. R. v. Ambrose, 280 U. S. 486, 50 S. Ct. 198, 74 L. Ed. 562.

A most thorough examination of the testimony has resulted in the conclusion that the jury was not justified in finding that such injuries were traceable to the fall. Such a verdict, we think, rests solely upon speculation.

Supporting this conclusion is the uncontradicted testimony that appellee never complained of such injuries to any one from the date of the accident, October 29, 1927, until October 19, 1929, when this action was begun. He made no mention either of the seat giving way or of his fall or of any injury resulting therefrom, to the fireman, to the brakeman, or to the conductor, on the day of the accident or at any time thereafter. He performed his duties as brakeman during the remainder of the trip. He "went out on his run" the next day and again performed his duties as a brakeman and he continued to do so for about sixty days. When, sixty days after the accident, he consulted his local physician, he made no mention of this accident as a possible explanation of the rheumatic pains from which he then suffered. In July, 1928, he consulted another physician, but made no mention of this accident. About four months later he again...