Baltimore & OR Co. v. O'NEILL

• Decision Date: 02 March 1954
• Docket Number: No. 11770.,11770.
• Citation: 211 F.2d 190
• Parties: BALTIMORE & O. R. CO. v. O'NEILL.
• Court: U.S. Court of Appeals — Sixth Circuit

211 F.2d 190 (1954)

BALTIMORE & O. R. CO. v. O'NEILL.

No. 11770.

United States Court of Appeals Sixth Circuit.

March 2, 1954.

COPYRIGHT MATERIAL OMITTED

Arvin J. Alexander, Columbus, Ohio, Robert F. Ebinger, Columbus, Ohio, on brief; Alexander, Ebinger & Wenger, Columbus, Ohio, of counsel, for appellant.

Alex S. Dombey, Columbus, Ohio, C. Richard Grieser, Columbus, Ohio, on brief; Herbert & Dombey, Columbus, Ohio, of counsel, for appellee.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The appellee, Francis O'Neill, recovered a judgment in the district court against the appellant, Baltimore and Ohio Railroad Company, in the amount of $22,000 under the provisions of the Federal Employers' Liability Act, Sections 51-60, Title 45, U.S.C.A., for damages suffered in an accident on June 22, 1948, while working for the appellant as a boilermaker in its locomotive maintenance and repair shop at Newark, Ohio. The jury returned a verdict for the appellee in the amount of $32,000, but the trial judge ruled that he would sustain appellant's motion for a new trial unless the appellee filed his remittitur of all damages exceeding $22,000, which the appellee did. The motion for a new trial was then overruled.

On the day of the accident, appellee was installing a heavy, steel ash pan under one of appellant's steam locomotives. He was being assisted by another employee by the name of Janes. They brought the ash pan to the side of the locomotive which was sitting over a work pit. Appellee burned two holes through each side of the ash pan large enough for a half-inch bolt to go through, in order to bolt a chain across the pan which could be used for the purpose of lifting the ash pan by means of a hook and a pull jack. Appellee obtained the half-inch bolts, together with washers and nuts, from the toolroom where appellant kept such supplies. The ash pan was placed in the pit through the use of a crane. The pull jack was placed in the fire box of the engine directly above the ash pan and after the hook was connected with the chain appellee went into the pit. The helper remained in the fire box. The pull jack was manually operated by working a handle up and down. While the ash pan was being raised to place it in its position underneath the engine, appellee was standing in the pit steadying it so it woudn't tilt either way and to help guide it into position. Before it reached its position one of the bolts broke and the right side of the ash pan fell against the appellee wedging him between the ash pan and the frame work of the locomotive, causing the injuries complained of.

The complaint as amended contains the following allegation: "During the repair operation hereinbefore described, defendant corporation negligently caused and permitted the metal bolt holding one side of the ash pan to the chain hoist to break, and the steel ash pan weighing approximately 150 to 200 pounds to drop down and swing to the rear and strike plaintiff in the face and on the body, thereby injuring the plaintiff." The appellee was the only witness who testified for him about the accident. His helper Janes did not testify. Appellee in his testimony described the situation somewhat more in detail than hereinabove stated, including various measurements of the pit, the pan, and distances, but with respect to the immediate cause of the accident gave only brief testimony as follows:

"Q. Now, did you get it in that position? A. No, sir.

"Q. What happened? A. The bolt broke and down came the pan.

"Q. What happened to you? A. I was wedged between the ash pan and the frame of the locomotive."

He also stated that the time he could not see his helper Janes in the fire box. On cross-examination, he testified as follows:

"Q. Now going back to June 22, 1948, the day of this occurrence, you had a helper working with you by the name of Janes, didn\'t you? A. Yes, sir.

"Q. Your job was to attach an ash pan to a locomotive, isn\'t that right? A. Yes, sir.

"Q. And, you were in charge of that work, were you not? A. Yes, sir.

"Q. You cut the two holes in the ash pan with a torch, didn\'t you? A. Yes, sir.

"Q. You went to the store-room and selected two new one-half inch bolts, a half-inch in diameter, for this work, did you not? A. Yes, sir.

"Q. When you went into the toolroom you could have selected any size bolt for this job, could you not? A. Yes, sir.

"Q. Now, after you got the bolts you went back to your work and you bolted the chain to the pan, didn\'t you? A. Yes, sir.

"Q. And you put the chain in the middle of the pan so that pan would balance when it was being hoisted, didn\'t you? A. I didn\'t make no measurements on it, whether I had it directly in the middle or center. I roughly got it to the center as closely as I could, without measurement.

* * * * * *

"Q. Now after this pan was pulled up into position, Mr. O\'Neill, and you had hold of it with your hands, you were trying to juggle it around to make the holes fit, isn\'t that right? A. Yes, sir."

On re-direct examination, appellee stated that he used the same kind and size of bolts that he had used on similar jobs in the past, and testified as follows to questions asked by the Court:

"The Court: How do you know the bolt broke?

"The Witness: Mr. Connelly, the master mechanic, had me up in his office and showed it to me.

"The Court: Did you do this job in the usual way that you have done this job for years?

"The Witness: Yes, sir.

"The Court: And that others do it?

"The Witness: Yes, sir."

At the close of the appellee's case, the appellant moved for a directed verdict. It contended then, as it does now, that the appellee failed to adduce any proof of appellant's negligence proximately causing appellee's injuries. The District Judge overruled the motion, and after also overruling a similar motion at the close of all the evidence, submitted the case to the jury under the theory of res ipsa loquitur.

Appellee's cause of action is based upon the allegation in the amended complaint that the appellant negligently caused and permitted the metal bolt holding one side of the ash pan to the chain hoist to break. There was no direct evidence of negligence on the part of the appellant. Appellee's testimony was "the bolt broke and down came the pan." There was no evidence as to what caused the bolt to break. There was no evidence that the bolt was defective, although we think the evidence reasonably supports the inference that the bolt broke because it was defective. Under such circumstances, the rule of res ipsa loquitur applies, namely that when the thing which produced the injury sued for is shown to have been under defendant's exclusive control and management and the circumstances of the occurrence that has caused the injury are of a character to give ground for a reasonable inference that if due care had been employed by the party charged with care in the premises, the thing that happened amiss would not have happened, an inference of negligence arises which, if not satisfactorily explained, is sufficient to take the case to the jury on the question of negligence. Southern Railway-Carolina Division v. Bennett, 233 U.S. 80, 86, 34 S.Ct. 566, 58 L.Ed. 860; Jesionowski, Adm'x v. Boston & Maine R. R., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416. But, as stated in Sweeney v. Erving, 228 U.S. 233, 33 S. Ct. 416, 57 L.Ed. 815, where the rule is well analyzed, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference, that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient, and that other evidence may explain or completely rebut the inference.

Under the rule the burden of proof does not shift from the plaintiff to the defendant, and if the plaintiff offers no evidence pertaining to the issue of negligence other than the facts of the occurrence of the injury, and the explanatory facts are sufficient to rebut the inference, the plaintiff fails to meet the burden and fails to make a case. Sweeney v. Erving, supra, 228 U.S. at page 241, 33 S.Ct. at page 418. Where the explanatory evidence is contradictory or of such a character as to justify different inferences as to defendant's exercise of due care, it is for the jury to determine whether the inference of negligence has been rebutted by the explanatory evidence. But where the possible inference of negligence is clearly overcome by undisputed evidence free from any reasonable adverse inference, or where the uncontradicted explanatory facts establish non-liability as a matter of law, it is the duty of the court to direct a verdict for the defendant. The application of the rule does not change the general rule that where the evidence as a whole is insufficient to support a verdict for the plaintiff, defendant's motion for a directed verdict should be sustained.

In the present case, the facts on this issue are undisputed. Appellee's own testimony developed the fact that the bolt was a new bolt selected by him from regular stock, thus eliminating any possible question of the credibility of an adverse witness. The case is thus materially different from the cases, some of which are relied upon by appellee, where equipment in use has become defective through excessive use or lack of proper inspection and repair. The bolt was not manufactured by the appellant; it was purchased by appellant in the usual course of business without notice of any defect. The broken bolt was not called for by appellee and was not introduced in evidence. There was no evidence of any kind in what way it was defective, or that it was not a hidden defect, or that the appellant knew or should have known that it was defective. As a matter of law, such a purchaser from a manufacturer is not chargeable with negligence if, after passing it on to others in the usual course of...