Atlantic Coast Line Railroad Company v. De Mayo

• Decision Date: 13 May 1955
• Docket Number: No. 15123.,15123.
• Citation: 222 F.2d 462
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Margaret DE MAYO, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

222 F.2d 462 (1955)

ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Margaret DE MAYO, Appellee.

No. 15123.

United States Court of Appeals Fifth Circuit.

May 13, 1955.

H. Reid DeJarnette, Miami, Fla., Parker Holt, Fort Myers, Fla., Frank A. Howard, Jr., Dixon, DeJarnette & Bradford, Miami, Fla., Henderson, Franklin, Starnes & Holt, Fort Myers, Fla., C. C. Howell, Wilmington, N. C., for appellant.

Paul G. Hyman, Richard E. Hodges, and Britton, Hodges & Hyman, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and DAWKINS, District Judge.

DAWKINS, District Judge.

Plaintiff, appellee, was awarded a verdict in the sum of $25,000 for injuries allegedly received when she tripped over the loose end of a bracket which held the cover of a steam heating pipe extending along one of the end corridors of appellant's passenger coach. In some way, unexplained, one end of the bracket had become detached, some screws were missing, and it protruded a few inches into the aisle. The suit was by the husband and wife, alleging that the latter was a passenger upon one of appellant's trains and that in returning to her seat on the coach from the dining car, she "tripped and fell over said metal strip, causing serious injuries".

Appellant's specifications of error are: (1) overruling motions for directed verdict, judgment notwithstanding the verdict, and new trial; and (2) charging the jury that the doctrine of res ipsa loquitur applied to the facts of the case.

There is no dispute that one end of the metal strip holding the pipe covering in place was loose and extended into the aisle a few inches. Immediately after the fall, appellee informed the coach maid and inspector and they, too, found the bracket loose as claimed. Appellee made no complaint at that time of injuries, and hers is the only testimony that she actually fell.

Appellant proved by the maid, the chair car attendant, who called himself "transport inspector" (usually known in the south as porter) and the conductor that they had passed along the same aisle repeatedly only a short time before the alleged tripping of appellee and saw nothing wrong with the bracket, the purpose being to show that it was either kicked loose by appellee or became detached immediately before the alleged fall.

The one question involved in this appeal is: did the court err in charging the jury that the doctrine of res ipsa loquitur applied? The charge on the point was as follows:

"Gentlemen of the jury the Court finds and instructs you that the plaintiff in this case relies on the legal doctrine of Res Ipsa Loquitur and that it finds this doctrine to be applicable in this case, 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 of negligence where direct evidence of it may be lacking, but it is evidence weighed, not necessarily to be accepted as sufficient; that they call for

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