Chicago, Rock Island and Pacific Railroad Co. v. Speth

• Decision Date: 12 December 1968
• Docket Number: No. 19187.,19187.
• Citation: 404 F.2d 291
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. Dallas D. SPETH and Olin Mathieson Chemical Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

404 F.2d 291 (1968)

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. Dallas D. SPETH and Olin Mathieson Chemical Corporation, Appellees.

No. 19187.

United States Court of Appeals Eighth Circuit.

December 12, 1968.

John R. Dudgeon, Lincoln, Neb., for appellant.

Philip B. Lush, Hopkins, Minn., for appellee, Dallas D. Speth.

Charles F. Gotch, of Cassem, Tierney, Adams & Henatsch, Omaha, Neb., for appellee, Olin Mathieson.

Before VAN OOSTERHOUT, Chief Judge, and BLACKMUN and LAY, Circuit Judges.

LAY, Circuit Judge.

The Chicago, Rock Island and Pacific Railroad Company appeals from an adverse judgment under the Federal Boiler Inspection Act, 45 U.S.C. §§ 22-34. The defendant seeks reversal challenging (1) the failure of plaintiff to prove a violation of the Boiler Inspection Act as a matter of law and (2) the trial court giving additional instructions to the jury in absence of counsel after the case had been submitted. We reverse and grant a new trial on damages only.

The evidence discloses that Dallas D. Speth was employed by the railroad as a fireman on a switch engine. On October 4, 1963, Speth observed two explosive torpedoes improperly placed on the edge of a rack inside the engine cab. The torpedoes were "stuck together," and while he was attempting to separate them before returning them to their proper storage place, they exploded. As a result of the explosion, he lost a thumb and a portion of his fingers on the left hand. The torpedoes had the word "Danger" marked on them. Speth testified that although he knew they were explosive, he had no reason to believe they were defective.

The railroad seeks to avoid liability under the Federal Boiler Inspection Act on the ground that the facts in this case do not demonstrate that the injury was caused by a mechanical defect in railroad equipment. It is clear, however, that the Act does not make this a requirement for its application. As the United States Supreme Court stated in Lilly v. Grand Trunk W. R. R., 317 U.S. 481, 488, 63 S.Ct. 347, 352, 87 L.Ed. 411 (1943):

"The Boiler Inspection Act without limitation speaks of equipment `in proper condition and safe to operate * * * without unnecessary peril to life or limb.\' Conditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb."

See also Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Holfester v. Long Island R. R., 360 F.2d 369 (2 Cir. 1966); Gowins v. Pennsylvania R. R., 299 F.2d 431, 433 (6 Cir. 1962). We find the record is factually sufficient to sustain the jury verdict and affirm the judgment as to liability against the railroad. However, because of errors relating to instructions on damages, we remand the case for a new trial on the issue of damages alone.

After the jury had been instructed by the court and had retired, the following colloquy between counsel and the court took place:

"By the Court: I am inclined to think in this particular case that if the Jury raises any questions, that I would simply send the complete Charge to them and let them study it, but I recognize you would probably like to get back.

"Mr. Dudgeon (attorney for the railroad): I will stay if Your Honor thinks this is the thing to do.

"By the Court: You will be given an exception, if you are not here, to any additional Charge that I might give."

The jury retired in the middle of the afternoon. At 8:55 p. m. the record shows the following communication took place:

"By the Court: Members of the Jury, you sent an inquiry to the Court inquiring about Question No. 8, and I gather your concern is whether or not that is related to something else. It is not. The question is plain and simple.

(Interrogatory No. 8) "`WHAT AMOUNT DO YOU FIND FROM A PREPONDERANCE OF THE EVIDENCE TO BE A FAIR AND REASONABLE, BUT NOT EXCESSIVE, COMPENSATION FOR THE INJURIES AND DAMAGES WHICH THE PLAINTIFF HAS SUSTAINED SOLELY AS A RESULT OF THE ACCIDENT INVOLVED IN THIS ACTION?\'

"That would mean that if you had no other evidence, except the damage that this man has sustained, if any, this is the figure you will insert for that amount.

"Do I make myself plain? It is not related to any other percentages at all, negligence or contributory negligence or anything else.

"Do I make myself plain?"

At 9:10 p. m. the jury returned with a verdict of $16,000.00. An answer to a special interrogatory (submitted by reason of the alternative claim under the Federal Employers' Liability Act¹) assessed the plaintiff's contributory negligence in the amount of forty per cent. After viewing the verdict, the court sua sponte said to the jury:

"Members of the Jury, in response to your Question Eight, I ask you, is the figure inserted in Question Eight the total damage that you compute that the plaintiff has suffered or is this a net figure that you arrived at?

"The Foreman: This is a net figure.

"By the Court: Then I will have to send you back and ask you to complete the form as to the total damage irrespective of deductions, contributory negligence or anything else.

"Will you please do that?"

The jury then retired and five minutes later returned with a verdict of $40,000.00.²

The matter of "additional instructions" in absence of counsel after a case is submitted to a jury has been a subject frequently discussed. We feel case authority makes clear the necessity of reversal here. See, e. g., Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919); cf. Rice v. United States, 356 F.2d 709, 716-717 (8 Cir. 1966). Initially we note that the question propounded by the jury is not included in the record. Any question propounded by the jury, as well as the answer by the trial court, should affirmatively appear of record. It is an element of the trial itself. See Fillippon v. Albion Vein Slate Co., 250 U.S. at 81, 39 S.Ct. 435. In Arrington v. Robertson, 114 F.2d 821, 823 (3 Cir. 1940), the court pointed out:

"The record does not disclose the phraseology of the jury\'s question. Consequently we cannot know whether the instructions given, even though entirely sound as abstract legal statements, were appropriate to answer it, or whether additional instructions, appropriate and indeed necessary to supplement those given, might not have been suggested to the trial judge by counsel for the defendant if he had been given the opportunity to be present."

Secondly, counsel should be given specific notice and opportunity to be present at the giving of any oral instruction. Counsel should have the opportunity to know the jury's question and the court's intended response in order to make specific exception to any additional instruction. Any prospective or even subsequent grant of an overall exception³ to an unknown or known charge fails to heed the primary reason for the rule providing for the exception. The purpose of the specific exception is to alert the trial court to possible error so that immediate correction might be made. Cf. Cone v. Beneficial Standard Life Ins. Co., 388 F.2d 456 (8 Cir. 1968). This was pointed out in Fillippon v. Albion Vein Slate Co., 250 U.S. at 82, 39 S.Ct. at 436 wherein Mr. Justice Pitney, speaking for the Court, stated:

"It is not correct, however, to regard the opportunity of afterwards excepting to the instruction and to the manner of giving it as equivalent to an opportunity to be present during the proceedings. To so hold would be to overlook the primary and essential function of an exception, which is to direct the mind of the trial judge to the point in which it is supposed that he has erred in law, so that he may reconsider it and change his ruling if convinced of error, and that injustice and mistrials to inadvertent errors may thus be obviated."

Thirdly, the court's questioning of the jury regarding the amount of their verdict, even on a special verdict form is impermissible. Although the jury system may not provide a means to achieve faultless justice, it is still the best instrumentality our democratic society has devised to decide an adversary proceeding. As such, a jury must be totally immune from any possible coercion or subtle pressures to increase or decrease its decided verdict by reason of the court's interrogation and direction to reconsider its findings. If in his discretion a trial judge believes that a jury's verdict is too large or too small, his only alternative would be to grant a new trial. This is not to say where the verdict on its face shows a clear disregard for the court's instructions, the jury may not be asked to correct it. See Firemen's Ins. Co. of Newark, N. J. v. Craigie, 298 F.2d 457 (8 Cir. 1962).⁴...