Fassbinder v. Pennsylvania Railroad Company, 13723.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation322 F.2d 859
Docket NumberNo. 13723.,13723.
PartiesGeorge W. FASSBINDER, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, a corporation.
Decision Date16 September 1963

James E. McLaughlin, Pittsburgh, Pa. (McArdle, Harrington & McLaughlin, Pittsburgh, Pa., Charles Alan Wright, Austin, Tex., on the brief), for appellant.

Judd N. Poffinberger, Jr., Pittsburgh, Pa. (C. M. Grimstad, Kirkpatrick, Pomeroy, Lockhart & Johnson, Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge and McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.

Reargued En Banc April 4, 1963.

KALODNER, Circuit Judge.

The first trial in plaintiff's personal injury action under the Federal Employers' Liability Act,1 resulted in a jury verdict of $11,750 in his favor. The trial judge granted a new trial which resulted in a jury verdict in the defendant's favor.

The instant appeal presented the critical issue as to whether reversible error was committed in granting a new trial; specifically, whether the trial judge abused his legal discretion in granting a new trial in that it was not "exercised in accordance with ascertainable legal standards" and was a usurpation of the function of the jury: Lind v. Schenley Industries, Inc., 278 F.2d 79 (3 Cir., 1960), cert. den. 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60.

Plaintiff was employed by the defendant as a conductor on one of its passenger trains. He was injured when, in the course of his employment, he tried to close a railroad coach door which stuck because of a defective mechanism — a gripping device used to retain tension on the hand brake of the coach which is called a "dog". Plaintiff's complaint alleged that the defendant had failed to provide him with a safe place to work.

At the trial under review the existence of the defective mechanism was not disputed by the defendant. No evidence was adduced by the plaintiff as to when or how the defect came into being. The trial judge instructed the jury that the defendant could not be found negligent unless it knew or should have known of the defective condition of the mechanism prior to the happening of the accident. Under the circumstances stated the jury's verdict in favor of the plaintiff and against the defendant must be regarded as a factual finding that the defendant had constructive notice of the existence of the defective condition.

The trial judge set aside the jury's verdict because or his conclusion that the evidence failed to establish defendant's "knowledge" of the defective mechanism "nor anything from which such knowledge could be inferred" and that "in the absence of proof of either actual or constructive notice, plaintiff has failed to establish his case and a new trial must be granted."2

We are of the opinion that the trial judge erred in not giving effect to the inference of negligence warranted by the res ispa loquitur situation in the instant case, and as a consequence he usurped the fact-finding function of the jury when he granted a new trial.

The inference of negligence permissible under the res ipsa loquitur doctrine was certainly sufficient "to justify with reason" the jury's finding that the defendant was negligent. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). The vitality of Rogers has just been reaffirmed — Basham v. Pennsylvania Railroad Co., 372 U.S. 699, 83 S.Ct. 965, 10 L.Ed.2d 80 (1963).

That a res ipsa loquitur situation existed here was established by the undisputed evidence that the defendant had exclusive control of the railroad coach and its appurtenant mechanisms; that one of these mechanisms, "the dog", was defective and its condition was the precipitating cause of the accident which resulted in whatever injury was sustained by the plaintiff; that the accident was such as in the ordinary course of things would not have happened if the defendant had used proper care with respect to the "dog".

In Jesionowski v. Boston & Maine Railroad, 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416 (1947), where the Supreme Court, in specific terms, first made the doctrine of res ipsa loquitur, as stated in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815 (1913), applicable to Federal Employers' Liability Act cases, it was said at page 456 of 329 U.S., at page 403 of 67 S.Ct., 91 L.Ed. 416:

"In San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 98-99 32 S.Ct. 399, 56 L.Ed. 680, this Court said: `when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant\'s want of care.\'"

and at page 457 of 329 U.S., at page 404 of 67 S.Ct., 91 L.Ed. 416:

"A conceptualistic interpretation of res ipsa loquitur has never been used by this Court to reduce the jury\'s power to draw inferences from facts. Such an interpretation unduly narrows the doctrine as this Court has applied it.
"This Court said, in Sweeney v. Erving, 228 U.S. 233, 240 33 S.Ct. 416, 57 L.Ed. 815 1913, a decision which cut through the mass of verbiage built up around the doctrine of res ipsa loquitur, that `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; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.\'" (emphasis supplied)3

Here the defendant had exclusive control of the railroad coach and its appurtenant mechanisms; the accident was such as in the ordinary course of things would not have occurred if the defendant had used proper care with respect to the mechanism which precipitated the plaintiff's injury, and as a consequence it afforded reasonable evidence, in the absence of explanation by the defendant, that the accident arose from the defendant's want of care. San Juan Light & Transit Company v. Requena, 224 U.S. 89, 32 S.Ct. 399, 56 L.Ed. 680 (1912).

As earlier stated, the defendant did not dispute the existence of the defective mechanism. Its defense testimony was limited to that of its physician who testified in substance that the plaintiff did not suffer any injuries. In short, there was no attempt by the defendant railroad to make "explanation or rebuttal" of the evidence with respect to the defective mechanism under its exclusive control as it was required to do under Jesionowski v. Boston & Maine Railroad, supra.

This Court has applied the doctrine of res ipsa loquitur in FELA cases time and again. We did so in Wiles v. New York, Chicago and St. Louis Railroad Company, 283 F.2d 328 (3 Cir., 1960), cert. den. 364 U.S. 900, 81 S.Ct. 232, 5 L.Ed.2d 193 where a defective jack used to raise a railroad hopper car slipped and threw its operator some 15 feet. Speaking for the Court, Chief Judge Biggs there said (283 F.2d pp. 330-331):

"It is clear that under the circumstances of this case Wiles ordinarily would be entitled to the inference of negligence afforded by the res ipsa loquitur doctrine since the jack and its internal mechanism were under the Railroad\'s exclusive control and the accident was not one which would ordinarily occur in the absence of negligence."

In Forsman v. Pennsylvania Railroad Company, 280 F.2d 315 (3 Cir., 1960) and Weigand v. Pennsylvania Railroad Company, 267 F.2d 281 (3 Cir., 1959), where Judge McLaughlin spoke for the Court, we held that the doctrine of res ipsa loquitur applied. In both cases a railroad employee was injured when ground on railroad property suddenly gave way. In Forsman it was said (280 F.2d pp. 317-318):

"At the close of the whole case there was a true res ipsa loquitur jury question presented as to the defendant railroad. The proofs indicated that the unusual accident involved would not have ordinarily occurred in the absence of negligence, that it took place on premises exclusively controlled by defendant and that plaintiff was blameless."

In Weigand, where the plaintiff, an employee of the defendant railroad, was injured when ground between intervening railroad tracks "suddenly gave way" it was said (267 F.2d p. 282):

"Without detailing them at length here, the facts embraced within them a res ipsa loquitur situation."

Again, in Sweeting v. Pennsylvania R. Co., 142 F.2d 611 (3 Cir., 1944), we held that the res ipsa loquitur doctrine was applicable where a railroad employee was electrically shocked to death in a locomotive cab. Speaking for the Court Judge McLaughlin there said (142 F.2d p. 613):

"If Sweeting was shocked within the cab, such accident, ordinarily speaking, would not have happened if those having the control of the locomotive and of the cab, used proper care and warrants the inference of negligence; in other words, res ipsa loquitur". (emphasis supplied)

In Lukon v. Pennsylvania R. Co., 131 F.2d 327 (3 Cir., 1942) we held the res ipsa loquitur doctrine applicable whether the evidence was to the effect that a railroad section hand was found dead with a fractured skull alongside tracks over which a locomotive had just passed; that coal in the tender of the locomotive was not trimmed; that lumps of coal were found lying about the head of the section hand.4

The facts in the instant case are singularly analogous to the situation in Baltimore & O. R. Co. v. O'Neill, 211 F.2d 190 (6 Cir., 1954) where a railroad employee was injured when one side of a heavy steel ash pan which he was installing fell against him as a result of the...

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