Johnson v. Erie Railroad Company
| Decision Date | 06 August 1956 |
| Docket Number | Docket 23973.,No. 339,339 |
| Citation | 236 F.2d 352 |
| Parties | Owen JOHNSON, Plaintiff-Appellant, v. ERIE RAILROAD COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
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Harry C. Chashin, New York City (Marcus & Levy, New York City), for plaintiff-appellant.
J. Roger Carroll, New York City (Davis, Polk, Gardner, Sunderland & Kiendl, New York City), for defendant-appellee.
Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.
Appellant, an employee of the defendant railroad, brought this action under the Federal Employers' Liability Act to recover for a leg injury allegedly sustained when he fell against the sharp edge of a box contained in a mail sack aboard a railway mail car in which he was working. At the time of the alleged accident the plaintiff was working in a mail car sandwiched between two other cars on a spur track on the lower level of the Paterson, New Jersey, station. The fall allegedly resulted from an impact of a locomotive occasioned by the coupling to the trio of cars. The claimed negligence on which the plaintiff relied was the railroad's failure to warn him of the impending impact, as was required by its rule,1 through his friend and co-worker, DelGuidice, who was working on a track outside the car passing mail sacks in to the plaintiff. The plaintiff claimed that the blow of the box against his leg reactivated an osteomyelitic condition from which he had suffered some years before.
The charge contained a correct statement of the burden of proof. However, in one portion of the charge the judge went on to say:
"It is up to you ladies and gentlemen to determine whether the evidence adduced before you shows with reasonable certainty that the plaintiff\'s alleged injury or future disability, if you find he has any, resulted from the aggravation of the previous condition, or, rather from the previous condition itself, in order to warrant a recovery of damages in this case."
To this passage the plaintiff specifically excepted. We think the exception was well taken. At least as to injuries actually suffered prior to the trial, it was incumbent on the plaintiff to prove a causal connection with the defendant's negligence only by a fair preponderance of the evidence: to require proof to "a reasonable certainty" imposed an excessive burden. Johnson v. Connecticut Co., 85 Conn. 438, 83 A. 530, 531; Cross v. City of Syracuse, 200 N.Y. 393, 94 N.E. 184.
In making the specific exception noted above plaintiff's counsel concluded with the following observation. "I think the burden imposed on the plaintiff was undue and improper." While this general statement of position may have lacked the specificity required by Fed.Rules Civ. Proc. rule 51, 28 U.S.C.A., we think that consistent with our opinion in Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 234 F.2d 253, we may consider other passages in the charge affecting the burden of proof.
The charge included this statement:
We think it erroneous thus to impose a subjective test and to equate a fair preponderance of the evidence with that degree of assurance and certainty which jurors would require for "the important decisions of their daily lives."2 This portion of the charge is strikingly similar to the trial court's definition of reasonable doubt which was considered by the Supreme Court in Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150, a criminal tax evasion case. The court there held that the definition was not vitally inconsistent with the concept of reasonable doubt. That being so, such an instruction in a civil case puts an excessive burden on the plaintiff.
In another passage, the judge categorically asserted that the plaintiff's version of how the accident happened conflicted with his out-of-court statement given to one Dr. Fernandez in the hospital. We do not find any necessary inconsistency in the earlier statement: at most it was a question for the jury. The judge then went on to say:
"* * * I don\'t want to review that evidence, but it is up to you to decide whether you want to believe one or the other, because if you have any doubt about it then he has not sustained the burden of proof which the law imposes upon him."
That statement was erroneous. Notwithstanding a doubt thus engendered a jury might yet properly find that the plaintiff had sustained the burden under which he labored. Aetna Life Insurance Co. v. Caffee, 5 Cir., 286 F. 657.
It was further charged:
"*...
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