Lowery v. Hocking Valley Ry. Co.

• Citation: 60 F.2d 78
• Decision Date: 27 June 1932
• Docket Number: No. 5893.,5893.
• Parties: LOWERY v. HOCKING VALLEY RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

60 F.2d 78 (1932)

LOWERY v. HOCKING VALLEY RY. CO.

No. 5893.

Circuit Court of Appeals, Sixth Circuit.

June 27, 1932.

J. E. Mathews, of Cleveland, Ohio (Bernsteen & Bernsteen and M. L. Bernsteen, all of Cleveland, Ohio, on the brief), for appellant.

James P. Wood, of Cleveland, Ohio (Wilson & Rector, of Columbus, Ohio, and Tolles, Hogsett & Ginn, of Cleveland, Ohio, on the brief), for appellee.

Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.

HICKENLOOPER, Circuit Judge.

Plaintiff in the court below appeals from a judgment entered upon a verdict for defendant in an action under the Federal Employers' Liability Act (45 USCA §§ 51-59). The plaintiff was the conductor upon one of the defendant's freight trains, riding in the caboose, when there occurred a derailment of several cars some three car lengths back of the locomotive. With the derailment of these cars, the air brakes were set in emergency throughout the train, and this, in turn, derailed and threw off center many of the other cars, including the caboose, causing physical injury to plaintiff. After the accident, it was found that a piece of heavy oak plank had been ripped from its place in a crossing about one mile north of the derailment, and this plank was found at the scene of the accident bearing marks and scoring which led to the conclusion of those in charge of the investigation that in some unexplained manner this plank had been torn from its place, picked up by the train, and carried for the distance of about a mile, and there directly caused the derailment. An angle iron was found to be bent or broken upon the first car derailed, and this was the only part of the equipment which, so far as disclosed, "could have picked up a piece of plank in this way and carried it along for a distance."

At the trial the plaintiff, by requests to charge and exceptions to the charge as given, sufficiently preserved for our consideration here, we think, the questions whether the doctrine of res ipsa loquitur applied, of his right to a charge covering this doctrine, and of the sufficiency or correctness of the charges given. These are the only serious questions for our consideration. While the court did charge the jury that, where a derailment occurs, an inference of negligence arises "in the absence of any evidence, any explanation of the derailment," yet this charge was accompanied by reiterated statements that the burden was upon the plaintiff to prove that the accident was due to defendant company's negligence in keeping its roadbed and equipment in a safe condition, and that, if the jury believed that the derailment was probably caused by the piece of plank, possibly understood as an "explanation," then the jury were "to consider whether the evidence disclosed a lack of due care upon the part of the railroad company in respect to the farm crossing, or in its roadbed or equipment." Nowhere was the jury charged as to the true effect of the doctrine of res ipsa loquitur, or that, even in the event last mentioned, the jury would be justified in inferring negligence merely from the fact that the plank had been picked up by the train.

This court has frequently held that the doctrine of res ipsa loquitur is applicable to a case between master and servant and has defined the scope and effect of this doctrine. See Cincinnati, N. O. & T. P. Ry. Co. v. South Fork Coal Co. (C. C. A.) 139 F. 528, 1 L. R. A. (N. S.) 533; Byers v. Carnegie Steel Co. (C. C. A.) 159 F. 347, 16 L. R. A. (N. S.) 214; Baltimore & O. R. Co. v. Kast (C. C. A.) 299 F. 419; Cochran v. Pittsburgh & L. E. R. Co. (D. C.) 31 F.(2d) 769, approved in Chesapeake & O. R. Co....