Miller v. Cincinnati, New Orleans and Texas Pacific Ry. Co.

• Citation: 317 F.2d 693
• Decision Date: 22 May 1963
• Docket Number: No. 14954.,14954.
• Parties: Lawrence M. MILLER, Plaintiff-Appellee, v. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

317 F.2d 693 (1963)

Lawrence M. MILLER, Plaintiff-Appellee, v. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY, Defendant-Appellant.

No. 14954.

United States Court of Appeals Sixth Circuit.

May 22, 1963.

Dawson Hall, Chattanooga, Tenn., Whitaker, Hall & Haynes, Chattanooga, Tenn., of counsel, for appellant.

Ray Siener and Joe Van Derveer, Chattanooga, Tenn., Van Derveer, Brown & Siener, Chattanooga, Tenn., on the brief, for appellee.

Before MILLER, McALLISTER and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

This is an appeal from a judgment for plaintiff entered upon a jury verdict of $24,000. The action was brought under the Federal Employers' Liability Act. Title 45 U.S.C.A. §§ 51-60. Defendant-appellant railroad asserts that a verdict should have been directed for it, contending that the proofs did not present a jury question as to negligence or proximate cause. The District Judge held that the issue of proximate cause was for the jury and that, applying the doctrine of res ipsa loquitur, so also was defendant's negligence. He denied defendant's motions for a direction and for judgment non obstante veredicto.

1. Negligence.

This question is narrowed to the inquiry as to whether there was sufficient evidence from which a jury could find that defendant had constructive notice of the defective condition of an appliance (a fire hose nozzle) claimed to have caused plaintiff's injuries. Plaintiff injured his right arm while returning such nozzle to its bracket after it had, from a cause unknown, become disengaged from such bracket. The nozzle, as well as the hose of which it was a part, was housed in a small shed or building (8 by 10 feet square) adjacent to the railroad's machine shop. A window opening into the machine shop provided a ready mode of access to the fire hose. The hose was wound upon a reel which rested upon a pump box in the shed. In this metal box were contained electric pumps which, when activated, increased the available water pressure from about 130 pounds to 800 pounds. The high pressure nozzle, approximately two feet in length and having a pistol type grip, was attached to the end of the hose. The hose and its nozzle extended down to the side of the pump box. There, two brackets were provided to hold the nozzle and its trigger mechanism while the same were not in use. When the nozzle was removed from the bracket, the electric pump started automatically. If the machine was working properly, however, no water would come out of the nozzle until the grip trigger was pressed, or pulled. The proofs showed that while plaintiff was in the act of putting the nozzle into its bracket, and without the trigger being pressed, water surged out of it. He stated that, while he was so replacing the nozzle, his right arm hit a piece of angle iron on the pump box and that he was thereby injured.

An expert witness for plaintiff described the working parts of the nozzle, its trigger and the electric pumps. It was not disputed that although removing the nozzle from its bracket immediately increased the water pressure, no water should be discharged without pulling the trigger. This expert, at first, by viewing an exhibit which he thought was a photograph of the nozzle in question, testified that the defect which caused the improper discharge of water was that the trigger was not properly positioned. Cross-examination, however, disclosed that the exhibit which the expert relied upon and which disclosed an improperly placed trigger, was not a photograph of the allegedly defective nozzle. Pictures of the nozzle involved, although they did not expose the inner mechanism of the nozzle and its trigger, did not disclose any observable defects. The expert then gave his deduction that the fact that water was discharged without depressing the trigger proved that the nozzle was defective. A witness for defendant agreed that such deduction was valid. In its address to this Court, defendant does not question that the foregoing would permit a jury to find that the appliance in question was defective at the time of the injury.

Defendant, however, properly argues that negligence cannot be predicated solely on the fact that the appliance was defective.¹ Under familiar law, defendant could not be convicted of negligence, absent proof that such defect was known, or should or could have been known, by defendant, with opportunity to correct it. 56 C.J.S. Master and Servant § 244, p. 1000. Carnegie Steel Co. v. Byers, 149 F. 667, 669 (C.A.6, 1907); Atlantic Coast Line R. Co. v. Collins, 235 F.2d 805, 809 (C.A.4, 1956) cert. denied 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d 238. This rule is applicable to FELA actions where negligence is essential to recovery. Kaminski v. Chicago River & Indiana R. Co., 200 F.2d 1, 3, 4 (C.A.7, 1952); Wilson v. Missouri Pacific R. Co., 319 Mo. 308, 5 S.W.2d 19, cert. denied 278 U.S. 622, 49 S.Ct. 25, 73 L.Ed. 543. The establishment of such an element, however, may come from proof of facts permitting a jury inference that the defect was discovered, or should have been discovered, by the exercise of reasonable care or inspection. 56 C.J.S. Master and Servant § 248, p. 1002. The resolution of this question in the case at bar is made difficult because the record is entirely barren of any evidence by plaintiff or defendant as to the history of the defective appliance prior to plaintiff's injury.

A supervisory employee of defendant testified that after plaintiff's injury and on the same day, he examined and tested the accused nozzle and found it in proper working condition. There was further defense testimony that at all times after the injury, which occurred on August 7, 1958, and up to the time of trial in 1961, the nozzle worked correctly and that it had never been repaired. A few days before the trial, apparently when an employee of defendant was getting ready to bring the nozzle into court, a leak was discovered. This employee testified, "I noticed briefly that it does have a leak, that was yesterday, just a small drip. * * * Usually when you open it up and then shut it off, it will drip a little for a while after you shut it off." Defendant offered no evidence as to how long it had owned the fire fighting equipment, what use had been made of it, whether it had ever been inspected, or whether any system of inspection was practiced. Plaintiff offered no evidence on this subject. The District Judge's opinion, denying defendant's motion non obstante, summed up the evidence by saying, "There is a complete absence of any evidence of when or how the defect arose or how long it had existed." He further made bare the legal point involved, "Unless proof by the plaintiff of the existence of the defect at the time of the injury is, standing alone and of itself, sufficient to create a jury issue as to the actual or constructive knowledge of the defect by the defendant, there is a complete absence of evidence in the record to support a verdict upon this issue."

The District Judge held that an issue as to notice was made. We agree. We make clear, however, that in so holding, we depend entirely on the doctrine of res ipsa loquitur which is applicable to actions under the Federal Employers' Liability Act. Southern Railway-Carolina Division Co. v. Bennett, 233 U.S. 80, 34 S.Ct. 566, 58 L.Ed. 860; Southern R. Co. v. Derr, 240 F. 73 (C.A.6, 1917); Baltimore & Ohio R. Co. v. Kast, 299 F. 419 (C.A.6, 1924) cert. denied, 266 U.S. 613, 45 S.Ct. 95, 69 L.Ed. 468; Didinger v. Pennsylvania R. Co., 39 F.2d 798 (C.A. 6, 1930); Chesapeake & Ohio R. Co. v. Smith, 42 F.2d 111 (C.A.6, 1930) cert. denied 282 U.S. 856, 51 S.Ct. 32, 75 L.Ed. 758; Lowery v. Hocking Valley R. Co., 60 F.2d 78 (C.A.6, 1932); Carpenter v. Baltimore & Ohio R. Co., 109 F.2d 375 (C.A.6, 1940); Nashville, C. & St. L. R. Co. v. York, 127 F.2d 606 (C.A.6, 1942). See annotation 35 A.L.R.2d 475, 491, 493.

It is not questioned here but that plaintiff's proofs were, under res ipsa loquitur, sufficient to establish that the hose and its nozzle were defective at the time of plaintiff's injuries. Having gone this far, does the doctrine permit supplying by inference the other essential to defendant's negligence, viz., actual or constructive notice of such defective appliance. We think it does. As stated in Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815, 819, "* * * Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence * * *." (Emphasis supplied.) If application of the doctrine permits an inference of negligence, such inference must necessarily include all the essential elements of negligence, including here an inference that defendant had actual or constructive knowledge of the defective condition of the nozzle.

We find no case which, in precise language, supports what we have just said. However, a fair construction of relevant decisions does support us. In Southern Railway-Carolina Division Company et al. v. Bennett, 233 U.S. 80, 85, 34 S.Ct. 566, 567, 58 L.Ed. 860, 863, the Supreme Court held not erroneous an instruction to the effect that "If a servant is injured through defective instrumentalities, it is prima facie evidence of the master's negligence and that the master `assumes the burden' of showing that he exercised due care in furnishing them." (Emphasis supplied.) In Lowery v. Hocking Valley Ry. Co., 60 F.2d 78, 79 (C.A.6, 1932), this Court was dealing with an FELA case where plaintiff was injured because of a train derailment. This was caused by a piece of plank picked up at a crossing which got under the train wheels and derailed it. There was no evidence as to the crossing being improperly constructed or the train equipment being out of repair prior to the accident, but we held that the doctrine of res ipsa loquitur permitted an inference of the railroad's negligence and said,

"Heavy planking is not ordinarily torn from its location at a crossing and carried by a

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