New York, New Haven & Hartford Railroad Co. v. Dox

• Decision Date: 22 November 1957
• Docket Number: No. 5294.,5294.
• Parties: The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Defendant, Appellant, v. Joseph DOX, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

249 F.2d 572 (1957)

The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Defendant, Appellant, v. Joseph DOX, Plaintiff, Appellee.

No. 5294.

United States Court of Appeals First Circuit.

November 22, 1957.

Noel W. Deering, Boston, with whom David W. Walsh, Lexington, Mass., was on brief, for appellant.

Hyman Katz, Boston, Mass., with whom Bear & Bear, Boston, Mass., was on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

PER CURIAM.

This was a complaint filed under the Federal Employers' Liability Act, as amended, 45 U.S.C.A. § 51 et seq., by a machinist in the employ of The New York, New Haven & Hartford Railroad Company. The district court, being of opinion that plaintiff had shown enough to get to the jury, submitted the case to the jury, and after that body had returned a verdict for the plaintiff the district court declined to enter judgment for defendant notwithstanding the verdict. See Rule 50(b) Fed.Rules Civ. Proc. 28 U.S.C.A. On the present appeal from the judgment for the plaintiff entered pursuant to the jury verdict, the sole question presented to us by appellant is a frequently recurring one — whether the district court committed reversible error in leaving the case to the jury. We affirm the judgment of the district court.

So that appellant may be under no misapprehension of the grounds of our affirmance, we say that we recognize the following propositions to be true beyond doubt:

1. However archaic and outmoded may be the principles of law applicable, the Congress deliberately chose, in the Federal Employers' Liability Act, to make the carrier's liability dependent upon a proof of fault or negligence on the carrier's part.

2. Laying aside certain common law defenses which have been modified or abolished by the Federal Employers' Liability Act, as amended, and focusing on the issue of negligence upon which the carrier's prima facie liability is made to depend, a Federal Employers' Liability Act case is just like any other case of personal injuries alleged to be due to negligence, so far as concerns the issues of negligence and of "proximate cause".

3. Therefore, plaintiff's right to a jury trial, as guaranteed by the Seventh Amendment to the Federal Constitution, is not an unqualified right to have the jury pass on issues of negligence and proximate cause in all cases. At the date of the adoption of the Seventh Amendment, and for centuries prior thereto, the common law had prescribed a function to be performed by the trial judge, as well as a function to be performed by the jury, in the determination of issues of negligence and of proximate causation. See Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857. The jury was the body competent to decide all questions of credibility of witnesses, and all questions of fact fairly in dispute, together with inferences reasonably to be drawn therefrom. But the case might never reach the jury, because the trial judge had to determine the preliminary issue whether the plaintiff had shown enough from which a fair-minded jury might legitimately return a plaintiff's verdict. This preliminary issue is usually said to be a "matter of law", since it is for the court to decide, but it is really a preliminary exercise of judgment on the facts. As we said in Channell v. Sampson, 1939, 1 Cir., 108 F.2d 315:

"Passing upon the motion for a directed verdict, the trial judge had to exercise a judgment on the facts in determining whether there was substantial evidence from which it would not be unreasonable for the jury to infer negligence. Similarly, in reviewing the trial judge\'s action on such a motion, the appellate court must exercise a judgment on the facts, but from a less advantageous viewpoint. In this case, for example, the testimony of one of the eyewitnesses was an elaboration of diagrams which he was drawing on a blackboard in the courtroom, and read in print the testimony is quite unintelligible. In many borderline cases, the appellate court might uphold a ruling either way, because it could not say, from a reading of the cold record, that the trial judge was clearly wrong in his judgment as to the sufficiency of the evidence. The present might indeed be such a case."

4. Of course, an honest and conscientious intermediate appellate court may possibly commit an error in its judgment on the facts, either in ruling that the plaintiff had shown enough to get to the jury, or in ruling that it was a proper case for a directed verdict for defendant. In either situation, the intermediate appellate court runs the risk of being reversed by the Supreme Court on certiorari, as has been done often enough in both situations. See Davis v. Kennedy, 1924, 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212; Baltimore & Ohio R. R. Co. v. Groeger, 1925, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Missouri Pacific R. R. Co. v. Aeby, 1928, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; Kansas City Southern Ry. Co. v. Jones, 1928, 276 U.S. 303, 48 S.Ct. 308, 72 L.Ed. 583; Atlantic Coast Line R. R. Co. v. Davis, 1929, 279 U.S. 34, 49 S.Ct. 210, 73 L.Ed. 601; Chesapeake & Ohio Ry. Co. v. Mihas, 1929, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207; Pennsylvania R. R. Co. v. Chamberlain, 1933, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Swinson v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 1935, 294 U.S. 529, 55 S.Ct. 517, 79 L.Ed. 1041; Jenkins v. Kurn, 1941, 313 U.S. 256, 61 S.Ct. 934, 85 L.Ed. 1316; Bailey v. Central Vermont Ry., Inc., 1943, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Tennant v. Peoria & Pekin Union Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Blair v. Baltimore & Ohio R. R. Co., 1945, 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490; Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Ellis v. Union Pacific R. R. Co., 1947, 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Stone v. New York, Chicago & St. Louis R. R. Co., 1953, 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441.

On the other hand, the Supreme Court may agree with the appraisal of the proven facts made by the intermediate appellate court. Western & Atlantic R. R. v. Hughes, 1929, 278 U.S. 496, 49 S.Ct. 231, 73 L.Ed. 473; Brady v. Southern Ry. Co., 1943, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Eckenrode v. Pennsylvania R. R. Co., 1948, 335 U.S. 329. 69 S.Ct. 91, 93 L.Ed. 41; Herdman v. Pennsylvania R. R. Co., 1957, 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508.

5. Whether or not the Supreme Court should have issued a writ of certiorari to bring up for review...