Page v. St. Louis Southwestern Railway Co.

• Decision Date: 22 September 1965
• Docket Number: No. 21427.,21427.
• Citation: 349 F.2d 820
• Parties: Emmett E. PAGE, Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

349 F.2d 820 (1965)

Emmett E. PAGE, Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.

No. 21427.

United States Court of Appeals Fifth Circuit.

August 10, 1965.

Rehearing Denied September 22, 1965.

Russell M. Baker, Dallas, Tex., for appellant.

Galloway Calhoun, Jr., Jack W. Flock, Tyler, Tex., Clyde W. Fiddes, Ramey, Brelsford, Hull & Flock, Calhoun & Clark, Tyler, Tex., of counsel, for appellee.

Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

Here again for the second time after a second trial, this case is not yet over. Unfortunately, we must reverse and remand for still a third trial. We must do so not because the District Judge failed to follow our pronouncements, but rather because he did. Once again it is an appeal by the Employee from an adverse judgment entered on a general verdict in an FELA case. The immediate problem is the collateral source rule and whether evidence of the receipt of a railroad pension is admissible as bearing on the likelihood that the elderly Employee would have retired even though no injury had occurred. Also raised are questions of jury instructions, including specifically whether there is a double standard of proximate causation, one as to the Employee's affirmative case and another as to the Railroad's defense of contributory negligence.

The facts of the occurrence are adequately set forth in our prior opinion. Page v. St. Louis Southwestern Ry., 5 Cir., 1963, 312 F.2d 84, 98 A.L.R.2d 639. There was no significant change either in the theories of liability and defense or the factual evidence presented. We there reversed the judgment entered on a general verdict for the Railroad because of error in the jury instruction on proximate cause.

COLLATERAL SOURCE EVIDENCE

But we affirmed the exercise of the trial Judge's discretion in admitting evidence over the Employee's objection that from about "October 7, 1959, one year after the accident," the Employee "had been drawing the sum of $160.00 per month as a pension under the Railroad Retirement Act." 312 F.2d at 94. Based largely on our prior cases of A. H. Bull Steamship Co. v. Ligon, 5 Cir., 1960, 285 F.2d 936, 937, 88 A.L.R.2d 479, and Simmons v. Union Terminal Co., 5 Cir., 1961, 290 F.2d 453, 455, we had this to say.

"In the present case, the evidence was logically relevant, it was admitted on cross-examination of the plaintiff after he had testified that he was not working because of disability resulting from the accident. The defendant claimed that the plaintiff was malingering. Under the circumstances of the present case, the district court did not abuse its discretion, or commit reversible error, in admitting the evidence of retirement and retirement benefits for the limited purposes clearly stated by the court." 312 F.2d at 94.

Believing perhaps that hope does spring eternal in the human breast — and certainly should in that of the relentless advocate — counsel for the Employee undaunted by this categorical, adverse declaration was persistent. Once again, by motion in limine, he objected to the introduction of this evidence. Not unnaturally, the District Judge adhered, confident in the view that what was once approved would again be favored. And so it would, but. The change came not from alteration of our views. Rather, the change came in double strength from the two intervening decisions of the Supreme Court in Tipton v. Socony Mobil Oil Co., 5 Cir., 1963, 315 F.2d 660, 1963 AMC 2276, reversed, 1963, 375 U.S. 34, 84 S.Ct. 1, 11 L.Ed.2d 4; and Eichel v. New York Cent., 1963, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307.

The Railroad's argument to overcome the impact of these cases runs on a double track. First, it urges, this case being the identical one formerly tried, appealed and decided, sets in train our en banc decision of Lincoln National Life Ins. Co. v. Roosth, 5 Cir., 1962, 306 F.2d 110, on the law of the case. The second is that both Eichel and Tipton are distinguishable and in any event, the Supreme Court did not intend thereby to rule out operation of the harmless error principle embodied in F.R.Civ.P. 61. As to the law of the case, Roosth took full cognizance of the principle that where the point is properly preserved for review, a different result is compelled where, subsequent to the first decision, there is an intervening change in the law by authoritative declaration of the authoritative court. Lumbermen's Mutual Cas. Co. v. Wright, 5 Cir., 1963, 322 F.2d 759, 763; Pacific American Fisheries v. Hoof, 9 Cir., 1923, 291 F. 306, cert. denied, 263 U.S. 712, 44 S.Ct. 38, 68 L.Ed. 520; Messinger v. Anderson, 1912, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152.

As to the second, we think there is no substantial basis for distinguishing this case from Eichel and Tipton. One distinction suggested is the absence of any limiting instructions in the Court's charge to the jury in Tipton in contrast to the very specific restrictions given by the District Judge here on the first trial and repeated in substantially the same terms the second time. (See 312 F.2d 84, 94) Although Tipton contained no limiting instruction, the very action in Eichel necessarily rejects the idea that limiting instruction will suffice. Caughman v. Washington Terminal Co., D.C.Cir., 1965, 345 F.2d 434.

Both Tipton and Eichel reflect a strong policy against the use of such collateral source evidence in FELA and analogous Jones Act-maritime law seamen's cases.¹ With the whole result in our case being the enigma wrapped in the mystery of a general verdict concealing forevermore the use or uses to which the jury might have put this evidence, we cannot say that the error, preserved by emphatic and timely objection, was harmless. The case must, therefore, go back for a third, and we hope last, trial.

PROXIMATE CAUSE AND CONTRIBUTORY NEGLIGENCE

Of the objections to the charge, the most serious is that directed toward the charge on causation as to the Employee's contributory negligence. Following faithfully our former deliverance and the imprimatur we therefore placed on Judge Mathis' form,² the trial Judge structured his charge so that one instruction on causation would suffice both on attack and defense. This charge was in the Rogers theme of negligent acts playing any part, no matter how slight, in bringing about the injury.³

Of course, this is what the Employee wanted, but did not get on the first trial, and actually got because of our decision. So as between the injured worker and the Railroad, he thinks this a fine and fair charge. But not so, he says, when it comes to judging causation as to asserted contributory negligence of the Employee. Here he wants the good old fashioned dialectic of proximate causation with all of its built-in metaphysical concepts of natural and unbroken sequence, but for, foreseeability of harm and the like.⁴

His reasoning is fascinating and beguiling. Whether it is more, is the question. It goes somewhat like this. As between injured worker and the railroad, the old traditional notions of proximate cause introduced a sometimes difficult, at times insurmountable, hurdle. See, e. g., Coray v. Southern Pacific Co., 1949, 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208.⁵ This led the Supreme Court by an evolutionary process briefly reviewed in our prior opinion to depart from this. It adopted the simple rule of physical causation as given here, note 3, supra. This is obviously more favorable to an injured worker, makes his judicial task easier, and as such effectuates the congressional policy behind FELA. But, the argument continues, there is no congressional policy to make the lot of the Railroad defendant an easier one or to remove any of the recognized difficulties to the successful assertion of the plea of contributory negligence. On the contrary, outlawing contributory negligence as a bar⁶ and substituting in its place the statutory doctrine of "comparative negligence"⁷ Congress must have meant to retain, not diminish, existing problems of defense on this score. The argument now reaches its climax. Since traditional proximate cause was considered to be more onerous as a standard for affirmative recovery, it is bound to be more onerous as to a railroad attempting to sustain its burden of proving employee contributory negligence. Furthermore, since no possible whisper of a trace of a congressional desire to make defense easier can be found, causation as to contributory negligence should be stated in the rigmarole of proximate cause.

Attesting again to the marvels of an advocative system which, grinding out the thousands of FELA cases in State and Federal appellate courts, nevertheless after a half century's experience under the Act still leaves new questions, this problem is very, very fresh, the materials of decision are scarce, and the score now stands 1 to 1. Texas upholds the Employee's contention,⁸ the Sixth Circuit, that asserted here by the Railroad.⁹

Many good legalistic arguments can be marshaled for either view, none however demonstrating with any assurance that at this late date we can, to paraphrase Judge Friendly,¹⁰ discern what Congress in 1908 thought about a matter on which it never thought. But even though we cannot cast it in terms of congressional purpose as a proposition of original intent, we still have the task of construing the Act and fashioning a rule to be followed. In this approach, we think the better rule is one of a single standard.

As to both attack or defense, there are two common elements, (1) negligence, i. e., the standard of care, and (2) causation, i. e., the relation of the negligence to the injury. So far as negligence is concerned, that standard is the same — ordinary prudence — for both Employee and Railroad alike. Unless a contrary result is imperative, it is, at best, unfortunate if two standards of causation are used. We think there are several reasons why substantively there is no such imperative.

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