Southern Pac. Co. v. Ralston, 688.
Decision Date | 23 November 1933 |
Docket Number | No. 688.,688. |
Citation | 67 F.2d 958 |
Parties | SOUTHERN PAC. CO. v. RALSTON. |
Court | U.S. Court of Appeals — Tenth Circuit |
Paul H. Ray, of Salt Lake City, Utah (E. M. Bagley and Robert L. Judd, both of Salt Lake City, Utah, on the brief), for appellant.
Willard Hanson, of Salt Lake City, Utah (Lindsay R. Rogers, of Salt Lake City, Utah, on the brief), for appellee.
Before McDERMOTT and BRATTON, Circuit Judges, and SYMES, District Judge.
A rehearing was granted in order to examine more closely into that part of the Federal Employers' Liability Act § 1 (45 US CA § 51), which imposes liability upon interstate carriers for injuries "resulting in whole or in part from the negligence" of their employees. The controlling authorities cited in the petition for rehearing convince us that the question of whether plaintiff's injury resulted "in whole or in part" from the fireman's negligence in failing to obey the signal to stop, which plaintiff now testifies he gave, was for the jury to determine, and the last paragraph of the first opinion is withdrawn.
Plaintiff concedes that the trial court did not submit the question of causation to the jury, and vigorously asserts that the evidence conclusively shows that the fireman's negligence resulted in the injury, if the jury found the signal was given in time to stop.
With this assertion we do not agree. Proximate cause, and causation under the statute, are questions of fact and should not be withdrawn from the jury if reasonable men may reach different conclusions from the evidence. Prinsen v. Travelers' Protective Association (C. C. A. 10) 65 F.(2d) 841. Counsel for plaintiff vigorously and sincerely assert that the proof conclusively establishes causation; counsel for defendant as vigorously and sincerely assert that the proof conclusively establishes a break in the chain. Upon the first hearing, the judges differed on the question. That such is the case is strong evidence that reasonable men may differ on the point. Travelers' Insurance Company v. Bancroft (C. C. A. 10) 65 F.(2d) 963, certiorari denied, 54 S. Ct. 103, 78 L. Ed. ___.
Under the common law, a negligent act is not deemed the proximate cause of the injury when there is a responsible intervening cause which was not itself reasonably foreseeable. See authorities in original opinion herein; also, opinion of Judge Lewis in Chicago, R. I. & P. Ry. v. Fanning (C. C. A.) 42 F.(2d) 799, 803; Snider v. Sand Springs Railway (C. C. A. 10) 62 F.(2d) 635, 638. To these decisions we adhere.
While the Federal Employers' Liability Act (45 USCA §§ 51-59) has relaxed the rule, it has not so far done away with it as to hold an employer in damages if there is no other connection between the negligence and the injury than that if there had been no neglect, there would have been no injury, i. e., there must be more in the case than that the negligence preceded the injury, and created a situation in which the accident, otherwise caused, resulted; there must be some degree of causation established before there may be a recovery. Davis v. Wolfe, 263 U. S. 239, 44 S. Ct. 64, 68 L. Ed. 284; Lang, Adm'x of Lang, v. New York Cent. R. Co., 255 U. S. 455, 41 S. Ct. 381, 65 L. Ed. 729; Minneapolis & St. Louis R. Co. v. Gotschall, 244 U. S. 66, 37 S. Ct. 598, 61 L. Ed. 995; Louisville & Nashville R. Co. v. Layton, 243 U. S. 617, 37 S. Ct. 456, 61 L. Ed. 931; St. L. & S. F. Ry. Co. v. Conarty, 238 U. S. 243, 249, 35 S. Ct. 785, 59 L. Ed. 1290; Davis v. Hand (C. C. A. 8) 290 F. 73; Chicago, M. St. P. & P. R. R. Co. v. Linehan (C. C. A. 8) 66 F.(2d) 373. To what extent the common law rule has been relaxed by the Federal Employers' Liability Act is not entirely clear. In Union Pacific Ry. Co. v. Hadley, 246 U. S. 330, 38 S. Ct. 318, 319, 62 L. Ed. 751, the Supreme Court said:
In Spokane & Inland E. R. Co. v. Campbell, 241 U. S. 497, 510, 36 S. Ct. 683, 689, 60 L. Ed. 1125, the court held:
We conclude, upon this branch of the case, that the jury should have been left to determine the question of causation under a charge substantially to the effect that the burden was on the plaintiff to prove that the plaintiff's injury resulted in whole or in part from the negligence alleged. The defendant also is entitled to have its theory that the sole responsible cause of the injury was the negligence of plaintiff, or the negligence of the automobile driver, or their concurrent negligence, presented to the jury. The jury can then determine whether the fireman's negligence played any substantial part in the ensuing accident.
Defendant urges that the physical facts conclusively demonstrate that under plaintiff's own version of the accident his injury could have been avoided by the simple act of stepping off the locomotive after it became apparent that his signal to stop was not being heeded. Whether plaintiff's failure in this respect was the sole cause of his injury, whether it contributed with the negligence of the defendant or the automobile driver or both, or whether he assumed the risk attendant upon the situation, are questions of fact and were submitted to the jury. Objections to the charge in these respects are urged; since the case must be tried again, they need not be considered. The objections go to the form and not the substance of the familiar law governing these subjects, and the learned trial Judge doubtless will experience no difficulty upon another trial in...
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