Stillman v. Norfolk & Western Ry. Co.

• Decision Date: 17 February 1987
• Docket Number: No. 86-1105,86-1105
• Citation: 811 F.2d 834
• Parties: 22 Fed. R. Evid. Serv. 818 Carl R. STILLMAN, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 834

811 F.2d 834

22 Fed. R. Evid. Serv. 818

Carl R. STILLMAN, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, a corporation, Defendant-Appellee.

No. 86-1105.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 11, 1986.

Decided Feb. 17, 1987.

Michael Lewis Weiner (Donald L. Rudquist, DeParcq, Perl, Hunegs, Rudquist & Koenig, Minneapolis, Minn., William N. Nexsen, Stackhouse, Rowe & Smith, Norfolk, Va., on brief), for plaintiff-appellant.

Douglas Tucker Jenkins, Norfolk, Va. (Edward L. Oast, Jr., William T. Prince, Williams, Worrell, Kelly & Greer, Norfolk, Va., on brief), for defendant-appellee.

Before WIDENER, PHILLIPS and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

Plaintiff Carl Stillman appeals from the district court's denial of his motions for judgment n.o.v. or a new trial following a jury verdict in favor of the Norfolk & Western Railway Company (the "Railroad") in this action brought under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq. (1982), (the "FELA"). Stillman contends that the district court committed numerous errors that entitle him to judgment n.o.v. or, at the least, a new trial. Because we find no error in the proceedings below, we affirm the judgment of the district court.

Stillman was employed by the Railroad as an apprentice carman. His job included installing large, heavy gears in railroad cars. The gears were installed by means of a forklift. The gears were attached to a chain, which was hooked to the blades of a forklift, and the forklift was used to lift the gears and place them in the railroad cars.

On February 29, 1982, Stillman was injured while installing a gear in a railroad car. While the gear was suspended from the blades of a forklift, the forklift quit operating and would not move up or down. With the gear still suspended from the forklift, Stillman placed himself partly under the forklift blades and took hold of the chain in an attempt to free the chain from the blades. At this point, the blades fell on Stillman and injured him.

After the trial of Stillman's FELA claim, the jury returned a verdict for the Railroad, finding in response to a special interrogatory that the Railroad had not been negligent. Stillman moved for judgment n.o.v. or a new trial, but the district court denied his motions.

Stillman's primary argument is that the district court erred in refusing to grant a directed verdict or judgment n.o.v. in his favor based on application of the doctrine of res ipsa loquitur. We find this argument to be without merit.

The FELA provides that employers covered by the Act shall be liable to employees who suffer injury as the result of an employer's negligence. 45 U.S.C. Sec. 51 (1982). As in ordinary negligence cases, the doctrine of res ipsa loquitur may be applied in FELA cases to permit an inference of negligence on the part of the employer. See, e.g., Jesionowski v. Boston & Maine Railroad, 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416 (1947). In order for res ipsa loquitur to be applied, three conditions must be met: (1) the injury for which the plaintiff seeks recovery must be of a kind that ordinarily does not occur in the absence of negligence; (2) the injury must have been caused by some agency or instrumentality within the exclusive control of the defendant; and (3) the injury must not have been due to any contribution or voluntary activity on the part of the plaintiff. See, e.g., Jesionowski, 329 U.S. at 456, 67 S.Ct. at 403; Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1437 (9th Cir.1983); Dugas v. Kansas City Southern Railway Lines, 473 F.2d 821, 824 (5th Cir.), cert. denied, 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56 (1973).

Based on our review of the record in this case, we are not convinced that the doctrine of res ipsa loquitur properly could be applied to the facts giving rise to Stillman's injury. Stillman himself testified that immediately before the forklift blades fell on him, he had placed himself partially under the blades and had taken hold of the chain attached to the blades in an attempt to free the chain from the blades. Thus, Stillman's own testimony reveals that the instrumentality which injured him was not within the Railroad's exclusive control at the time of the accident; Stillman himself had at least partial control over the chain and the forklift blades at the time the blades fell on him. In the absence of exclusive control by the Railroad over the instrumentality that injured Stillman, the doctrine of res ipsa loquitur could not properly be applied to create an inference of negligence on the part of the Railroad.

Moreover, even if res ipsa loquitur properly could be applied in this case, any resulting inference of negligence would not be strong enough to support a directed verdict or judgment n.o.v. in favor of Stillman. In a leading case applying the doctrine of res ipsa loquitur to a FELA claim, the Supreme Court observed that

"res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict."

Jesionowski, 329 U.S. at 457, 67 S.Ct. at 404 (quoting Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815 (1913)). Thus, as the Jesionowski Court recognized, application of res ipsa loquitur permits, but ordinarily does not compel, an inference of negligence on the part of the defendant. A res ipsa loquitur inference of negligence can get the plaintiff to the jury, but it will not support a directed verdict or judgment n.o.v. for the plaintiff unless the inference of negligence is so clear that no reasonable man could fail to accept it, and the defendant offers no evidence to rebut the inference. See W. Prosser, Handbook of the Law of Torts Sec. 40, at 229-30 (4th ed. 1971).

In this case, any inference of negligence on the part of the Railroad that would arise from application of the doctrine of res ipsa loquitur is not so clear that no reasonable man could fail to accept it, because, as noted previously, the instrumentality that injured Stillman was not within the exclusive control of the Railroad at the time the accident occurred. Furthermore, the Railroad offered evidence that it had exercised reasonable care to rebut any inference of negligence that might have arisen. Stillman's gang supervisor J.V. Moore testified that the forklift operators check the forklift brakes and mechanisms before beginning each tour of duty. Both Moore and supervisor D.D. Collins testified that if a defect is discovered in a forklift, the forklift is taken out of service and is not returned to service until the defect is repaired. In addition, Collins testified that the forklifts are periodically lubed, oiled, and checked out.

Under these circumstances, we think that the district court correctly permitted the jury to decide this case. Contrary to Stillman's contention, the doctrine of res ipsa loquitur could not properly be applied to the facts of this case to allow the district court to overturn the jury's verdict and enter judgment n.o.v. for Stillman.

Stillman also argues that the district court committed prejudicial error in excluding his proffered testimony concerning a safer, alternative way to install gears in railroad cars. At trial, Stillman sought to testify that there was an alternative way to install gears in railroad cars using overhead cranes that would have been safer than the Railroad's practice of using forklifts. Before counsel for the Railroad objected, Stillman presented...