Terminal R. Ass'n of St. Louis v. Staengel

• Citation: 122 F.2d 271,136 ALR 789
• Decision Date: 10 November 1941
• Docket Number: No. 11935.,11935.
• Parties: TERMINAL R. ASS'N OF ST. LOUIS v. STAENGEL.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

136 ALR 789, 122 F.2d 271 (1941)

TERMINAL R. ASS'N OF ST. LOUIS v. STAENGEL.

No. 11935.

Circuit Court of Appeals, Eighth Circuit.

July 30, 1941.

Rehearing Denied August 30, 1941.

Writ of Certiorari Denied November 10, 1941.

COPYRIGHT MATERIAL OMITTED

Arnot L. Sheppard, of St. Louis, Mo. (Carlton S. Hadley and Walter N. Davis, both of St. Louis, Mo., on the brief), for appellant.

Roberts P. Elam, of St. Louis, Mo. (Mark D. Eagleton, of St. Louis, Mo., on the brief), for appellee.

Before STONE, WOODROUGH, and JOHNSEN, Circuit Judges.

Writ of Certiorari Denied November 10, 1941. See 62 S.Ct. 181, 86 L.Ed. ___.

STONE, Circuit Judge.

This is an appeal by defendant from a judgment for plaintiff in a personal injury action brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60.

Two issues are submitted here. The first has to do with submission of the case to the jury under the res ipsa loquitur doctrine and, particularly, in view of appellant's contention that its evidence compelled a directed verdict for it. The second concerns application of Rule 51 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

I. Submission to the Jury.

This issue involves examination of the fact situation. A very concise outline of how this accident occurred is as follows. Plaintiff had been employed by defendant for many years as a switchman in its yards. Sometime after nine o'clock on the night of October 20, 1939, he was acting as rear switchman on a string of twenty odd freight cars being hauled from East St. Louis, Illinois, to defendant's Ewing Avenue switch yards in St. Louis, Missouri. He was sitting on an end sill at the rear end of the last car — which was an unusually long car heavily loaded with sand. In the course of its movement through the St. Louis yards before reaching the Ewing Avenue yards, the switch train was routed over the main line track (track 72) crossing various tower controlled and operated switches, one of which was known as switch 13. This switch connected a track leading to the 11th Street yards with main track 72. The various switches, including 13, were lined for this train so that it would go along track 72. Going at 20 to 25 miles per hour, all of the train passed over switch 13 on track 72 except the rear trucks of this last car (on which plaintiff was riding). When those trucks reached this switch, the wheels thereof went along the 11th Street track instead of following the train which had gone along track 72. With its front trucks on track 72 and its rear trucks on the 11th Street track, this rear car was caused to move increasingly sidewise for a few car lengths until it struck a steel pier (between these two tracks) supporting an elevated structure. When the rear trucks started along the 11th Street track at the switch, plaintiff noticed the "sign" (switch signal light) was set for the 11th Street track, which indicated that the switch was set for that track. Knowing the train should go along track 72, he realized that something was wrong and started to get up. Before he could do so, the car struck the pier, throwing him violently to the ground with the resultant injuries in suit here.

Appellant places its contention that a verdict should have been directed upon two bases: (1) that this is not a res ipsa loquitur case; (2) that, even if this be a res ipsa loquitur case, the entire evidence justified such direction since the evidence by appellant conclusively rebutted the inference or presumption raised by the prima facie case made by appellee.

(1) Res Ipsa Loquitur Case. If the legal relationship between the parties is (as here) such as to authorize, whether a case is one to which the rule of res ipsa loquitur is properly applicable depends upon the character of the occurrence causing the injury. The rule is applicable if the thing causing the injury was, at the time, under the exclusive control of defendant and the occurrence was such as, in the ordinary course of things, does not happen if the one having such exclusive control uses proper care (San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 98, 32 S.Ct. 399, 56 L.Ed. 680).

Tested by the above considerations on the fact situation above outlined, this is a res ipsa loquitur case. This is directly ruled by Southern Railway Co. v. Bennett, 233 U.S. 80, 34 S.Ct. 566, 58 L. Ed. 860, which was a suit under the Federal Employers' Liability Act for the death of an employee (an engineer) by the falling of his engine through a burning trestle. It was there held that injury to an employee resulting from "defective instrumentalities" (page 85 of 233 U. S., page 566 of 34 S.Ct., 58 L.Ed. 860) could be recovered under the Act under the res ipsa loquitur rule. That is the precise situation here.

(2) Appellant's (defendant's) evidence compelled directed verdict. On this issue, appellant presents (a) a preliminary argument that verdict for defendant may be directed in a res ipsa loquitur case; and, then, (b) that its evidence here compelled such direction.

(a) The rule of law applicable here is to be found in the three cases, in this Court, of Dierks Lumber & Coal Co. v. Brown, 8 Cir., 19 F.2d 732; Southern Ry. Co. v. Hussey, 8 Cir., 42 F.2d 70, 74 A.L.R. 1172, and May Department Stores Co. v. Bell, 8 Cir., 61 F.2d 830.

As to whether a verdict may ever be directed for defendant in a res ipsa loquitur case, there is no precise decision in the Supreme Court. In this Court, the question is directly ruled in the Brown, Hussey and Bell cases. The Brown case declared that a verdict might be directed for defendant in a res ipsa loquitur case and such direction was, therein, ordered.¹ The Hussey and Bell cases made the same declaration but refusal to direct a verdict in each of those two cases was approved by this Court.

As to when a verdict should be so directed, the above three cases have announced the rule. As expressed in the Hussey case, 42 F.2d at pages 73, 74, it is as follows:

"In many jurisdictions it seems that no directed verdict can be made in such a case and that rule has been weakened only slightly in this circuit. In the case of Dierks Lumber & Coal Co. v. Brown, 8 Cir. 19 F.2d 732, this court said that the presumption arising from the doctrine of res ipsa loquitur would take the case to the jury `unless the entire evidence is such that the presumption cannot stand against it,' and the case was reversed there on the ground that the circumstances of that case clearly rebutted the presumption. The controlling issue in that case was whether the defendant had known of a defect in its electric wiring system long enough to remedy the same and the evidence of the plaintiff showed clearly that the defect had not existed as much as an hour and that it was such character of defect as not to manifest itself before the accident. In short, it is not enough that the evidence of the defendant would, if true, be sufficient to rebut the presumption, because it is for the jury to pass upon the credibility of the witnesses and the truth of the testimony, but the circumstances must be such that no jury would be justified in rejecting such evidence and no court in sustaining a verdict so doing." (Italics inserted except as to word "plaintiff".)

While this particular matter was not determined therein, yet the situation in Southern Railway Co. v. Bennett, 233 U. S. 80, 34 S.Ct. 566, 58 L.Ed. 860, throws a useful sidelight on the impressive showing which a defendant must make in a res ipsa loquitur case. In that case, the defendant "offered precise evidence" (page 86 of 233 U.S., page 567 of 34 S.Ct., 58 L. Ed. 860) which, if believed, would have exculpated defendant but the case was held to be for the jury. Also, in the Hussey and the Bell cases, the same character of evidence was introduced by defendant and each case was held submissible. In the Dierks case, it was the evidence by plaintiff which was the sole basis for declaring the case not submissible (see comment on the Dierks case in Southern Ry. Co. v. Hussey, 8 Cir., 42 F.2d at page 73).²

(b) Does this evidence compel directed verdict? The inquiry is whether all the evidence here is so conclusive as to lack of negligence by defendant that, under the above rules of decision, a verdict should have been directed. If so, the evidence must furnish "an explanation" (San Juan Light & Transit Co. v. Requena, supra, 224 U.S. page 99, 32 S.Ct. page 401, 56 L.Ed. 680) of the occurrence which is so compelling that no verdict to the contrary should be allowed to stand.

The essentials of the evidence, not repeating that stated earlier in this opinion, are as follows: This switch was set for track 72 when the train entered it. All of the train passed over it onto track 72 except the rear trucks of the last car. Between the momentary time the front trucks of this last car passed over the switch and the rear trucks reached it, the switch changed to the 11th Street track. The foregoing is the evidence by both parties and by the physical facts. The evidence of defendant was that a few minutes after the accident, the switch was found set for track 72 and that no control had been or could have been exercised over the switch from the control tower after a part of the train passed this switch and entered on track 72. That the switch was operated solely from the tower by levers influencing a pneumatic device at the switch. That the switch was automatically locked by an electric circuit while a train was passing over it and as long as any part of the train was on the track 72 circuit connected to this switch. That this circuit extended for 300 feet beyond the switch. That the circuit might be insulated by sand on the rails but that such insulation would have to be for all wheels on one rail for the entire length of the train in the circuit. That the switch operated perfectly before and after this occurrence without repair and was found in entire working order upon inspection made...