Weigand v. Pennsylvania Railroad Company

• Decision Date: 20 May 1959
• Docket Number: No. 12789.,12789.
• Citation: 267 F.2d 281
• Parties: George S. WEIGAND, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, a Corporation.
• Court: U.S. Court of Appeals — Third Circuit

267 F.2d 281 (1959)

George S. WEIGAND, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, a Corporation.

No. 12789.

United States Court of Appeals Third Circuit.

Argued April 10, 1959.

Decided May 20, 1959.

Samuel L. Goldstein, Pittsburgh, Pa. (Alexander L. Suto, Suto, Power, Goldstein & Walsh, Pittsburgh, Pa., on the brief), for appellant.

Bruce R. Martin, Pittsburgh, Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

In this Federal Employers' Liability action the single point on appeal is whether the trial court erred in denying plaintiff's request to charge res ipsa loquitur.

Plaintiff, employed as a freight conductor by the railroad defendant, while walking from the Wilkinsburg, Pennsylvania, yard office of the defendant across its property towards his train, stepped into a space between intervening railroad tracks. As he did the ground beneath him suddenly gave way and he fell into a circular hole about three feet in diameter and from five to six feet deep. He sustained personal injuries and thereafter sued his employer under the Act, 45 U.S.C.A. § 51 et seq.

Without detailing them at length here, the facts embraced within them a res ipsa loquitur situation. The complaint as drawn would permit that sort of proof. That the facts pointed to the occurrence warranting an inference of negligence was indicated at the pre-trial conference when, after plaintiff's counsel had said that, in addition to the factual witnesses, he would produce an engineer on the subject of drainage, the pre-trial judge queried, "Do you have to do that, if the ground gave way? However, it is up to you. The ground isn't supposed to give way under a man." Plaintiff's counsel answered, "Maybe I should show the reason." The judge replied, "O.K. You are going to have witnesses. All right * * *."

Plaintiff's points for charge were given the court the evening before summations and charge. The next morning the judge went over these with counsel. The sixth point read 166 F.Supp. 845:

"6. The jury is instructed that if they find that the management and control of the defendant railroad yard was exclusively in the control of the defendant and/or its agents, servants or employees, and that the collapse of the track bed or ground was the cause of the plaintiff\'s injuries, then it is incumbent upon the defendant to come forward with evidence to explain the cause of such collapse and that the defendant exercised due care on its part in providing plaintiff with a safe place in which to work. (Eckman v. Bethlehem Steel Co., 387 Pa. 437, at pages 439 and 440 128 A.2d 70.)"

As to this point defense counsel said:

"Now the sixth point, Your Honor, I don\'t agree with it as stated. I think what he is trying to say is the rule of the exclusive control, where you have a situation where the instrumentality is in the exclusive control and the accident is such as in the ordinary course of things does not happen, if the management used proper care. It affords reasonable evidence, in the absence of explanation, that the thing came about through negligence. Now, that is not what the point says —"

The court ruled: "I refuse point 6 as written, and note an exception to the plaintiff." (Emphasis supplied.)

Pausing here, it seems to us that while the point could have been more artistically drawn it adequately presented the res ipsa doctrine for the purposes of the particular trial. It is substantially founded on the Eckman decision of the Pennsylvania Supreme Court which followed Mack v. Reading Company, 1954, 377 Pa. 135, 103 A.2d 749, 41 A.L.R.2d 927 in holding "* * * that the exclusive control doctrine is to be applied only where evidence as to cause is peculiarly or exclusively in the possession of the defendant and not equally available to both parties. The doctrine is purely a rule of evidence determining whose task it is to produce evidence, or, as Professor Wigmore has phrased it, `who has the risk of non-persuasion': Dillon v. William S. Scull Co., 164 Pa.Super. 365, 64 A.2d 525. `"Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."' Mack v. Reading Company, supra, 377 Pa. at page 139, 103 A.2d at page 751." 387 Pa. 437, 128 A.2d 72

The federal doctrine of res ipsa loquitur is the same and the request was generally in accord with it. Sweeney v. Erving, 1913, 228 U.S. 233, 240, 33 S.Ct. 416, 57 L.Ed. 815; Sweeting v. Pennsylvania R. Co., 3 Cir., 1944, 142 F.2d 611.

The opinion of the trial judge on plaintiff's motion for a new trial tends to confirm the fundamental rightness of the point. The court there abandons any suggestion that it was improperly stated and puts the refusal to charge it solely and squarely on the ground that this was a case

"* * * where the plaintiff elects not to rest on the doctrine alone but pleads and proves specific acts of negligence and the defendant offers proof to exculpate itself from fault."

The court went on to frankly state that:

"I have given most thorough study to the facts of the accident as evinced in the record, and I believe that the circumstances necessarily conform to the requirements of res ipsa loquitur doctrine. The undisputed facts eliminate the element of plaintiff\'s own fault, establish sole control of the thing which caused the accident in the defendant, and compels the unavoidable conclusion that the injury is such that in the ordinary course of things would not occur if one having such control would exercise proper care.

* * * * * *

"If the plaintiff had elected, as suggested by the pre-trial judge, or if the matter had been presented to the trial judge, the proof of the happening of the accident under the circumstances which were not disputed would have in itself required and justified the submission of the case to the jury under the res ipsa loquitur doctrine.

"However, for reasons not presented to the court, plaintiff elected to try the proceedings by not relying solely on the doctrine, and offered evidence to establish specific acts of negligence on the part of the defendant."

The court commenting regarding the complaint said:

"Plaintiff\'s complaint alleged specific acts of negligence and in addition thereto plead defendant\'s negligence generally, and introduced proof of alleged specific acts of negligence."

It characterized the problem as follows:

"The question is raised as to where a plaintiff alleges specific acts of negligence and in addition thereto has pleaded defendant\'s negligence generally, and in trial introduces evidence to establish specific acts of negligence on defendant\'s part, assuming that the doctrine is otherwise applicable, whether or not such proof and specific pleading will deprive plaintiff of the benefit of the doctrine."

And held:

"* * * if plaintiff alleges negligence specifically and generally, and produces evidence of specific acts of negligence, he is thereby precluded from relying on the inferences permissible and benefit of the doctrine."

Though we disagree with his conclusion we very much like the way in which the trial judge, as above quoted, courageously and sharply defines the true issue.

Under the settled law, if plaintiff's proofs had established the exact accident cause in a res ipsa loquitur situation, no election would be possible. The claim necessarily would stand or fall on the defense control theory. However, we have before us not only a res ipsa claim but one capable of some specific proof regarding the railroad's alleged negligence. In these peculiar circumstances to force the plaintiff to abandon one of his theories is not only illogical but unfair. Whichever he chose might fail and the discarded contention might have convinced the jury. In this instance the specific proof did not satisfy the jury. And from the tenor of the jury's inquiry to the court and its verdict,¹ having in mind the charge,² if point 6 had been given the jury and the two grounds for recovery carefully outlined, a verdict in favor of the plaintiff is not seen to have been beyond possibility.

The mechanics of clearly presenting both sets of principles offers no great task to the fine type of experienced district judge who tried this suit. Indeed it was only because he considered an election made necessary by the offer of particular negligence evidence that he finally eliminated res ipsa loquitur from the cause of action.

We have found no decision nor has our attention been called to any which would make an election between resting on the res ipsa loquitur doctrine or establishing specific negligence mandatory under circumstances akin to...