Zumwalt v. Gardner

• Decision Date: 04 April 1947
• Docket Number: No. 13460.,13460.
• Parties: ZUMWALT v. GARDNER.
• Court: U.S. Court of Appeals — Eighth Circuit

160 F.2d 298 (1947)

ZUMWALT v. GARDNER.

No. 13460.

Circuit Court of Appeals, Eighth Circuit.

April 4, 1947.

Ford W. Thompson, of St. Louis, Mo. (Charles P. Noell, of St. Louis, Mo., on the brief), for appellant.

Charles M. Miller, of Kansas City, Mo. (Orville Richardson, of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, THOMAS and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellant against the trustee of the Alton Railroad Company to recover damages for personal injuries suffered by him while in the employ of appellee. On trial the jury returned a verdict in favor of appellee and from the judgment entered thereon, appellant prosecutes this appeal. The parties will be referred to as they were designated in the trial court.

Plaintiff at the time of receiving his injuries was employed by defendant as a switchman and had been so employed for four or five months prior to that time. He was on duty at Venice, Illinois. In his complaint he alleged that while attempting to get on the footboard of a Diesel switch engine, it suddenly, unexpectedly, and with an unusual and violent jerk threw and knocked him from the footboard of the engine, causing him to fall so that the engine ran over him, crushing his foot and otherwise injuring him. He alleged that the action of the Diesel engine was caused (1) by the negligence of the engineer operating the engine in the application and setting of the brakes in emergency, and so as to cause a sudden, violent, unusual and unexpected jerk, or (2) the jerk was caused by a defect or defects in the main reservoirs, equalizing reservoir, brake valve, distributing valves, governor, reducing valve, feed valve, safety valve and brake cylinders, together with the various pipes, connections, cocks and couplings appurtenant thereto, causing the brakes to be defective and to be set in emergency without intention on the part of the engineer. At the trial, the court withdrew the first alleged ground of negligence from the jury, but submitted the second ground alleged to have caused the accident, to the jury.

On this appeal plaintiff seeks reversal on substantially the following grounds: (1) the court erred in rulings pertaining to the admissibility of evidence offered by plaintiff; (2) the court erred in instructing the jury; (3) the court erred in its rulings on motion for new trial.

The brief of appellant is subject to criticism in that it has been prepared in disregard of Rule 11(b) Third of this court, requiring appellant's brief to contain "A concise statement of the case in so far as is necessary for the court to understand and decide the points to be argued in the brief or orally." Appellant's so-called statement comprises forty-six printed pages and is not only lengthy but confusing, with extensive reproductions verbatim of the record. Appellee moves for a dismissal of the appeal on this ground. Rule 12(e) of this court provides that records and briefs not printed in substantial conformity with the provisions of that rule will not be accepted or filed. This, however, refers to the form and not the substance of the brief. Rule 73 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that, "When an appeal is permitted by law from a district court to a circuit court of appeals and within the time prescribed, a party may appeal from a judgment by filing with the district court a notice of appeal. Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in this rule or, when no remedy is specified, for such action as the appellate court deems appropriate, which may include dismissal of the appeal."

We think the harsh remedy of dismissal of the appeal should not be granted, and while the brief of appellant might be stricken and the cause redocketed, yet that would cause unnecessary delay, and inasmuch as sufficient can be gleaned from the brief to determine certain questions urged on this appeal, the fact that it may be insufficient in other particulars would not warrant us in dismissing the appeal.

In so far as appellant attempts to present errors in rejecting evidence, we think the points relied upon are insufficient to present specific rulings. Rule 11(b) Fourth of this court provides that appellant's brief must contain, "A separate and particular statement of each assignment of error (in criminal cases), or of each point relied upon (in civil cases), intended to be urged, with the record page thereof. If an error assigned or point relied upon relates to the admission or exclusion of evidence, the statement shall quote the evidence referred to and the pertinent objections or exceptions taken, together with the rulings of the court thereon, giving the pages of the printed record on which the quotations appear."

This rule has been flagrantly disregarded and for that reason we do not feel warranted in considering in detail the rulings complained of. An examination of the record convinces that the alleged errors were either waived or objections properly sustained, and hence, no prejudicial error appears which might be given notice even without a proper record. Kincade v. Mikles, 8 Cir., 144 F.2d 784.

The important, if not the controlling, question in this case arises with reference to the applicability of the res ipsa loquitur rule. Proof of the sudden jarring or jerking of the engine would under the circumstances disclosed present, we think, a proper case for the application of the doctrine. The engine was under the control and management of the defendant, and the occurrence as testified to by the plaintiff at least was such as in the ordinary course of things would not have happened if those who had the engine in control or management had used proper care, and if the engine had been in proper repair. Pitcairn v. Perry, 8 Cir., 122 F.2d 881; Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101; May Department Stores Co. v. Bell, 8 Cir., 61 F.2d 830, 840. Since this action is based on the Federal statutes the rule of the state courts need not be reviewed. It is practically conceded that the facts and circumstances disclosed surrounding the happening of this accident would ordinarily under proper pleadings warrant the application of the res ipsa loquitur doctrine, but it is argued that the plaintiff in effect waived his right to rely upon that doctrine by pleading specific acts of negligence. In May Department Stores Co. v. Bell, supra, an exhaustive study of this subject was made and it was concluded that under the Missouri rule an allegation of specific negligence deprives plaintiff of the right to rely upon res ipsa loquitur. It must be noted, however, that since the opinion in that case was handed down, the Supreme Court has promulgated, pursuant to congressional authority, rules of civil procedure applicable to Federal courts. In the May Department Stores case we said, "We assume, without deciding, that it is a rule relating to pleading and practice, which under the provisions of the Conformity Act (section 724, title 28, U.S.C.A.), we are bound to recognize and apply in this case."

The Federal court need not therefore concern itself as to the rules of pleading and practice in the state courts. In the May Department Stores case we, among other things, said, "The Circuit Court of Appeals of this circuit, while it has adopted the rule that a plaintiff who charges specific negligence may not have the benefit of the maxim regardless of what the evidence may show, has never gone so far as to hold that, where a plaintiff points out the specific defect in the instrumentality which caused his injury, and then charges that the existence of the defect was due to the negligence of the defendant generally, he will be deprived of the use of the maxim."

Having made specific allegations of negligence plaintiff must rely for his recovery upon the specific acts or causes alleged and can not recover for any other. This, however, does not deprive him of the benefit of the doctrine of res ipsa loquitur to establish the specific acts of negligence. The mere allegation of a specific act of negligence or a specific cause for the accident does not deprive appellant of the benefit of the doctrine so far as the specific cause of the accident is concerned. In other words, the doctrine may be invoked to establish the particular acts causing the accident alleged, just as any proof which plaintiff might seek to introduce should be limited to the establishment of the negligence alleged. Having alleged specific acts, this would relieve defendant from the burden of disproving or meeting any other negligent acts but would not deprive plaintiff of the benefit of the doctrine of res ipsa loquitur. May Department Stores Co. v. Bell, supra.

Turning now to the pleadings, it is observed that two specific causes of the accident resulting in plaintiff's injuries are pleaded in the alternative. Rule 8 (e) (2), Federal Rules of Civil Procedure, provides that, "A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses."

It is first charged that the accident was caused by the negligence of the defendant's engineer in charge of the engine. Plaintiff's testimony was to the effect that as he stepped onto the footboard and reached for the grabiron with his right hand, the engine went into an emergency stop and jarred him off backwards. This occurrence and the circumstances surrounding it furnished evidence from which the jury might have inferred negligence which if not explained or not explained satisfactorily would have supported a verdict for plaintiff. We do not mean by this that this evidence compelled a verdict for plaintiff but only that it would have warranted such a...