conflicts in the evidence as to negligence which the jury might have to resolve, and in the resolution of which the jury might have to speculate, as suggested in Lavender v. Kurn, supra (327 U.S. 645, 653, 66 S. Ct. 740, 90 L. Ed. 916). But here where there is no conflict and a total failure of proof, the jury would have no probative evidence on which to base its verdict and would have to substitute speculation, which it may not do, as the Court said in Galloway v. United States, supra (319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458).'
Similarly in Eckenrode v. Pennsylvania R. Co., 3 Cir. 1947, 164 F.2d 996, and in Fantini v. Reading Co., 3 Cir. 1944, 147 F.2d 543, certiorari denied 325 U.S. 856, 65 S. Ct. 1185, 89 L. Ed. 1976, verdicts were directed where there was a failure by plaintiff to present any evidence from which negligence in whole or in part and proximate cause could reasonably be inferred.
Notwithstanding the invariable custom and without evidence to the contrary, plaintiff's counsel contends it was negligence to send the plaintiff to clean the car before it was repaired, and again in the failure of the foreman to point out to plaintiff the precise location of the hole. Plaintiff was bound to exercise ordinary care and prudence to avoid injury to herself. Defendant was not obliged to anticipate or foresee that plaintiff would walk backwards and fail to look where she was going. To hold that under the circumstances defendant's alleged failure on this ground was negligence would be unreasonable. This case is unlike Terminal R. Ass'n etc. v. Howell, supra, because there the evidence showed a hidden danger, superior knowledge in the foreman, and a failure to warn. Here there was an obvious hole, apparent as well to plaintiff, an experienced helper, as to the foreman. In view of the ruling in Brady v. Southern R. Co., 1943, 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239, we feel on this ground plaintiff did not meet the test as stated in Tennant v. Peoria & P.U.R. Co., 1944, 321 U.S. 29, 32, 64 S. Ct. 409, 411, 88 L. Ed. 520, and Myers v. Reading Co., supra, in that she failed to present 'probative facts from which * * * negligence and * * * causal relation could reasonably be inferred.' We are therefore of the opinion that the question of defendant's alleged failure to furnish a safe place of work should not have been submitted to the jury.
As to plaintiff's second ground -- generally an employer has a duty to furnish his employee reasonably sufficient help. Blair v. Baltimore & O.R. Co., supra; Labatt op. cit. supra, Section 1107; Chesapeake & O.R. Co. v. Winder, 4 Cir. 1928, 23 F.2d 794; Albright v. Pennsylvania R. Co., D.C.M.D. Pa. 1936, 16 F.Supp. 281; Deere v. Southern Pac. Co., 9 Cir. 1941, 123 F.2d 438, certiorari denied 315 U.S. 819, 62 S. Ct. 916, 86 L. Ed. 1217. Defendant's failure in this regard must be not only negligence but also the proximate cause of the injury. Deere v. Southern Pac. Co., supra.
On this motion we must assume two persons were assigned on all previous occasions; that there was danger of the pieces springing into the air if the end was caught; that there was danger to plaintiff requiring her to watch carefully thus distracting her attention from her surroundings; that plaintiff pulled one piece at a time and walked as she indicated. In other words, we must not weigh the evidence or consider the contradictory and conflicting evidence, and must give to plaintiff every inference which might reasonably be drawn therefrom. As to plaintiff's contributory negligence, unless it was the sole cause of the injury it can be considered only in reducing the amount of the recovery. 45 U.S.C.A. § 53; Eiseman v. Pennsylvania R. Co., 3 Cir. 1945, 151 F.2d 222. The defendant would be liable if its negligence was only 'in part' responsible.
While we have found no negligence as to the place of work, as such, we cannot in the light of the decisions heretofore discussed, there being evidence of a safer method than that employed, say that it would be unreasonable for a jury to find that plaintiff's negligence was not the sole cause of the accident. The jury could well have considered her conduct as a contributing rather than a superseding cause. Palum v. Lehigh Valley R. Co., supra.
Galloway v. United States, supra, 319 U.S.at page 395, 63 S. Ct.at page 1089, 87 L. Ed. 1458, states that in determining the measure of evidence necessary to sustain the burden of plaintiff in a given case 'The matter is essentially one to be worked out in particular situations and for particular types of cases.' As to this type of case, the Supreme Court decisions emphasize that the scope of jury inference must be liberally and not narrowly viewed. Lukon v. Pennsylvania R. Co., 3 Cir. 1942, 131 F.2d 327 at page 329; Chicago & N.W.R. Co. v. Green, 8 Cir. 1947, 164 F.2d 55 at page 59. Applying that test we cannot find error in submitting this question to the jury.
Although there was no specific finding by the jury as to this ground, we must consider it as being included in the general verdict. Defendant's motion for directed verdict will therefore be denied.
In considering the motion for a new trial a different test must be applied. Here we must consider the testimony as a whole and weigh the evidence. Defendant contends that to assign two persons under the circumstances related by plaintiff, i.e., one person on each end of a band, would not be the exercise of reasonable or ordinary care, but, on the contrary, dangerous. Further, that it was a relatively small, light job, there being only 25 to 30 pieces, 5 or 6 small pieces of which were thrown out by plaintiff on her first trip; the remainder, all bent and 'doubled up' were in a 5 to 7 foot space at the end of the car; if there was a large quantity or a time factor involved, two persons would be assigned, depending upon the labor supply, but that this decision was in no manner based upon a safety element. In fact, says defendant, plaintiff admitted on the stand that where two were assigned they sometimes worked separate ends of the car and at other times 'pulled together'. Defendant's foreman said he not only told plaintiff there was a hole in the car but also told her to be careful.
Defendant moves for a new trial on the ground that the verdict was against the evidence and the weight of the evidence, and that the amount of the verdict was pure speculation and not based on the evidence before the jury.
After ten days, defendant, as an additional ground for a new trial, submitted five statements, not in affidavit form, one each from the persons named by plaintiff as having previously assisted her; the statements being to the effect that the work was not done and that those persons had never worked as plaintiff indicated. Because defendant did not comply with the requirements of the Federal Rules of Civil Procedure, rule 59(b, c), 28 U.S.C.A.following section 723c, we cannot consider the contents of such statements but must determine defendant's motion as if the statements had not been presented.
There was no mention in the complaint or in plaintiff's deposition of the need of a helper or of defendant ever having furnished a helper on previous occasions. When the idea of a helper was first mentioned by plaintiff it was offered to show failure to furnish a safe place to work; later to negative contributory negligence, and finally, when plaintiff was about to rest her case, as a separate ground of negligence. Of course, plaintiff can move to amend to conform to the proof offered at the trial.
Here, however, defendant objected to the amendment at such a 'late hour' in the proceedings, defendant having had no warning or notice that it would be obliged to meet such a question, particularly in view of a previous order of court requiring rather complete discovery. Whereupon, plaintiff's counsel stated, 'As far as notice is concerned, or ability to defend at this point against it, the defendant, I believe, has in court the same people who would testify on that issue as are or were required to testify on the issues previously squarely raised' (N.T. 113). Defendant did not press his plea of surprise and request a continuance. On direct testimony plaintiff intimated Mr. Mathieu had assigned help to her on previous occasions. Mathieu denied it. It was not until after defendant had closed its evidence that plaintiff was called as in rebuttal and then for the first time testified that two others, not in court, had assigned help to her previously, and named five persons, not in court, who had been thus assigned
The jury in its verdict apparently considered plaintiff as having been permanently injured and allowed damages therefor, notwithstanding one of plaintiff's doctors said there was no connection between plaintiff's physical condition at the time of the trial and the injury (N.T. 85). The other physician testified (N.T. 96), 'She may have had aggravation by something else that I know nothing about * * * .'; that if she had taken a few more treatments as recommended by him her discomfort would have been removed, and at all events that plaintiff's distress and discomfort should not last more than approximately six months after the accident. Plaintiff resumed work on the day of the accident and continued working with few exceptions, everyday for a period of approximately two months. On direct examination of plaintiff by her own counsel the record (N.T. 44) shows the following:
'Q. How do you feel? Have you recovered completely? A. Yes, sir.'
'Where there is substantial evidence in support of plaintiff's case, the judge may not direct a verdict against him, even though he may not believe his evidence or may think that the weight of the evidence is on the other side; for, under the constitutional guarantee of trial by jury, it is for the jury to weigh the evidence and pass upon its credibility. He may, however, set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or is based upon evidence which is false; for, even though the evidence be sufficient to preclude the direction of a verdict, it is still his duty to exercise his power over the proceedings before him to prevent a miscarriage of justice.' Garrison v. United States, 4 Cir., 1932, 62 F.2d 41, 42. 'The exercise of this power is not in derogation of the right of trial by jury but is one of the historic safeguards of that right.' Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 1941, 122 F.2d 350, 353; United States v. Robinson, D.C. Dist. of Col., 1947, 71 F.Supp. 9; Adams v. United States, 7 Cir., 1940, 116 F.2d 199, 202; Mt. Adams & E.P. Inclined R. Co. v. Lowery, 6 Cir., 1896, 74 F. 463, 470. In the latter case In 74 F.at page 471, the case of Norris v. Freeman, 3 Wils. 39, is cited for the proposition: "There are many cases where the court will grant new trials notwithstanding there was evidence on both sides, as where all the light has not been let in at the trial which might and should have been."
' * * * so long as the law is that the defendant must be negligent for the plaintiff to recover for his injuries it is our responsibility to apply the negligence test honestly * * * .' Eckenrode v. Pennsylvania R. Co., supra, 164 F.2d at page 1000.
Because we feel that the verdict was against the evidence and the weight of the evidence, and feeling that 'all the light has not been let in at the trial which might and should have been', a new trial will be awarded.