there, as far as the fireman could discern, any unusual jerking motion in its operation.
The deceased was the only person in charge of the movements of the crane and it was his responsibility for setting the boom at the proper angle, depending upon the weight of the load to be carried. Defendant relied upon his skill and judgment with respect to such operations. The deceased, before starting to operate the crane, was charged by his employer with the duty of inspecting the drums, cables and other operating mechanism in order to determine whether they were in satisfactory condition for use. He had nothing to do with examining the mechanism underneath the crane's housing. His inspection of the crane would at most be superficial, for a defect, unless apparent to the eye, could not be known until there was a failure of efficient function in the crane's operation. If it were found to be in need of repairs, the operator was instructed to report it to the proper authorities and not to use it until the required repairs had been made. With the exception of the boiler, the defendant did not provide for periodic inspections of the crane in question but made repairs only after a defect had been reported by the operator. The crane involved in this case had undergone repairs, particularly with respect to its drums, every few days during the month preceding the fatal accident.
In our opinion the facts and attending circumstances warranted an inference of negligence on the part of the defendant under the doctrine of res ipsa loquitur as it is applied in the Federal courts. It is claimed by the defendant that the doctrine may not be resorted to in this case. One of the requirements, it points out, which must be met before the doctrine is applicable is that the one charged with blame be in exclusive control of the device which caused the injury. Therefore it reasons that since the undisputed facts show that the deceased was operating the crane which caused his death, the jury had no right to infer that it was negligent.
Were we to apply literally the doctrine as it is announced in the decisions, there would be some merit to defendant's position. But it must admit that Federal juries have been permitted to draw inferences of negligence in cases where the parties charged with liability were not in exclusive control, in the physical sense, of the devices or things which caused the injuries complained of. See Jesenowski v. Boston & Main R. Co., 1947, 329 U.S. 452, 67 S. Ct. 401, 91 L. Ed. 416, 169 A.L.R. 947; Sweeting v. Pennsylvania R. Co., 3 Cir., 1944, 142 F.2d 611; Pitcairn v. Perry, 8 Cir., 1941, 122 F.2d 881; Eker v. Pettibove, 7 Cir., 1940, 110 F.2d 451; Central R. Co. of New Jersey v. Peluso, 2 Cir., 1923, 286 F. 661. From these cases we gather that exclusive physical control is not a sine qua non for the application of the doctrine; legal control, responsibility for the proper and efficient functioning of the device which caused the injury, and a superior, if not exclusive, position for knowing or obtaining knowledge of the facts which caused the injury are sufficient.
Another factor which may be noted, is that the court, as is customary under the Act, instructed the jury on comparative, or more properly, proportional negligence. It told them if they found the plaintiff to be negligent such negligence would not defeat the plaintiff's right to recover, but would act to diminish or lessen the verdict which they might render. From the verdict, taking into consideration the charge of the court, we may conclude that the jury made one of the following general findings: that the deceased was blameless and the defendant negligent, or the deceased was negligent, but the defendant was more so.
While the defendant disagreed with the court's charge to the jury on the doctrine of res ipsa loquitur, and the instruction that an inference of negligence on the part of the defendant might be drawn from the happening of the event, it failed, however, to take exception to that phase of the charge concerning comparative, more properly proportional, negligence. It also failed to ask for a new trial. In view of Rule 59(b, e) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the defendant may not be granted a new trial. Therefore the question is not posed here as to whether the doctrine of res ipsa loquitur can be applied under the Act only if the injured person is free from fault and thus deny the plaintiff the benefit given him by the Act of having the injured person's negligence, if any, being considered only as going to the mitigation of damages instead of a complete bar to recovery.