the twenty-five feet to his locker, got a sandwich, and stood there and ate it, waiting for the crane runner to come. Between the time that plaintiff left the place where he was working to get a sandwich and the time he came back, Philip Leyshon was the only person near the wheel. Plaintiff watched the place where he was working all the time he was having a sandwich. While waiting, plaintiff saw that Leyshon was engaged in getting a chain from the crane in order to hook it to the tire. When the crane runner approached over Leyshon's head, plaintiff walked back to the place where he was working. The crane runner hollered 'Look-out'. Plaintiff looked up and the tire fell over and hit him on the mouth. Plaintiff testified that when he came back to the place where he had been working, the chain was not around the tire but he did not know how the chain was removed or who removed it even though he watched that place while he was having a sandwich.
Plaintiff contends that because of the decisions of the United States Supreme Court in Lavender, Administrator v. Kurn, 327 U.S. 645, 66 S. Ct. 740, 90 L. Ed. 916; Bailey, Administratrix v. Central Vermont Railway, Inc., 319 U.S. 350, 63 S. Ct. 1062, 87 L. Ed. 1444; Urie v. Thompson, Trustee, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282, and Stone v. New York, Chicago & St. Louis R. Co., 344 U.S. 407, 73 S. Ct. 358, 97 L. Ed. 441, this Court was bound to submit the issue of defendant's negligence to the jury.
In support of his position, plaintiff argues that because of these decisions and a few others containing similar language, every case of injury to a railroad employee must be submitted to the jury.
The provisions of the Federal Employers' Liability Act require that plaintiff's injury be caused at least in part by the negligence of the defendant. In the absence of negligence of the defendant as a causal factor in plaintiff's injury, there can be no recovery. Where plaintiff's evidence of negligence and causation amounts to nothing more than a scintilla, the Court must enter judgment for the defendant as a matter of law: Brady, Administratrix v. Southern Railway Co., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239. The cases of the Supreme Court of the United States relied upon by plaintiff do not hold otherwise. It is true that in some of those cases there is language used which would tend to diminish the power of a court to exercise its usual judicial control of a verdict where plaintiff's evidence falls below the minimum standard accepted as a basis for the establishment of liability. For example in Lavender v. Kurn, supra (327 U.S. 645, 66 S. Ct. 744), it is stated:
'It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.'
Although this statement seemingly enlarged the function of the jury under the facts of the case, it requires that the evidence be such 'that fair-minded men may draw different inferences', and that there be an 'evidentiary basis' to support the jury's verdict. The 'speculation' portion of the above quotation was clarified by the Supreme Court of the United States in Moore, Administratrix v. Chesapeake & Ohio Railway Co., 340 U.S. 573, 71 S. Ct. 428, 430, 95 L. Ed. 547, where the court stated:
'* * * Speculation cannot supply the place of proof.' In actions under the Federal Employers' Liability Act the Federal courts have consistently required that plaintiff furnish evidence of negligence and causation of a standard that a jury could reasonably find liability in order to sustain a verdict. Gill v. Pennsylvania Railroad Co., 3 Cir., 201 F.2d 718, certiorari denied 346 U.S. 816, 74 S. Ct. 27, 98 L. Ed. 343.
The attention of this Court is therefore directed to the question whether the evidence produced by the plaintiff in the instant case is such that a jury could reasonably find that defendant was negligent and that such negligence caused plaintiff's injury.
This Court concluded at the trial and is of the same opinion now that plaintiff's testimony failed to establish any negligence on the part of the defendant. In the first place, there is not direct testimony as to the purpose for which the chain was placed around the wheel and tire, although it may be inferred the purpose was to hold the tire upright while it was being knocked off the wheel with the sledge hammer.
In the second place, before the tire could be taken away by the crane, it is obvious that the chain necessarily had to be removed, and it may be inferred also that the chain was removed for that purpose; especially as, according to the plaintiff's testimony, the crane was over the tire when Leyshon was reaching for the crane chain to attach it to the tire.
In the third place, even if the chain was removed by Leyshon, no negligence can be inferred from that act, because there is nothing to indicate that the removal of the chain caused the tire to fall, and Leyshon could not be expected to anticipate that plaintiff, an experienced workman, would place himself in position where the tire might fall upon him. There is no evidence of any negligence in the manner in which Leyshon did his work, neither is there any evidence of any mechanical defect in the crane and equipment, the tire or wheel, or the floor of the shop, which might have caused the tire to fall. Nor is there any testimony as to the custom ordinarily followed when a tire is knocked off a wheel as described by plaintiff, or that the usual custom, with which he was thoroughly familiar, was not followed.
What did cause the tire to fall? There is no evidence of what caused it to fall, and, consequently, a jury should not be allowed to speculate upon the reason. See Direnzo v. Pittsburgh Bridge & Iron Works, 265 Pa. 561, 109 A. 279.
Furthermore, the doctrine of res ipsa loquitur and the doctrine of exclusive control are not applicable in the instant case.
There was no evidence upon which a reasonable and unprejudiced jury could properly find or infer that defendant was negligent.
Plaintiff's motion for a new trial will be denied and an appropriate order will be entered herewith.
© 1992-2004 VersusLaw Inc.