1957, issue of the United States Law Week, and not yet officially reported. But all these cases are predicated on some proof of negligence and causal connection.
Judge Soper's comment in Atlantic Coast Line R. Co. v. Collins, 4 Cir., 235 F.2d 805, 807, certiorari denied 352 U.S. 942, 77 S. Ct. 265, 1 L. Ed. 2d 238, seems most pertinent to this case:
'In the last analysis the plaintiff's case rests upon the contention that negligence on the part of the railroad company must be inferred from the mere happening of the incident. He says in effect, that since it was so hard to lift the lever of the switch to the upright position that he hurt his back, the switch mechanism must have been defective, and the railroad company was negligent in furnishing it. But this simple statement leaves out of account other material features of the evidence on his behalf which must be taken into consideration. He also showed that the switch was operated many times each day, that he himself had operated it a dozen times on the night that he was hurt; and that neither he nor his companion, who had operated it on previous occasions and found it harder to use than some other switches, had ever complained of its condition to their superiors. This testimony taken in the light most favorable to the plaintiff may give rise to the speculation whether the injury was due to a defective switch of the railroad company or to the defective back of the man; but speculation is not enough. "The essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 32, 64 S. Ct. 409, 411, 88 L. Ed. 520.'.
See also Brady v. Southern Pacific Railway Co., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239, and 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.
In the Gill case, Judge Kalodner, speaking for the court, said, 201 F.2d at pages 720-721:
'We have reviewed all of those cases, and in certain respects the law enunciated therein by the Supreme Court is a modification of common-law principles. Generally, the Supreme Court has shown a disposition to allow cases to go to the jury where, at common law, a verdict would have been directed for the defendant. But there are limitations. 'The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be 'in whole or in part' the cause of the injury.' Ellis v. Union Pacific Railroad Co., 1947, 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L. Ed. 572. Tennant v. Peoria & Pekin Union Railway Co., 1944, 321 U.S. 29, 32, 64 S. Ct. 409, 88 L. Ed. 520; Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S. Ct. 413, 93 L. Ed. 497; Reynolds v. Atlantic Coast Line, 1949, 336 U.S. 207, 69 S. Ct. 507, 93 L. Ed. 618; Lillie v. Thompson, 1947, 332 U.S. 459, 68 S. Ct. 140, 92 L. Ed. 73. As was said in Brady v. Southern Railway Co., 1943, 320 U.S. 476, 479, 480, 484, 64 S. Ct. 232, 234, 88 L. Ed. 239:
"The weight of the evidence under the * * * Act must be more than a scintilla before the case may be properly left to the discretion of * * * the jury. When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, directed verdict or otherwise * * *. The rule as to when a directed verdict is proper * * * is applicable to questions of proximate cause."
It therefore follows from the foregoing that an order will be entered setting aside the verdict of the jury and the judgment entered thereon, and rendering judgment for the defendant.
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