acts of negligence and a general allegation of negligence as to the availability of the doctrine of res ipsa loquitur. Some authorities hold that pleading and producing evidence of specific acts bars recourse to the doctrine, while others hold that it does not have such effect where the pleading also contains general allegations of negligence. 65 C.J.S. Negligence § 220(11); 158 A.L.R. at page 1008; 38 American Jurisprudence Section 295 et seq.; 141 A.L.R. 1019.
A most exhaustive research of the authorities by counsel for the parties and the court fails to disclose a determination of this issue by the United States Court of Appeals for the Third Circuit or the Supreme Court of the United States.
Upon an evaluation of the divergent authorities in support of the two conflicting views, it is my judgment that if plaintiff alleges negligence specifically and generally, and produces evidence of specific acts of negligence, he is thereby precluded from relying on the inferences permissible and benefit of the doctrine.
All authorities hold to the view that the doctrine of res ipsa loquitur is merely a rule of evidence, not a substantive rule of law. The doctrine does not require the jury to find in favor of the plaintiff, but merely affords evidence to carry the question of liability to the jury, which may adopt or reject the conclusion of responsibility on the defendant's part as required by their reason and common sense, applied to all the facts in the case.
The doctrine has no application where all the facts and circumstances appear in evidence. Nothing is then left to inference and the necessity for the doctrine does not exist. Being a rule of necessity, it must be invoked only where evidence is absent and not readily available.
I am at a total loss to conceive of how the granting of a new trial could in any way serve the interests of justice, recognizing as I must that a new trial would require the submission of identical facts and proof for the consideration of the jury with the same burden of proof resting on the parties. The doctrine does not have the effect of shifting the burden of proof.
Where the res ipsa loquitur doctrine is applied once defendant has produced exculpating evidence of equal weight, plaintiff is required to go forward with the evidence and satisfy the jury of defendant's negligence by the preponderance or weight of all the credible evidence.
In view of the specific proof of negligence submitted by plaintiff and defendant's proof submitted in defense thereto, retrial under the doctrine of res ipsa loquitur could in no way shift the burden of the parties as the circumstances existed in the instant trial.
I must conclude therefore:
1. That since plaintiff both alleged and submitted proof of specific acts of negligence, he thereby forfeited his right to the charge of the court under the doctrine of res ipsa loquitur and/or
2. If plaintiff were entitled to a charge of res ipsa loquitur, even though specific acts of negligence were alleged and proved, a failure to so charge was de minimus and not prejudicial error.
The claim that the verdict was against the weight of the evidence and that the court erred in refusing to charge on the evidence presented by the plaintiff does not require extended discussion.
The Verdict Was Against the Weight of the Credible Evidence
Upon careful scrutiny and evaluation of all testimony, I am satisfied that such inferences are deducible from the weight of the credible evidence to support the conclusion that defendant was not negligent in the maintenance and inspection of the Wilkinsburg Yard. De Pascale v. Pennsylvania R. Co., supra. I have frequently stated that such testimony cannot be summarily expunged, whether the jury weighs it in favor of plaintiff or defendant, in order to substitute the personal opinion of the court.
The choice of conflicting versions of the way the accident happened, the decision as to which witness is telling the truth and the inferences to be drawn from the uncontroverted facts and the controverted facts are questions for the jury. If there is a reasonable basis for concluding that negligence of the employer was not the cause of plaintiff's injury, it would be an invasion of the jury's function for the court to draw contrary inferences or to conclude that a different conclusion would be more reasonable. Thomas v. Conemaugh & Black Lick Railroad Co., 3 Cir., 234 F.2d 429.
It is my judgment that the verdict rendered was not against the evidence or the weight of all the credible evidence.
The Court Erred In Refusing Plaintiff's Request For Charge As To Testimony Presented By Plaintiff
Plaintiff's Request No. 8 urges the court to charge the jury as to certain inferences deducible from testimony of divers witnesses in connection with plaintiff's allegation that defendant failed to provide plaintiff with a safe place in which to work. The requested point was refused for the reason that I have always refrained from a discussion of the evidence or inferences deducible therefrom in order to avoid the pitfall of a jury obtaining improper impressions and beliefs as to the weight of one segment of the testimony over another, and to eliminate the further danger of a jury obtaining the belief that the trial judge harbors one view or another about the facts.
It was sufficient that the court with great meticulousness charged the jury on defendant's requirement to provide plaintiff with a safe place in which to work.
I must conclude, therefore, that plaintiff's claim of error in the court's refusal to charge Plaintiff's Request No. 8 is without merit.
An appropriate Order is entered.