The opinion of the court was delivered by: WILLSON
In this case, tried to a jury, the verdict was for the defendant. Plaintiff filed a timely motion for a new trial. His motion is grounded on the proposition that in charging the jury the court failed to grant plaintiff's third request for charge, which reads:
'3. Should you find by a fair preponderance of all the evidence in the case, that something which was part of the train and which was under the exclusive control of the defendant railroad and with respect to which plaintiff exercised no control, struck the plaintiff directly injuring him, then the doctrine of res ipsa loquitur applies. Jesionowski v. B(oston) & M.R.R., 329 U.S. 452 (67 S. Ct. 401, 91 L. Ed. 416)'
The request for charge was refused because inconsistent with the allegations in the Complaint as well as inconsistent with the position taken by plaintiff and his experienced and able counsel throughout the trial and finally because not warranted by the evidence introduced during the trial.
The Complaint was filed in the Northern District of Ohio, Eastern Division, and transferred to this court, the case being tried at Erie during the June term, 1958. On December 5, 1956, plaintiff was injured in the course of his employment while working as a brakeman for the defendant. The Complaint was drawn under both the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., and the Federal Safety Appliance Acts, 45 U.S.C.A. § 1 et seq., but in the third paragraph of the Complaint plaintiff alleges:
'3. On or about December 5, 1956, pursuant to the duty he owed this defendant, he was looking out of the side window of a caboose when suddenly a part of a brake shoe on one of the cars of said train broke and struck him on the forehead above the right eye.'
The case was called for pretrial on May 28, 1958. At the pretrial plaintiff's counsel very firmly indicated that plaintiff's claim for relief was based upon a violation of the Safety Appliance Act as had been alleged in the Complaint. During the pretrial the possibility was discussed as to whether plaintiff might be able to show negligence on the part of the defendant. In response to my query on this possibility, plaintiff's counsel said:
'* * * If the jury believes that it was a piece of a brake shoe which struck him, the plaintiff gains nothing by establishing negligence, when the court charges that is a violation of the Safety Appliance Act. All one does in those circumstances is to clutter up a record. I think the Supreme Court is right when it observes that if it be a Safety Appliance Act case then negligence has no place in this whole matter.'
At the trial plaintiff's counsel opened to the jury and plaintiff's case was tried on the theory that plaintiff positively identified the object which struck him as part of a brake shoe which came from the trucks under the cars of the train some little distance ahead of the caboose.
One of the issues was as to when plaintiff first identified the object which struck him as being part of a brake shoe. Unquestionably plaintiff on recovering consciousness after the accident was unable to state what hit him. However, some 50 days after the accident and before he had retained counsel, he told defendant's physician that the object was a piece of a brake shoe. Plaintiff has contented that his admitted inability at first to say what struck him was caused by a retrograde amnesia caused by the blow on his head. Plaintiff's neuro-psychiatric expert, Dr. Gould, explained plaintiff's retrograde amnesia as consistent with plaintiff's first statement that he did not realize or know with what object he had been hit.
Thus the case at the close of all of the evidence presented a situation where the Safety Appliance Act was applicable rather than a claim for relief based upon negligence. Plaintiff's counsel was aware, of course, that plaintiff had the burden of convincing the jury under the factual situation that it was a piece of brake shoe which struck plaintiff. Counsel for both parties were aware, of course, of the several statements made by plaintiff before the pretrial in which he positively identified the object. At the pretrial, I was not aware of prior statements of plaintiff on this point. As trial judge, I was concerned on plaintiff's behalf because he was undoubtedly injured during the course of his employment and without fault on his part, yet his story that he could identify the object as a piece of brake shoe in the nighttime under bad weather conditions seemed to me rather incredible. Nevertheless, plaintiff was certain in his testimony, under rigorous direct and cross-examination, that the object was a piece of a brake shoe.
It is to be noticed as to the request that it embodies a precise statement of the res ipsa loquitur doctrine. Jesionowski v. Boston & M.R.R., 329 U.S. 452, 67 S. Ct. 401, 91 L. Ed. 416 is cited. In the Jesionowski case, Mr. Justice Black, 329 U.S. on page 457, 67 S. Ct. on page 404, refers to Sweeney v. Erving, 228 U.S. 233, 240, 33 S. Ct. 416, 57 L. Ed. 815, and says in part:
'* * * that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking * * *.' (Emphasis supplied)
In the instant case it is obvious, of course, that direct evidence of what caused plaintiff's injury is not lacking. The request as submitted is therefore inconsistent with all of the evidence in plaintiff's case, that is, as to the point where the request says '* * * that something which was ...