counsel argues rather persuasively that plaintiff should have a new trial because of being injured while at work for the defendant. He says that plaintiff's uncertainty at first as to what struck him leads to the conclusion that the instrumentality which caused his injury might very well have been another piece of the train rather than the brake shoe. Plaintiff's counsel contends that plaintiff should have another chance before the jury. Certainly plaintiff's counsel cannot be criticized for presenting plaintiff's cause in the manner in which he did. Under the facts related by plaintiff, his case was ably tried by his lawyer, but in this type of case, a jury finding for the defendant does not necessarily mean that an injustice has been done plaintiff. Plaintiff's case depended upon his own credibility. The verdict of the jury should stand unless there was error in failing to charge in accordance with plaintiff's third request.
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 part of the train * * * struck the plaintiff directly injuring him * * *.'
It follows that to permit plaintiff's case to be left with the jury under the res ipsa doctrine, there would have had to be some evidence that a part of the train under the exclusive control of defendant struck plaintiff. This point is illustrated in the discussion of the res ipsa doctrine found in 65 C.J.S. Negligence § 220(8), p. 1011, where the statement is: '* * * the injury must be shown to have been caused by some act incident to defendant's control of the instrumentality * * *.'
But on that precise point, plaintiff took out of the case the very point which he now claims as error. To disregard plaintiff's identification of the object that struck him means to engage in mere speculation as to the cause of plaintiff's injury. The result is that the very point which plaintiff now contends should have allowed him to go to the jury under the doctrine of res ipsa took him to the jury under the Safety Appliance Act. Plaintiff did not need negligence in his case to recover under all of his evidence. His road to recovery was made easier, but he had to convince the jury that he was making a correct identification of the object. Having failed in that proposition, is a new trial justified?
As trial judge, in my opinion a new trial should not be granted. At a second trial, plaintiff could not change his testimony on the identification issue. He has identified the object on at least three occasions prior to trial, first to the defendant's physician, next in his sworn answers to interrogatories, and third in his oral deposition. At pretrial his counsel very firmly indicated that plaintiff would identify the object as a piece of the brake shoe. As trial judge, having seen the plaintiff on the witness stand and being under the strong impression that his cause was ably presented to the jury, I am satisfied that the verdict should not be disturbed.
Plaintiff's counsel makes a point of the fact that the jury during the course of its deliberation returned with an interrogatory. This matter has been considered. If the inquiry submitted by the jury has any weight at all, it is, in the opinion of the court, contrary to that asserted by plaintiff's counsel. The substance of the interrogatory was as to whether, if the jury found defendant not negligent, it could still award damages to Mr. Masterson because he was injured while an employee of the defendant. The inquiry indicated that the jury, even though uninstructed on the point, was considering negligence and apparently had concluded that there was no negligence on the part of the defendant. It is believed that the instructions given to the jury clearly pointed to the issue which the jury had to decide. As trial judge, my impression of the jury's return to the courtroom with the inquiry was that the jury had already decided the case against plaintiff, based on the evidence and the law. The jury indicated by its inquiry that it was searching for a method to recompense plaintiff, even though it did not accept his identification of the object. On being further instructed on the point, it quickly returned with a verdict for the defendant.
The motion for a new trial will be denied.
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