# Petition for Writ of Certiorari — Pan-American Life Insurance v. Raij > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0107%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 920 ## Text ' Frank Ursicu, 5 , | “Ottice-Supreme Cowt, US. i aie 27. U. Ee FILED aa IN JUL 6 1964 _Suprae Cour of the United a bis a 4 feo. October Term, 1964 No. 2 1 q | Petitioner, . VS. . MANvEL G.¢Da Rosa, ANTONIO ° “GARCIA Da’ Rosa, Maria A. Rosa, VICTORINO Garcia Da Rosa AND Mary Rosa. SANTOos, . _ Respondents. \ “Petition. for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. Ben Marco.is and Jonn_T. McTERNAN, 3175 West Sixth Street, Los Angeles 5,@alifornia, - Attorneys for Petitioner. Parker & Son, inc. Law Printers, Los Angeles. Phone MA. 6-9171. SUBJECT INDEX. >’ Opinion below ................ ie sdanivciniisectaeisaliaseiicdadanias Jurisdiction ..............--+-. -sspibeinivnensl li onisideininphontiaeadageistanta ‘Questions presented .........:sescsscs-ssssccsssssesersssseeceseenseess Statutes involved .............-. eaetnes | enema ren Reasons for granting the writ .................. ileal ™ 7 1 | ‘The fact that a defendant in a case where the doctrine of res ipsa loquitur applies, offers di- rect evidence of the cause of the accident, does not render the doctrine inapplicable nor does ‘it justify a refusal to instruct on the subject; the “doubt expressed below on. this matter should be post Seniisedesessicbenn cama ibid adesdedhipinisiatasiochlalaite iF —— the court below erred_in bolding that the- jury might disregard the res ipsa loquitur inference whether or not the defendant had offered evi- dence to meet or balance it; while the res ipsa doctrine does not shift the burden of proof, it gives rise to.an interenee of negligence which should prevail unless the “defendant presents © - evidence to meet or balance OF scircnrssonconpsncia PONE re ___yy-— _ Where the doctrine of res ipsa applies it is error to give an instruction stating the general prin- -ciple that no inference of negligence can be. | drawn from the mere tact that an accident ———— STEEN vs jucolaatalnccaxsi en Rinaihdeteuiees rks Ie RE EELS Ne LESS OTS SN OE Pent ee oon meee x Cet — ne Fee SE eet baes Se tS Se ° bs Gs . — , 8 il. Index to Appendices’ “Page Appendix A: Opinion ‘of the United States Court - ' of Appeals for the Ninth SPU cicemcninestarenieatecees ' § Appendix B. Judgment ................. RT RNS RN OC 10 Appendix C. Order denying petition for rehearing... 11 Lee Appendix D. United States Code, Title 46, Sec. 2 EOE ETE aE a Se a 12 : J ? 2 a D "sien ok | Bs ' TABLE OF AUTHORITIES CITED Cases , - Page Baltimore & O. R. Co. v. O'Neill, 211 F. 2d 190 ....9, 10 Bedal ¥. Hallack & Howard Lumber Co., 226 F.2d « peli: ACIS et NNR NS Mao (9 WD —“Berpley @.. Manns,99 Nz W. 24 849 ccssssreueueeen 21 ’ Burr v. Sherwin Williams Co... 42° Cal. 2d 682, 268 TD cts ~foiecioiae a ae 20 ‘Byrne v. Boadle, 159 Eng. Rep. 299 eee ee ouaae 8,14 Carpenter v. Baltimore & O. R. Co., 109 F. 2d 375 .. 22 Chesapeake &..O-R- Co. v. Thompson Mig. Co., 270 U. S. 416 saskteleeteicies bom seis neasiansapoedenemeabiaeciel 8, 19 Christie v. Griggs, 170 _ Rep. 1088, 2 Camp. | a cic ua dalacs cacgaasicansielaea aaunmeneneniatl ideale 8,13, 14 Cortes v. Baltimore Insular Line, 287 U: S. 367 .... 23 - > Cosmopolitan Shipping ‘Company v. McAllister, 337 é U.S. FOR eee B Cratty v. Samuel Acéto:& Co., 151 Me. 126, 1é" A. 2d 623 sities ahisksiaboecvbaondoniteacanclenieigiinatine aosieal fe 2. 21 Downs v. Longfellow Corp. 35} P. 2d 999 6f....::. 21 Fassbinder v. Pennsylvania R. R. Co., 322, Fe 24 859 22 .- Gleeson v. Virginia Midland Ry. Co., 140 U. Ss. 435 oeceeeecleceeeetenegggecebeseeetieesneeaeennensensecneensensnes 8, 14, 18 Great Western Ry. a Canada Ji Braid, 15° Eng. _ Rep, 640 CONE Scicsinitcilacmmecarmcmmtonss 8,9, 12, 14 Greyhound Corp. v. Brown, 209 Ala. 520, 113 So. 2d 916 ...... haicedcamceaene pppoe cernnecccognennecsnseeccnnsseeceneeets . 20 Inland and Seaboard Coasting Co. v. Tolson, 139 . Me a eee MES ORLES,: 8, 9, 11, 15, 17, 18 Izzi. v. Philadelphia Transportation Co., 412 Pa. SOD, TRS A, Be FOG oan csmcinssececssicinsiessittontatnseeetntonnnn 21 Viv. , | ate Page Jacobs, v. Beck, 141 So. OE oi oe Jamison v. Endarnacion, 281 U.S. 635. cesses 23 Jesionowski:v. Boston & Maine RR., 329 U.S. 452 * meinen istimainiaaimnantivieminltinnmmenndfulty " _ Johnson v. Monongahela Power Company, Pe ae og Mae sony 123 Sl EL 2d 81 Sica cssnsnecsenseiennececeneneenncs a ae teen v. United States, 333 U. S. 46 Lasesssncad, 19 - Kearney v.. The London, Brighton & South Coast / Ry. Co, 5 QB 411 (1870), aff'd 6 QB 759 CTF) assess anesesegsneninanenenaceesiintnaniennsnansananitanersniaenitai 8, 14 Lund. v. Phillips Petroleum Company, 10 Utah 2d 276, 351 ¥. UE SUE in ieaiskcecbe non ates ipcbieaunivbsticncoinbits 21 McAllister v. Magnolia Petroleum Co., 357 U. Se +P GE Wideinsiaintainenecimcinateteeaenaiiainesanetinig hiesinnminatamainingn 6 Miller v. Cincinnati, etc. R. Co.. 317 F. 2d 693°. 9, ir’. Moon v. Johnson, ‘47 Tenn. App. 208, 337 S. W. + SEE ED ackecicsaadingie sci anni uiatoaRacmaninaetnn _ Moore v. R. Fox & Sons [1956], 1 All E.R. 182. 8, 15 - Motte v: First Nat'l Stores, 76 R. 4. a 70 A. 2d eee UE * Sesicgansinieagnt nea bteasieniiaiemed ain noses patton MO Munzert v. ‘American Stores Co, 232 Md. 97, 192 Fis Be OT Cai scienibinaenieciiiptiainnisaiapnaidadbiamiumilesess a New Jersey RR & Teenkn. Co. v. Pollard, 22 Wall. eky Be Ge I DET setncieericenicnenenene 8, 15, 18 . O'Neill v. B. & O. R. Co., 348 U. S. 956 aay 10, 11 x ‘Reece v. Webster, 221 Ark. 826, 256-5. W. 2d 345 .. 20 Robinson v. Nightingale, 188 Kan. 37, 362 P. 2d | URE Ghupdiaiemnnsatieacadaiananad titania ca vipeabanmindadiie. 20 -San Juan Light. & T. Co: v. Requena, 224 U. S. OF sec cesrasesssatishanaecaanenataaaanan 8, 9, 12, 16, 17, 18 . one Reon meen ‘ f v. Page Scott v. London & St. Katherine Docks Co., 159 . Eng. Rep. 665. (165) oredp.ceseeceeceerensencntaccesesensees 8, 15 . Sisbeasl v.sGossnell, 234B./2d. BY. .ejeccsseeenee ey | Southern /R. Co. -Carolina Division v. Bennett, 233 E: = £ peewee cabaaceieiabaeal 8, 14, 17, 18 | Stocking v. Johnson Flying Service, .... Mont. = ; . ae ay i) nen eee ald enone 20 ° * Stokes v. Saltonstall, 13 -Pet. 181,-10 L. ed. 115- aS FOE eR Sem ae In On 8, 9, 11, 12, 14, 15, 18 Sweeney v. Erving, 228‘U. S..233 .......... 8, 16, 18, 20 Texas & Pac. R. Co. v. Buckles, 232 F. 2d 257, ; ile il: TOE TT BI asscknatersctrteinrd 12 The Arizona v. Anelich, 298 DB PD concerns = v. F. E. Young & Co., 94 Ariz. 146, 382 _ P. ad 560 siiicsaelae nisms oaaeecntbteiesaenesiiesieweisaenexsimtacaieiaane . 20 - Walsh v. “Holst & Co., Ltd., 3 All ER. } Pees 8°15 | “Weigand v. Pa. R. Co., 367 F. 2d 281 ........9, 12, 20 © Weiss v. Axler, 137 Colo. 544, 328 P. 2d een 20 ; Weyerhauser ‘SS‘Co. v. Nacirema Co., 355 U. S. 563 s csiennmsisees lies onouacn ies stectnnshepe elebaikadinains oataseiniiye 6 , | Statutes : = 41 ‘tatutes ‘at Lavae. ee en ee we ey ie United States Code, Title 28, Sec. 1254(1)_ suymeeas 2: United States Code, Title 28, Secs 1291 sn . United States Code, Title 28, Sec. 1333 2..2..........:0003- 2 United States Code, Title-46, Sec. 688 0.0... ..2,° 3 United States Constitution, Art. II], Co Peace i § _" 6 . Textbooks © © | Page Frederick Pollock, The Law of Torts, a London Ed: 1887); pp. I iu sienna Dblenabennieccte 8, 15 _ Halsbury’s, Laws of England ( 3rd ed. ia, Vol. 28, p. 80 ia a 8, 14, 15 2 Southern California Law Review (1944), Pp. 187 21 Wigmore, Evidence (1940) ed.), Sec. 2502 ........ 16 Pa IN tc - _ Supreme Court of the United States —— _ October Term, 1964 SR itsihclenenis FRANK URsICcH, ( band Petitioner, | US. f : MANvuEL G. Da Rosa, AnToNIo Garcia Da Rosa, MariA A. Rosa, Victorino Garcia DA Rosa AND Mary Rosa SANTos, cs | = Respondents. , Petition for Writ of Certiérari to the United States Court of Appeals for the Ninth Circuit. Petitioner prays that a writ of certiorari issue to re- ' view the judgnient of the United States Court of Ap- peals for the Ninth Circuit affirming a judgment of the ©. United States District Court for the Southern District . of California, Central Division, based upon a jury ver- dict for the respondents (defendants below) and against | petitioner (plaintiff below) in an action four personal in- juries under the Jones Act. . , Opinion Bélow. The opinion of. the United States Court. of Appeals for the * Circuit is reported at 329 F: 2d 794 - (1964) and‘is set forth in Appendix A to this petition No written opinion was rendered by the trial court. - Jurisdiction. The jurisdiction of: the district court is bined upon _ the Jones Act, 41 Stat. 1007, 46 'U. S. C,-688, ang upon its admiralty and maritime urisdiction pursuant to Ar- ticle TIT. Section 2, ef the} United. States Constitution -and 28 U. S. C:1333.\. The Judgment of the United, --States Court of leon for the Ninth Circuit was made and entered on: February 26, 1964. (App. B, p. ee, ‘Its jurisdictien is based upon 28 U. 5. <. wi. & timely Petition for Rehearing was filed and denied ‘on April 7, 1964. (App. C, p. 11. ) The jurisdiction : of this Court is invoked under 28 U. S. C. 1254(1). Questions Presented. 1. Whether ina Jones Act case, where the doctrine of res ipsa loquitur is applicable, that doctrine merely permits the drawing of an.inference of negligence, or whether it compels such"an inference subject to that inference being overcome by cvmienne sufficient to meet or balance it. 2. Whether. in an action for injuries received when petitioner was ‘hit by a falling fish being hand¥®d by and under the:-exclusive control of a fellow crew mem- ber the court erred in instructing the jury.that no in- ference of negligence could be drawn from the mere - happening of the accident itself. 3. Where, in a Jones Act case, the evidence estab- lishes without dispute that the respondent fishing vessel owners had exclusive control of a fish an that said fish was dropped by respondents and struck respondents’ em- ‘ployee, petitioner, does the fact that the respondents introduce testimony of several possible causes of the fish falling. at least one of which would, constitute negligence, See .render inapplicable the doctrine of res. ipsa loquitur?: “4. Is the answer to the above question affected by the fact that the explanation itself shows-that the man- ner in which the work leading to the accident was done was such that the fish dropping feasonably could have been anticipated to result therefrom. particularly. where accompanied by the admission that the work could have been done in such a manner as to avoid this hazard? Statutes Involved. The action was brought under the Jones Act, 41 Stat. 1007, 46 U. S. C. 668 (App. D. p. 12.) The issues pres- ented here do not relate to the language of oe statute ; no’ other statute is here inv oly ed. Statement of the Case. ° The following facts are undisputed and are substan- tiated by the Witnesses, called by both parties: The petitioner, while employed as a fisherthan aboard respondgnts’ fishing vessel “Portuguesa”, was, engaged together with a fellow fisherman, Druskovich, in dis- charging fish from a tank of -said vessel. [R: 15, 103. 24-25, 76-77. 104.]' Large fish were removed from the tank by a rope sling placed around their tails: smaller “fish, in buckets. [R. 26, 28, 78.] Petitioner was standing in the opening of the tank, about two and ‘one-half. to/ three feet ‘squaregalongside a bucket which he had filled, awaiting its removal by ‘means of a winch. [R. 33. 79-85, 109. The petitioner was working where he had been assigned. was doing his - 1References to the ‘record {“R°] are to the pages of the Re- porter's Franscript in the trial court. References to [“C"] are to the pages of the Clerk's Transeript in the trial’ court. .- : | _4— ‘ °: job in.a proper manner, and did nothing which caused ° the accident.:[R. 114.] A fellow crew member, Druskovich, was working on the deck above and several feet from petitioner. [R. -85.] While lifting a fish weighing between 130 and °* . 140 pounds by picking it up by its tail With one hand and a hook inserted in an’ eye of the fish with the ‘other hand, Druskovich dropped ‘thes fish and it struck petitioner, injuring him. [R. 32-33, 106, 108-109, 115.] Petitioner offered no evidence as to what - caused ‘Druskovich to drop the fish. The respondents offered testimony that the fish was _ handled in the customary manner and that even when it was handled in such customary manner a fish gets loose and drops a couple of times a day; the accident could have occurred because the éye of the fish was soft ~ and the hook pulled out. or because the bones of the fish broke, or because the hook broke. [R. 108, 119-121.] There was no evidence as’ to which, if any, of the pos- sibilities was the cause of the accident. [R. 121.] "The testimony established without contradiction that the proper way to place the hook in the eye of a tuna is to place it under the bones in the eye, in order to prevent it from slipping out. [R. 88-91, 137-138, 141.]_ There _ was no evidence to the effect that Druskovich had done this with the fish that fell. . - Druskovich, respondents’ only witness, conceded. that with big fish, for safety purposes, a sling is sometimes used instead of a hook, [R. 119.] Moreover, Drusko- vich admitted that he knew he was ‘handling the fish in such a.manner that it might fall and that he did nothing to prevent it. [R. 128.] —— ‘i Petitioner requested the trial court to give his pro- posed instruction No..17 to the effect that from the. happening of the accident, the jury -was. required to infer some negligent conduct on the part of the re- spondents, and that respondents had the burden of going forward to meet or balance this inference by evidence either. showing a cause for the accident’and respondents’ lack of negligence with respect thereto.or by evidence showing such care on the part of the respondents as to negate negligence by them even though. the cause was unknown.’ | | Respondents objected thereto on the ground that they had offered an explanation’ of the accident and _ that. . therefore, the res ipsa doctrine did not apply: The ob- jection was sustained. [R. 161-163. 194.] s 2The proposed instruction reads : “From the happening of the accident involved in this case. an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a for. of evidence and unless there is con- trary evidence sufficient to meet or balance it, the jury should find in accordance with the inference. — ‘“When there is any evidence to the contrary, you must weigh all of the evidence bearing upon the issue of defend- ant’s negligence. If the evidence tending to prove that .the accident was caused by a failure of the defendant to éxercise the cate required of him has greater weight than‘the evidence to the contrary, you will find in favor of the plaintiff on that issue. : f “In order to meet or balance the inference of negligénce, the defendant must present évidence to show either (1) a satisfactory explanation of the accident, that is, a definite cause for the accident. in which there js no negligence on the part of the defendant. or (2) such care on the defendant's part as leads to the conclusion that the: accident did not hap- ‘pen because of want of care by him, but was due to some other cause, although the exact cause may be unknown. Ti such evidence has at least as much convineing force as the inference and other evidence, if any, supporting the inference. then you, will find against the plaintiff on that issue.” [C.. ° 14-A.}- aa . my oe 7 ‘The trial court, over petitioner's objections that the instruction was not applicable where under the evidence the res ipsa loquitur doctrine applies, gave respondents’ instruction No. 27-A: “The mere fact that an accident happened, con- - sidered alone, does not as a rule permit’ the jury - to draw the inference that the accident was caused by someone’s negligence.” [R. 156-158, 188, 194. ] The jury returned a verdict for the respondent on which the court entered judgment. [C. ‘15-16.] A timely appeal was taken [C. 17] and on appeal the judgment was affirmed. (Apps. A and B.) The Court of Appeals, while it. expressed’ doubt about the applicability of res ipsa in .the“light of the ‘direct evidence” offered by respondents as. to its cause, did not reach that question. (App. A, pp. 5-6.)* Rather, enunciating a proposition which had been argued’ neither in ‘the trial court nor on appeal, the Court of Appeals held that the res ipsa instruction requested by “petitioner incorrectly stated the law in that, as framed. ‘it did not make the inference of negligence merely per-— — missive and thus subject to rejection, even in the ab- . sence of evidence to meet or balance it. (App. A, pp. 6-7). « eo ae The giving over objection of the instruction. that as a rule an inference of negligence’may not be drawn from the mere fact that-an accident happened. consid- ered alone, was held not prejudicial even if res ipsa ~ 8This Court may exercise its discretion and pass upon the ques- - tion not reached below. H’everhauser SS Co. v. Nacirema Co., 355 U.S. 563, 569; McAllister v. Magnoiia Petroleum Co. 357 U.S. 2212 226. Petitioner urges that ‘the Court's discretion should bé so exercised concurrently with consideration of the im- portant issues which were passed upon, nails was. applicable because the instruction would have been proper as an° introduction’ to a res ipsa. ir struction. (App. A, pp. 7-8.) T his point was not urged by the re- -spondents, their argument being limited to the proposi- tion that the instruction was proper. because res ipsa _was inapplicable. Petitioner urged ‘on reer that the holdings on issues which had not been argued to the Court should be reconsidered with the benefit of briefs and argu- ment from counsel. The Petition for Rehearing was denied on April 7, 1964, and this application for cer- tiorari follows. Reasons for Granting the Writ. .Certiorari is sought here on the grounds that the ‘court below has decided important questions of federal law in a way in conflict with applicable decisions of this Court. Although the holdings of this Court are contrary to the holdings of the Court of Appeals here, there are apparent inconsistencies in the language of various decisions of this Caurt on the matters passed upon below; these differences in language relate to im- portant questions of federal law. lead.-to inconsistent applications of the law and should be clarified. In addition, the decision below is in conflict with decisions of other courts of appeals on the same matters. These important questions affect the administration of the Jones Act which itself expresses, an important public palicy. There has been mugh confusion concerning the appli- cation under federal law of the doctrine of “res: ipsa: loguitur. The English cases beginning with those upon which this Court based its early decisions and continu. ew LE DR PI ce. oe ing to the present time* and leading cases decided ‘by this Court? hold that the doctrine creates an infer- ence or a presumption which, while’ it- does ‘not shift the burden of proof, must be met or balanced by the defendant’s proof that no negligence’ of his caused the | accident. The principal case relied on below, Sweeney v. Erv- mg, 228 U. S. 233 (1913), holds only that res ipsa does not shift the burden of proof but it goes on to use language which is clearly susceptible of the con-” struction that ‘the inference may be rejected even though no‘evidence relating to the absence of negligence is introduced: This /anguage has been picked up in three other Supreme Court cases,® wherein the holdings relate to other aspects of the doctrine. The Jesiouowski and Johnson cases were relied on ' by the court below without any consideration either of their-dicta aspects or of the definite holdings in other Supreme Court cases supporting petitioner’s position, ‘Christie v. Griggs, 170 Eng. ‘Rep. 1088, 2 Camp. 79. Byrne v. | Boadle, 139 Eng. Rep. 299. Halsbury’s, Laws of England (3rd ed. 1959), Vol. 28, page 80. Kearney v. ant London, Brighton é& South Coast Ry. Co., 5 Q.B. 411° (187Q). aff'd 6 Q.B. 759 (1871). Scott v. London & St. Katherine Socks Co., 159 Eng. Rep. 665 (1865). Frederick Pollock, The Law of Torts ( t andop Ed. 1887), pages 421-2. Moore v. R: Fox & Sons [1956], 1 All E.R. 182 (C. A. 1955). Walsh v. Holst & Co:. Ltd., 3 All ER. 33 (C. A. 1958). Great Western Ry. Co. of Canada 7. Braid, 15 Eng. Rep..640. (1863). 5Stokes v. Saltonstall, 13 Pet. 181, 10 I. ed. 115 (1839). New Jersey RR & Transp. Co. v. Pollard, 22 Wall 341, 23 L. ed. 877 (1875.) Inland and Seabourd Coasting Co-v. Tolson, 139 U. S. 551 (1891). San Juan Light & T. Co. v. Requena, 224 U. S. © 89. (1912). Gleeson v. Virginia Midland Ry. Co., 140 U. S. 435 (1891). Sonthern R. Co. “Carolina Division v. Bennett, 233 ~ LU. Ss. 80 (1914). 6Jesionowskt v. Boston & Maine RR. 329 U. S. 482 (1947). Johnson @. bd nited States, 333 U. S.-46 (1948). Che sapeake cy O.R. Co. v Thompson Mfg. Co. 270 U.S. 416 (1926). a with which the decision below is in conflict. - The deci- sion of the Court of Appeals in this case .is also in’ -conilict with a decision of the Court of Appeals for the Third Circuit. Weigand v. Pa. R. Co.,.367 F. 2d 281 (C. A. 3, 1959). The court below also raised a doubt as to, sions) it did not decide: whether res ipsa applies in a situation in which the defendant presents direct evidence of the cause of the accident. Decisions of this Court and of the various courts of appeal including that of the Ninth Circuit indicate that there is no basis for this doubt.7. As a preliminary step’to considering the im- portant question of the nature of the inference of negli- gence in a res ipsa situation, this question. soph be laid to rest. The: Court of Appeals held that even if res ipsa Joquitur was applicable it was not error to give an in- struction stating the general rule that no inference of negligence, can be drawn from the mere happening of an accident. This’ holding is in conflict with decisions from other circuits and presents an important question which. this Court should resolve. Because of these conflicts: and the: confusing state of the law clarification by this Court is of great im- portance to the large volume of Jones Act and other cases involving federal law where the doctrine of res ipsa loquitur may be applicable. 70'Neill v. B. & O. BR. Co., 348 U.S. 956 (1955), revers- ing Baltimore & O. R. Co. v. O'Neil. .211 ¥. 2d 199 (1954). Miller v. Cincinnati, ete. KR. Co. 317 1. 2d 693, 698 (C. A, 6, 1963). Pedal v. Hallack & Howard Lumber Co., 226 F. 2d 526. 538 (C. A. 9, 1955). Stohes v. Saltonstall, 13 Pet. 181, 10 L.. ed. 195 (1803). Inland & Seabcard Coasting Co. v. Tolson, 139 U.S. 551 (1891). Great Western R. Co. of Canada wv. Braid, 15 Eng. Rep. 640 (1863). San Juan Light & T. Co. v. Requena, 224 U. S. 89 (1912). Weigand v. Pa. R. Co., 267 ¥. 2d 281 (C. A. 3, 1959).- , —10— . I. : The Fact That a Defendant in a Case Where the Doctrine of Res Ipsa Loquitur Applies, Offers . Direct Evidence of the Cause of the Accident, Does Not Render the Doctrine Inapplicable nor Does It Justify a. Refusal to Instruct on the Sub- ject; the Doubt Expressed Below on This _. ter Should Be Removed. ' Although the court below expressed “considerable doubt” as to whether the instruction. on res ipsa should have been given “because here direct evidence was not ; lacking” (App. A, pp. 5-6), the law is definite that the: instant case was a proper one for the apglication of ‘thi? doctrine, and the giving of an appropriate instruction .on it to the jury. This Court in O'Neill v. B. & O.. R. Co., 348 U.S. 956, by reversing the decision of the Court of Appeals,” made it ciear that the introduction ~ of direct evidence concerning the cause of an accident does not eliminate the res ipsa doctrine from a case in which it is otherwise appropriate. The Third Circuit had reversed a judgment for the plaintiff, who had relied on the doctrine of res ipsa, on the grounds © that the defendant’ s uncontroverted: ev idence\show ed “that the defendant had not been negligent and that the ‘inference of negligence was thereby. effectively dispelled as a matter of law. Baltimore & O. R. Co. v. O'Neill, supra, 211 F. 2d 190.. Judge McAllister. dissenting in that case, took .the | position that defense testimony of fered te meet the int SThe name of the case below was Paltimore & O. R. Ca. v. O'Neill («C. As 3. 1954), 211 F. 2d 190. . —ll— ference of negligence is to’be weighed by the jury against the inference, except in those cases where the “entire evidence is such that the presumption cannot stand-against it.” and where the evidence is “so .con-— clusive that the minds of reasonable men could not dif- fer ag to the conclusions to be drawn therefrom.” He further’ observed that :. gts. e “It is not enough that the ev idence of the defendant would, if true. be sufficient to rebut the presump- | tion, because it is for the jury to pass upon the credibility of the witnesses and the truth of the testimony.” [211 F. 2d at 197.] In a per curiam order, this Court reversed the judg- ment of the Third’ Circuit. and reinstated the judgment “of the District Court. O'Neill @. B.& O. R. Co., supra, 348 U. S. 956. That-action has been interpreted by the Courts of Appeals for both the Third Circuit and the - Nénth Circuit as indicating approval by this Court of: - Judge MeAllister’s dissent. Miller.v. Cincinnati, etc. R. Co., 317 I. 2d 693, 698 (C. A. 3,-1963); Bedal z Hallack & Howard Lumber Co., 226. F. 2d 526, 538 | (CA. 9, 1955). . , The views expressed by Judge Me. Allister find ad- ditional support in previous opinions Of this Court: Stokes v. Saltonstall, 13 Pet. 181, 10 L: ed. 115 (1839) ;. and Inland. & Seaboard Coasting Co. v. Tolson,, 139 U.S. 331 (1891). In both of these cases, defendants offered evidence tending to show no neglige ‘nce on their part, and. it. was-nevertheless held proper to have in- ‘structed the jury on principles of res ipsa. To the same ‘eo —12— _ . effect, see Great Western R. Co. of Canada v. Braid, 15 Eng. Rep. 640 (1863). at Indeed, it has frequently. been held that the jury may . properly. be instructed on res ipsa eyen where the plain- “tiff Shimself offers direct evidence) tending to establish -specific negligence on the part of the defendant. See, e,g.; Stokes v. Saltonstall, supra, 13 Pet. 181, 10 L. ed. /115; San Juan Light & T. Co.'v. Requena, 224 U..S. 89; Weigand v. Pa. R. Co., 267 F. 2d 281 (C. A. 3, 1959); Texas & Pac. R. Co. v. Buckles, 232 F. 2d 257 (cert. den. 351 U. S. 984) (C. A. 5, 1956). Moreover, in the instant case the “explanation” of fered by respondents tended to confirm rather than to negate their negligence. The evidence offered by re- spondents indicated that the fish fell either because the _ hook was‘not. properly inserted or because with the method of hardling the fish when the accident occurred, | as distinguishea from another method which was some- times used, the occasional dropping of a fish was un- avoidable. .( App. A, pp. 2-3.) Thus, according to re- spondents’ explanation, the accident occurred either be- cause of the failure to properly execute the method of work or because of a deliberate choice of a. dangerous -.method. This is hardly evidence which so conclusively negates ‘the res ipsa. inference of negligence, as to _ climinate it from the case. ~ \ *